Texas Supreme Court lets gender-affirming care ban remain in effect

The Texas Supreme Court has refused to block the state’s ban on gender-affirming care for transgender minors, allowing the ban to remain in effect while a lawsuit against it proceeds.

The court ruled that the families, health care professionals, and organizations challenging the ban are unlikely to succeed in proving that it violates the Texas constitution.

“We conclude the Legislature made a permissible, rational policy choice to limit the types of available medical procedures for children, particularly in light of the relative nascency of both gender dysphoria and its various modes of treatment and the Legislature’s express constitutional authority to regulate the practice of medicine,” Justice Rebeca Aizpuru Huddle wrote for the 8-1 court majority.

“We therefore conclude the statute does not unconstitutionally deprive parents of their rights or physicians or health care providers of an alleged property right in their medical licenses or claimed right to occupational freedom. We also conclude the law does not unconstitutionally deny or abridge equality under the law because of sex or any other characteristic asserted by plaintiffs.”

In her dissent, Justice Debra Lehrmann wrote that the court “effectively forecloses all medical treatment options that are currently available to these children. And it does so under the guise that depriving parents of access to these treatments is no different than prohibiting parents from allowing their children to get tattoos. Of course, there is nothing remotely medically necessary about tattooing.”

“This particular parental right — to make potentially life-saving medical decisions for one’s children — certainly does not fall within the same category as tattooing, tobacco use, or even child labor,” she continued.

The ban went into effect September 1. A lower court had issued a temporary injunction to block it, but when the state appealed directly to the Supreme Court, that put the temporary injunction on hold.

Republican Gov. Greg Abbott signed Senate Bill 14 into law in June 2023. It bans surgery, hormone treatment, and puberty blockers for the purpose of gender transition for people under 18, while allowing those procedures for treatment of congenital anomalies, early-onset puberty, and other conditions. Genital surgery is almost never performed on minors.

The lawsuit against it was filed last July. The plaintiffs are represented by Lambda Legal, the American Civil Liberties Union and its Texas affiliate, the Transgender Law Center, and pro bono lawyers from the firms of Scott Douglass & McConnico LLP and Arnold & Porter Kaye Scholer LLP.

“It is impossible to overstate the devastating impact of this ruling on Texas transgender youth and the families that love and support them,” Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal, said in a press release. “Instead of leaving medical decisions concerning minor children where they belong, with their parents and their doctors, the Court here has elected to let politicians — in blatant disregard for the overwhelming medical consensus — determine the allowed course of treatment, threatening the health and the very lives of Texas transgender youth. We will continue to fight measures like SB14. These youth and their families deserve no less.”

“Certain Texas politicians’ obsession with attacking trans kids and their families is needlessly cruel,” added Ash Hall, policy and advocacy strategist for LGBTQIA+ rights at the ACLU of Texas. “We will not back down until our trans youth have the health care they deserve and our state is a welcoming place to all.”

“The Texas Supreme Court got it wrong today by ruling against families, against doctors, and against Texas’s future: our kids. Every Texan, transgender or not, deserves the freedom to access the health care they need when they need it,” said Brian K. Bond, CEO of PFLAG National, one of the organizational plaintiffs in the case. “To transgender Texans of all ages, PFLAG has your back. We’re going to continue to fight to ensure you are safe, celebrated, affirmed and loved.”