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