Child Gender Transition: The TX Supreme Court Case that Everyone Got Wrong, and Why It Matters

Key Facts:

• SB 14 is a Texas law prohibiting chemical and surgical gender transition procedures on minor children.
• The ACLU sued to overturn the law, arguing that parents have the constitutional right to make medical decisions for their children, including by obtaining gender transition procedures.
• Gender transition drugs and surgeries cause significant and lifelong harm to children, as demonstrated in numerous briefs to the court.
• The Family Freedom Project and the Pacific Justice Institute urged the Texas Supreme Court to protect children without weakening the constitutional rights of parents. To do this, the court needed only to conclude that 1) parents do have the right to make medical decisions for their children, but 2) the state is permitted to interfere in a limited way when necessary to protect children from significant harm.
• The Texas Attorney General’s office and others urged the court instead to uphold the law through a new method that would greatly weaken parental rights.
• On June 28, 2024, the Texas Supreme Court adopted this new method proposed by the Attorney General’s office, with serious long-term implications for the strength of parental rights in Texas.

Parental rights hold a special place in constitutional law. For more than a century, the courts have stood at the gates of parental rights and operated a constitutional checkpoint.

Before the state can invade the domain of parental rights, it is stopped at the gate and must pass a constitutional test of highest order. If it cannot pass the test, the courts turn the state away and it is not allowed to enter the sacred realm of the family.

Across more than 100 years of constitutional jurisprudence, the courts have turned the state away at the gates when it sought to usurp control over a child’s education, religious upbringing, medical care, and numerous other invasions of parental rights.

While sometimes mismanaged by dogmatic judges, this gate has nevertheless stood as a bulwark against state overreach. Generations of American parents and children have been safeguarded through these strict constitutional protections.

But on June 28, 2024, the Texas Supreme Court opened a second gate. A gate few people are talking about, but through which the state may soon pass largely undetected.

In the case of Loe v. Texas, the ACLU sued the State of Texas to overturn a law that blocks children from receiving gender transition drugs and surgeries. To be clear, these drugs and surgeries cause lifelong, irreversible damage to a child’s body. The State had the right, indeed, the duty, to protect children from these dangerous treatments. Normally, though, parents have the constitutional right to make medical decisions for their children, and some parents wanted the treatments. Thus, the stage was set for the conflict.

To any right-thinking person, it was obvious from the beginning that children must be protected from these life-long, body-altering, deep-seated harms. The question was not if children should be protected. The question was how.

To accomplish this goal, the Texas Supreme Court had two options.

First, the court could stop the state at the gate of parental rights and force it to pass the test before it could be allowed to enter. To pass the constitutional test, the state would be required to show that it was invading parental rights only so far as was necessary to protect children from significant harm.

This approach is the traditional approach that, in slightly modified forms, has stood for more than 100 years. In multiple briefs to the court, the Family Freedom Project and the Pacific Justice Institute both urged the court in the strongest terms to hold the line by forcing the state to enter through the constitutional checkpoint. This would ensure that children were protected from these life-altering procedures and parental rights were respected at the same time.

However, a second solution was proposed. The Texas Attorney General’s office, along with multiple organizations who either implicitly or explicitly supported the position, urged the court to open a second gate, one where the state could come and go more easily, one that the courts shouldn’t guard so carefully. This second gate was necessary, they argued, so the state could enter the normally sacred realm of parental rights with minimal constitutional scrutiny in order to protect children.

Last Friday, the court opened that gate.

The Court’s Opinion

First, an important note of context: Texas has never had an Attorney General more favorable toward parental rights than our current AG Ken Paxton. Texas has never had justices on the Texas Supreme Court more attuned to the rights of parents than the justices currently on the court.

In a way, this makes the AG’s argument and the court’s final opinion all the more baffling.

Parental rights are protected as “fundamental rights” under the United States and Texas Constitutions. To achieve this status, a right must be one that is “deeply rooted in America’s history and tradition.”

Historically, the analysis would look something like this: a) Is it a deeply rooted tradition in American culture and law to recognize the right of parents to direct their child’s medical care? b) If so, this right of parents is a fundamental right. c) Therefore, the state must pass the constitutional checkpoint before it can enter.

In the court’s 8-1 opinion, it altered the analysis to look like this: a) Is it a deeply rooted tradition in American culture and law that a parent can make the exact decision that this parent is trying to make? b) If not, the parent does not have a fundamental right to make that exact decision. c) Therefore, the state can enter through a new side gate and regulate the parent’s decisions without passing the constitutional test.

The court held that, while parents do have a fundamental right to make medical decisions generally, there was no deeply rooted tradition of parents making the particular decision to get gender transition surgeries for their children. Therefore, the court reasoned, this decision falls outside parental rights and the state can regulate this decision without passing the constitutional test.

As a reminder, the normal constitutional test would be for the state to show that it was invading parental rights only so far as was necessary to protect children from significant harm.

The court arrived at this conclusion by observing that the diagnosis of gender dysphoria is novel and only became mainstream within the last few decades. Similarly, the treatments under dispute are also novel and recent. Therefore, there can be no deeply rooted tradition of American parents making the particular decision of getting their children these treatments for this diagnosis.

The threat to parental rights becomes immediately obvious: most modern parental decisions are novel in their application and can fall victim to this same analysis. 

