Texas Supreme Court hears legal challenge to ban on gender-transition care for kids

People line the railings of the outdoor rotunda at the Texas Capitol and wave signs during the "Fight for our Lives" rally in opposition of anti-LGBTQ+ bills on March 27, 2023. (Evan L'Roy/The Texas Tribune, Evan L'Roy/The Texas Tribune)

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The Texas Supreme Court heard a legal challenge Tuesday to a new state law banning doctors from prescribing gender-affirming care for transgender youth, a prohibition that a district court judge said was unconstitutional.

After Gov. Greg Abbott signed the measure barring transgender Texas youth from accessing puberty blockers and hormone therapy, some of their families filed a lawsuit seeking to block the law from going into effect. They argued the new law violates their parental rights by stopping them from providing medical care for their children and it discriminates against transgender children on the basis of sex.

After a Travis County district court temporarily blocked the law from going into effect, arguing that it infringed on Texas parents’ right to make medical decisions about their children, a state appeal to the Texas Supreme Court enabled the law to go into effect in September.

Kennon Wooten, a partner with Scott, Douglass & McConnico who argued on behalf of the families, said that Senate Bill 14 uniquely strips away a parent’s right by narrowly targeting a specialized form of health care for a distinct group of people.

“In this case, what we have is the state defining the rights so specifically … we risk death by a thousand cuts of the fundamental right under the Constitution that parents have to make decisions about the care for their children,” Wooten said.

The state reasserted its stance that it has a vested interest in protecting the well-being of Texas youth, which it claimed the law does by preventing children from taking medications that have long-lasting impacts.

“Minors, generally, cannot get tattoos,” said Natalie Thompson, an assistant solicitor general for the state, referencing limits the state places on children compared to adults. “Minors, of course … cannot have alcohol or nicotine and even in medicine there are examples.” Thompson cited ephedrine, a medication used to treat low blood pressure that Texas law states can only be sold to individuals older than 16, among other restrictions.

The justices spent just under an hour probing each side’s arguments, asking why the state would restrict health care supported by all major medical associations and where the line must be drawn when it comes to parental rights.

Republican lawmakers last year passed SB 14, which restricts doctors and hospitals from administering puberty blockers and hormone therapy to treat gender dysphoria — a dissonance some people feel between their sex assigned at birth and their gender identity. The law was part of a broader coalition of bills that LGBTQ+ advocates say have targeted their community.

Some Texas Republicans campaigned on prohibiting gender-affirming care under the banner of protecting children, despite protests from the young people who receive these treatments, their parents and medical associations.

National and Texas-based medical groups oppose laws that restrict access to puberty blockers and hormone therapy. Doctors say these treatments are lifesaving for transgender youth who face higher rates of suicide attempts and mental health problems than their cisgender peers.

While the justices did not hand down a decision, they considered the option of ruling on the constitutional merits of SB 14, or sending the case back to the Travis County district court for a full trial. The high court is still considering the case and did not provide a timeline of when a decision will come down.

The state hoped that the all-Republican Supreme Court would make a final decision in their favor. Legal groups advocating for the families asked the high court to kick the case back to the district court so more evidence could be reviewed.

“It's important for people to be able to tell their stories,” Lynly Egyes, legal director of Transgender Law Center, one of the law groups representing the families, said to reporters after the hearing. “We want the families heard. We also want the doctors heard because it's really important for everyone to have a better understanding of the impact of SB 14 on people's lives.”

When State district court Judge Maria Cantú Hexsel heard from the parents suing the state, she agreed with their assertion that Texas had violated their rights. In her Aug. 25 decision, she wrote SB 14 “interferes with Texas families’ private decisions and strips Texas parents … of the right to seek, direct, and provide medical care for their children.”

The attorney general appealed the district court’s order directly to the state’s highest court, which superseded Cantú Hexsel’s decision and enabled the law to take effect last September.

During Tuesday’s hearing, the justices posed several hypotheticals to Wooten, the lawyer representing the families.

“What if we had a situation where a child says I feel like an amputee,” Justice Jimmy Blacklock said, posing a speculative analogy to children who identify as transgender. Should Texas allow a parent to let a doctor remove one of the child’s limbs, he asked.

Wooten argued that no matter the hypothetical situation presented, Texas’ laws must still pass tests of constitutionality. While the state has a right to regulate medicine, she argued, SB 14 crossed the line of infringing on a parents’ constitutional rights.

The state argued the law didn’t interfere with a parent’s rights because a third party wasn’t making decisions on behalf of the parents, only removing an option.

“What Senate Bill 14 does is take certain medications off the table entirely,” Thompson said.

Skeptical of that assertion, Justice Debra Lehrmann asked how the law wasn’t interfering with parent’s decisions based on consultations with doctors and recommendations for medical groups. SB 14 enables some children to receive puberty blockers as long as that medication is not used to treat gender dysphoria.

Thompson responded that those associations that support the prescription of gender-affirming care — such as the American Academy of Pediatrics and the American Medical Association — have been “ideologically captured.”

Blacklock suggested that the issue was particularly difficult for the court given the disparate opinions about gender-affirming care, and perhaps is best left to legislatures to decide.

“It seems to be what the court is really asked to do is resolve what is ultimately a moral and philosophical question as opposed to a scientific question about the nature of men and women,” the justice said.

Texas is now one of 23 states that restrict some form of gender-affirming care for transgender people under 18. Other states, like California and New York, have passed laws protecting access to care, which has created a patchwork of health care access similar to the mosaic of abortion laws that has emerged since the U.S. Supreme Court overturned Roe. v. Wade in 2022.

Similar legal battles are moving through the courts across the country. Parents of transgender youth in Tennessee asked the U.S. Supreme Court to weigh in on the issue in November.

The debate over gender-affirming care, a leading issue in the fight for LGBTQ+ rights, was central to a broad swath of bills Texas lawmakers pushed through the 2023 legislative session. Republican politicians also passed restrictions on sexually explicit drag shows and transgender athletes last year, but the implications of SB 14 are long reaching and profoundly affecting the lives of Texas families, said doctors who practice gender-affirming medicine.

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