Texas Supreme Court to Hear Arguments Over Ban on Gender-Affirming Care for Transgender Minors

UPDATE: The Texas Supreme Court refused to block the ban on certain medical treatments for transgender minors, saying the state legislature had a rational basis for passing the law and that it does not improperly infringe on the rights of parents to make medical decisions for the children or on physicians’ abilities to treat patients. The court also said the law does not constitute sex discrimination and declined to treat transgender people as a protected class.

The Texas Supreme Court will hear arguments on January 30 in a case challenging a state law banning certain medical treatments for transgender children, a topic that has become the subject of heated debates around the country.

The ban prohibits the use of puberty blockers and hormone therapy when used as gender-affirming care for minors. The plaintiffs include parents of transgender minors, on behalf of themselves and their children, and physicians who treat transgender patients. They are asking the court to reinstate a temporary injunction blocking enforcement of the law. The state of Texas is arguing for reversal of the temporary injunction and dismissal of the lawsuit.

The plaintiffs filed suit in July 2023 claiming the law deprives parents of their fundamental right to make medical decisions for their children, in violation of the Texas Constitution’s due course of law provision. They also argue that it runs afoul of state constitutional equal rights protection because it discriminates based on sex and transgender status. The physician plaintiffs claim violation of their property interests in their medical licenses and that the ban prevents them from exercising their constitutionally protected occupational freedom.

A lower court judge ruled in August that the plaintiffs were likely to succeed on the merits and that a statewide temporary injunction preventing implementation of the ban was necessary to prevent “probable, imminent, and irreparable” injury to transgender children and their families. The lower court also determined that the ban infringed on the state’s equal rights clause because it discriminated against the plaintiffs based on both sex and transgender status through the prohibition of “evidence-based medical treatments for transgender youth which remains available to cisgender youth.” The law allows the treatments, including puberty blockers, to address medical conditions like precocious puberty.

Texas filed an appeal to the state supreme court, Texas v. Loe, which automatically paused the injunction. The plaintiffs then filed an emergency motion asking the court to keep the injunction in place, but the court denied that request and the law went into effect in September.

In its briefing to the supreme court, Texas recognizes that parents have a general right to make decisions concerning “the care, custody, and control of their children,” but argues that does not extend to a “substantive right to obtain these medical procedures.” The state asserts that the due course clause, which says no citizen “shall be deprived of life, liberty, property, or privileges” without due process of law, “likely does not protect substantive legal rights at all” and instead that its “text and history” suggests it protects only procedural rights. Regarding the physician’s constitutional claims, the state argues they have no protected right to perform specific treatments, and that doctors are free to continue treating transgender patients in other ways.

The state also argues that even if the court does not agree that the due course clause protects only procedural rights, it should still prevail because the rights of a parent do not extend to choosing a treatment that would harm their child, and that the Texas legislature had determined “the prohibited gender-transitioning treatments are too risky to be performed on children, who lack the maturity and cognitive development necessary to appreciate their long-term effects.” Texas cites testimony from a physician who elects not to use puberty-blockers for that reason, as well as doctors and researchers who say there is not consensus on the safety or effectiveness of such treatments.

But the larger medical community has repeatedly asserted its support of the treatments at issue in the ban. The American Academy of Pediatrics, joined by more than a dozen healthcare professional organizations, filed an amicus brief in support of the plaintiffs, stating that a ban on “such evidence-based medical care to adolescents who meet the requisite medical criteria puts them at risk of significant harm.”

The parties also disagree as to the level of scrutiny that should be applied to laws targeting transgender people. The plaintiffs point to the fact that the law allows some of the same treatments banned for transgender youth to be used for cisgender youth — such as those experiencing early puberty — as proof transgender people are being specifically targeted by the ban. They argue that transgender people should be treated as a protected class, with any law targeting them subject to heightened scrutiny. The state maintains that the transgender community are not a protected class because “transgender status” is not in the state constitution’s explicit list of suspect classes and a court adding it would raise policy questions better left to the legislature. Therefore, the state says, the ban needs only survive a rational basis review.

Finally, the plaintiffs argue that the state is requesting rulings far outside the proper scope of the appeal, and that the Texas Supreme Court need only determine if the trial court properly issued the injunction. The state is asking the court to rule on the merits without the benefit of a developed record and trial, the plaintiffs say.

This is not the first time the Texas Supreme Court has addressed the state’s efforts to discourage gender-affirming care for transgender youth. In 2022, Gov. Greg Abbott instructed the state child protective services agency to open child abuse investigations into families with children receiving gender-affirming treatment. A family that was investigated under that directive sued in state court, and the court issued a statewide temporary injunction halting the investigations. The Texas Supreme Court said the governor did not have the authority to make the directive. Though the court upheld the injunction preventing investigation of the plaintiffs, it did not uphold a statewide injunction, citing procedural defects. That case and an additional lawsuit related to the child protective services investigations are ongoing.

In Loe, Texas’s supreme court will be the first high court in the country to consider whether a ban on gender-affirming care for minors violates substantive rights under a state constitution. A case pending before the Nebraska Supreme Court challenges a law that both bans abortion after 12 weeks of pregnancy and restricts gender-affirming care for youth, though those challenges are grounded in the state constitution’s single-subject clause rather than particular rights.

There have, however, been multiple federal cases challenging similar bans in other states under federal constitutional provisions analogous to the state claims presented in Loe. Resulting rulings have been mixed, and litigation is ongoing. The U.S. Court of Appeals for the 8th Circuit was sympathetic to the arguments of parents and transgender minors, temporarily blocking a ban in Arkansas. The 6th Circuit and 11th Circuit, meanwhile, allowed bans in Tennessee and Alabama to take effect.

But litigation over anti-trans laws in federal court is not necessarily indicative of outcomes in state court. Because some state constitutions have enumerated equal rights protections beyond those in the U.S. Constitution, state courts could provide an avenue for expanded LGBTQ+ rights. A state court in Montana, for example, granted a temporary injunction against that state’s ban on treatments for transgender children, including puberty-blockers, finding the ban was likely to be a violation of plaintiff parents’ equal protection rights under state law, which provides, the court said, “even more protection” than the U.S. Constitution. The oral arguments in Loe will provide a window into whether the Texas Supreme Court is inclined to do so.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.

Suggested Citation: Erin Geiger Smith, Texas Supreme Court to Hear Arguments Over Ban on Gender-Affirming Care for Transgender Minors, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 29, 2024), https://statecourtreport.org/our-work/analysis-opinion/texas-supreme-court-hear-arguments-over-ban-gender-affirming-care.