Justices on the Texas Supreme Court voiced concerns Tuesday about a new state law banning medical treatment for the purpose of a child transitioning to the opposite sex.
Discussions about the rights of transgender children are ones of “philosophy, morality, and religion,” but not science, Justice Jimmy Blacklock said.
“It’s hard for me to see the court as the arbiter,” Blacklock added.
Justice Jeff Boyd noted that parents’ authority to make decisions for their children goes only so far, citing state laws that prohibit marriage or driving a vehicle until a certain age.
The hearing marked the first time the all-Republican court questioned lawyers on the politically charged topic since the state’s legislature banned the treatments for children last year.
Texas is now among roughly two dozen state with laws that prevent minors from undergoing medical treatments for gender dysphoria until they are adults. Most of those states are defending the laws against challenges brought under the 14th Amendment due process and equal protection clauses. This is one of very few lawsuits to argue that the provisions also violate state constitutions, which sometimes provide more protection than the federal document.
Arguing in favor of the ban, Natalie Thompson, of the attorney general’s office, said the decision is “too weighty” for parents and doctors to make on behalf of children as young as 8. She said that medical research that shows the treatments are safe and effective is “captured by ideologues and activists.”
Transgender children, their parents, and doctors filed lawsuit last summer challenging the ban before it was set to take effect. Parents said it violates their constitutional rights to control the upbringing of their children. The doctors said it violates their right to practice medicine. Together, they said it unlawfully discriminates against the children based on transgender status.
A Democratic district court judge held a two-day bench trial in August, siding with the plaintiffs. Judge Maria Cantú Hexsel, of Travis County, said the law denied parents access to necessary and sometimes life-saving care for their children. She issued a temporary injunction, saying the parents were likely to win because the law is “directly at odds” with a state constitutional provision that gives them a right to make decisions about the care of their children.
Justice Jane Bland drew a response from Thompson about other medical treatments the state bans for children, including ephedrine to treat low blood pressure and tanning beds to treat certain skin diseases.
The lower court’s injunction drew a direct appeal from the Texas Attorney General’s office, which is defending the state in the case. The Supreme Court then denied the plaintiffs’ request for emergency relief from an automatic stay that kicked in with the appeal. That decision let the law go into effect Sept. 1. It will remain in effect pending the high court’s decision, which is expected by the end of June.
In written filings setting up Tuesday’s hearing, the state cited health concerns about the lack of long-term scientific studies on the impact to transgender children who receive gender-affirming care.
Pushing back, the plaintiffs’ lawyer, Kennon Wooten of Scott Douglass & McConnico, said the vast majority of the medical field agrees the treatments, which include puberty blockers, are safe and that therapy alone is ineffective.
“If doctors disagree, who gets to resolve that disagreement?” Blacklock said.
That depends if a fundamental right is violated, Wooten responded.
The law makes exceptions in certain cases. Children who started receiving treatment before June 1, when Gov. Greg Abbott (R) signed the law, are able to gradually stop treatment in order to minimize the risk of complications.
The law doesn’t apply to drugs to normalize puberty for a minor experiencing early puberty. It also doesn’t apply to treatments to a child born with a genetic sex development disorder.
Justice John Devine wasn’t present for Tuesday’s argument.
The case is Texas v. Loe, Tex., No. 23-0697, oral argument 1/30/24.
