AUSTIN, Texas (CN) — On Tuesday, The Texas Supreme Court heard, for the first time, oral arguments in a case concerning a state law enacted in 2023 that bans gender transitioning care from being provided to minors.
Five parents on behalf of their transgender children, along with three doctors who provide gender-affirming care and LGBTQ+ rights organizations, said in a July 2023 petition that Texas’ controversial Senate Bill 14 would ban necessary medical care for youth already receiving treatment and prevent physicians from doing their jobs. They are represented by the American Civil Liberties Union, the Transgender Law Center and Lambda Legal.
In August 2023, Travis County District Court Judge Maria Cantú Hexsel granted the plaintiffs’ request for a temporary injunction, blocking the state from enforcing its ban while the case proceeds.
In her opinion, Hexsel wrote that she believed that the parents “fundamental right” to control medical treatment for their children under the state constitution would be infringed by the law. Additionally, the judge wrote that the law would likely infringe on the physician’s right to occupational freedom, also under the state constitution.
During the state’s regular legislative session, banning gender-affirming care for minors was a key priority in the Republican-controlled statehouse. Senate Bill 14 was ultimately passed by lawmakers and signed into law by Texas Governor Greg Abbott. The law prohibits physicians from providing hormone therapies and/or surgeries to affirm the gender of someone who is still a minor. Violating the law may result in the revocation of the physician’s medical license and being further barred from obtaining it in the state.
The law does, however, permit such treatments to be used for minors experiencing precocious puberty or is born intersex.
The state made a direct appeal of Hexsel’s ruling to the high court. Arguing before the all-Republican panel on Tuesday, Assistant Solicitor General Natalie Thompson told the justices that the parental rights of the plaintiffs are not being infringed by the state’s ability to regulate the practice of medicine.
“Physicians do not have a constitutional right to perform gender transitioning procedures on children,” Thompson said.
Throughout her time fielding questions from the justices, Thompson claimed that the procedures prohibited under the statute pose a significant health risk to children and should thus be prohibited.
Justice Evan Young asked Thompson if there is historical context that shows the state’s ability to limit parents’ rights to make decisions for their children. In response, the state’s attorney said that SB 14 does not displace parents’ ability to make medical decisions for their children, but rather takes specific medical treatments “off the table entirely.”
Justice Debra Lehrmann then interjected, asking how the statute cannot interfere with the parent’s rights when the care they have sought or chosen is based on, what she called “medically sound guidelines that have been accepted by the American Medical Association, the American Psychological Association.”
“What the legislature had before it is evidence that the organizations your honor had mentioned have been ideologically captured,” Thompson said. “The evidence to support these interventions is questionable at best.”
Undeterred, Lehrmann retorted, “Nevertheless, aren’t the medical professionals the ones to make those decisions? I mean certainly more than the legislature.”
The American Academy of Pediatrics, the Texas Pediatric Society, the American Psychological Association and the American Medical Association have endorsed gender-affirming care practices for transgender youth. These medical groups as well as others have also argued against measures like SB 14, saying that they are harmful to young people who have gender dysphoria.
Kennon Wooten at Scott, Douglass and McConnico in Austin, argued for the plaintiffs in the case. In her opening remarks, Wooten said that SB 14 violates parents’ rights to make decisions for their children, deprives transgender youth of equal rights and infringes on healthcare providers’ occupational liberty.
Addressing Wooten’s arguments, Justice Jimmy Blacklock asked where the line should be drawn separating what decisions parents are allowed to make for their children and what decisions should be not protected in order to protect the welfare of children. Blacklock further questioned whether the court is being asked to weigh in on what is ultimately a moral or philosophical question rather than one based on science or law.
“The court has already drawn a line on the right, it is a fundamental right of the parents to make choices concerning the care of their children,” Wooten answered. “ Whether we describe it as philosophical, fact-based or whatever, there is going to be some quintessential merits-based analysis that happens within the courts.”
In an exchange with Justice Jeff Boyd, Wooten said that the plaintiffs are asking the court to send the case back to the trial court to further develop the record of their case instead of having the high court rule on the merits of the case at this juncture.
After the arguments, the court did not indicate when a ruling in the case will be released. Texas Supreme Court decisions are typically released in June after the court has concluded hearing arguments in its current term.
For nearly two years, Governor Abbott and Attorney General Ken Paxton have worked to limit transgender youth from obtaining gender-affirming care in the state. In 2022, Paxton’s office released a legal opinion claiming that the use of puberty blockers, hormone therapies and surgeries constituted child abuse when provided to a minor. Abbott used the opinion to direct the state’s child protective services to investigate the parents and doctors of transgender children who were provided these treatments.
In November 2023, Paxton requested the medical records of Texas children who received treatment at Seattle Children’s Hospital in Washington state. The hospital has sued the attorney general to block the release of the records. A similar request was made last week, this time to a Georgia clinic that provides gender-affirming care to patients across the nation.
Gender-affirming care bans have been enacted in Republican-led states across the country. Including Texas, 22 states have taken steps to ban transition-related care to youth. Ohio became the most recent state to follow course after the legislature’s Republican supermajorities in both houses overcame a veto of the bill by the Republican Governor Mike DeWine. Alabama, Florida, Oklahoma, Idaho and North Dakota have gone further, making it a felony offense to provide such care to minors.
In addition to limiting access to gender-affirming care, Texas lawmakers have also passed laws prohibiting transgender athletes from playing on sports teams that match their gender identity.
from Courthouse News