• Can parents guide their child’s education? Yes. Can parents guide their child’s education by means of online classes or the use of digital devices? No, digital technology is novel and clearly not deeply rooted in American law and tradition.
• Can parents make medical decisions for their child? Yes. Can parents decide whether to vaccinate their child against a “Novel Coronavirus” that has never been previously diagnosed? Especially when the vaccine is brand new and developed by unconventional methods and novel medical technology? No. Parents don’t have that right. It’s novel and not deeply rooted in American tradition.
• Can parents allow their children to travel? Yes. Can parents allow their children to travel using Uber? No, Uber is based on modern, novel technology not deeply rooted in American tradition.
• Can parents guide their child’s medical care? Yes. Can parents refuse novel gender transition treatments on their children for the novel diagnosis of gender dysphoria? No, neither this exact diagnosis nor these exact treatments are deeply rooted in American law and tradition. If the state decides to require such treatments, parents have no constitutional right to refuse.

The problem is not that all of these parental decisions are now suddenly abolished. As some may object, there are good reasons why these parental decisions should be allowed and a court could choose to allow it. Nevertheless, the problem is that the state is now empowered to override a parent on any of these decisions and the parent may have little recourse in the courts.

The subtle but significant shift is that it is no longer a question of whether the right of parents is deeply rooted in American tradition, it is now a question of whether each modern application of that right is deeply rooted.

It is a feature of life that most of our decisions are novel in their application at some significant level because past generations did not live when we live and did not have the technology that we have. Under the court’s new paradigm, a parent’s constitutional rights now depend on whether the state can successfully frame the modern application of a parent’s decision as “novel”, something which does not take much creativity to achieve.

Given the general pro-family record of the Texas Supreme Court, we can have some confidence that they will allow the state to pass through this second gate only sparingly. But what about future justices 5 years from now? Or 10? Or 50?

To prevent the worst outcomes, the rights of Texas parents now hinge on the willingness of the Texas Supreme Court to micromanage disputes regarding each modern application of a parent’s decisions as they evolve into perpetuity.

The long-term future of parental rights in Texas may have never been so fragile.

To their credit, the justices on the court seemed to foresee this risk, many of them writing separately that they view the majority opinion to be extremely narrow and to not erode the general constitutional rights of parents. Indeed, a recurring theme in the majority opinion and the three concurring opinions is how strong parental rights still are. Given the longstanding and repeated history of these justices and the Texas Attorney General upholding parental rights, one cannot seriously question their general commitment to defending Texas families.

Yet, the new second gate still stands ominously open.

Justice Blacklock came closest to mitigating the damage to parental rights. In his concurring opinion, Blacklock, joined by Justice Devine, noted that the harm to children caused by gender transition procedures is so great that if the state had been forced to enter through the constitutional checkpoint, it would have passed the constitutional test and the Texas law protecting children would have been upheld. Justices Young and Busby similarly went to great lengths in their concurring opinions to stress the ongoing strength of parental rights.

Even so, under the court’s majority opinion, the state was not forced to pass the constitutional checkpoint, and it need not do so in the future.

The Dissent

Only one justice dissented. Justice Debra Lehrmann, generally seen as a more liberal justice on the court, objected strongly to the court’s weakening of parental rights.

“Despite the Court’s so-called recognition of fundamental parental rights, it fails to articulate precisely why or how it distinguishes between the parental decisions that are constitutionally protected and those that are not. . . The Court’s opinion thus puts all parental rights in jeopardy. . . The Court’s opinion may allow the Legislature to prohibit children from receiving vaccines, or it may not. The Court’s opinion may allow the Legislature to ban homeschooling, or it may not. The Court’s objection to a consistent and predictable standard of scrutiny that is applied regardless of whether it agrees with the parental decision at issue is concerning. Surely, whether a parent’s decision will be constitutionally protected does not depend on whether the Court agrees with that decision on personal or policy grounds. Such a conception of constitutional rights does a tremendous disservice to our Constitution. . . In attempting to carve out an exception to parental medical decision-making rights, the Court concludes that novel concepts—or at least, some novel concepts—are not entitled to [strict constitutional protection].”

Justice Lehrmann’s lone insistence that the state be forced to enter through the constitutional checkpoint and pass the constitutional test before it may interfere with parental rights is commendable.

Yet, she proceeds to conclude that the court should turn the state away at the checkpoint, not allowing it to enter and preventing it from protecting the children who are subjected to these dangerous medical procedures.

She characterizes the Texas law, which bans chemical and surgical gender transition treatments, as a “categorical bar” on individualized care for children with gender dysphoria. She appears to forget that, until recently, the mental health condition of gender dysphoria was treated successfully with psychotherapy through a “watchful waiting” approach. This is because gender dysphoria self-resolves in 60-80% of cases.

Conclusion

In the end, the majority of the justices reached the right conclusion (protecting children) through the wrong means (greatly weakening parental rights). One justice used the right means (forcing the state through the constitutional checkpoint) to reach the wrong conclusion (the state cannot protect children).

Loe v Texas is the case that everyone got wrong. Future parents and children in Texas will likely pay the price.

What Must Be Done

The second gate must be closed. It is untenable for parental rights to exist in any meaningful way when the state has a second gate into parental decision-making through which it can come and go mostly undetected.

Unfortunately, the chances that the court will close the second gate it just created are near zero.

At the Family Freedom Project, we anticipated that this day would come, although we certainly did not expect it to come from this generally favorable court. As we have long maintained, parental rights are too fragile when left entirely to the courts to manage.

We need a Texas Constitutional Amendment that closes the second gate and forces the state through the constitutional checkpoint any time that it seeks to invade the private realm of parental rights.

That is why FFP has been working for several years to pass just such an amendment.

Sign the petition to help us defend parental rights in Texas. A parental rights constitutional amendment in Texas is more important now than ever before.