Loe v. Texas

Battle lines are currently being drawn at the Supreme Court of Texas over whether gender transition surgery on minors constitutes an exercise of parental rights or irreversible damage to a child’s well-being. 

A group of self-described “conservative” former legislators from numerous states have rallied together in opposition to SB 14, a bill that ​​restricts chemical and surgical gender transition procedures on minors. 

They argue that banning such procedures undermines the right of parents to make decisions regarding their children’s health and well-being.

After SB 14 was signed into law by Governor Abbott, a district court in Travis County issued an injunction in an attempt to prevent the State of Texas from enforcing SB 14. The Texas Attorney General’s office swiftly appealed directly to the Supreme Court of Texas, putting a halt to the injunction and triggering an ongoing legal battle.

For the past few months, briefs have poured in from groups across the country seeking to influence the court’s opinion. The arguments essentially run the gambit from “parents don’t have that many rights” to “parents have unchecked rights in this area.”

Family Freedom Project is involved in this lawsuit to show the courts that there is a clear path for how SB 14 can be upheld to protect children without weakening the constitutional rights of parents.

These procedures, advocated by the aforementioned representatives, are the subject of increasing medical malpractice lawsuits nationwide, including in Texas.

European countries that led the way in designing these procedures are now banning them outright to protect children.

Notably, the leading “conservative” former legislator arguing that transition surgery on minors is a parental right is Sarah Davis, widely known during her tenure in Austin for her steadfast and very public record of opposing parental rights, particularly in the medical arena.

In 2017, she debated with conservative lawmaker Jeff Leach on whether the government should have the ability to mandate a child’s vaccination while in the temporary care of CPS–before a court had even decided whether the children should have been taken at all.

Citing her “extensive and varied experience working to protect and support parents and families through the political process,” Davis argues that a ban on gender transition surgery for minors requires “usurping the parental role and intruding into a family’s medical choices,” something Davis openly advocated for during her time as a legislator.

Despite her seemingly inconsistent stances on parental rights, Sarah Davis’ brief does get one thing clearly correct: If the court adopts the theory that the ban should be upheld because parents don’t have that many rights to begin with, the implications for parental rights in other areas could be significant.

The issue of gender transition surgery on minors has prompted abnormal political stances from both sides. Conservatives seeking to ban the procedures find themselves arguing that parents don’t really have that many rights. Advocates on the left who have long opposed parental rights legislation make staunch defenses of the constitutional rights of parents.

One hundred years of case law and legal tradition in the United States offers us a much clearer and more satisfactory answer–one born out of principle and not political convenience: Parents do have the right to make medical decisions for their children, and the state can and should intervene only when necessary to prevent significant harm to the child. 

Despite pages and pages of legal analysis, what nearly every party currently arguing before the Supreme Court of Texas has failed to do is to engage the difficult but necessary question. The question is not whether parents have the right to make medical decisions. 100 years of case precedent establishes this beyond reasonable debate. The question is when the state may interfere despite the fact that parents have these rights.

The law gives us a clear answer, one that the Family Freedom Project outlined in our brief before the court in detail: The state can and must interfere only when necessary to protect children from significant harm, and that’s exactly what SB 14 does. 

As we argue in our brief:

Appellees correctly state that parents have a fundamental, constitutional right to raise their children as they see fit. FFP has frequently argued this same point before this Court. However, as this Court has made clear and as FFP has consistently acknowledged in past briefs…this right is not without limits. The State has a clear right and duty to protect children from decisions that will jeopardize their health or safety. Genital mutilation and chemical castration of minors are clearly acts that fall within the State’s compelling interest to protect children and which the State has a right and even a moral duty to prohibit. If the State cannot interfere here, it cannot legitimately interfere anywhere.  

FFP fully supports the State’s position that S.B. 14 is constitutionally valid and enforceable. However, FFP holds the position that the legislation, since it infringes on a parent’s fundamental, constitutional right to make medical decisions for his or her child, must pass strict scrutiny. S.B. 14 easily passes this test. 

Read the rest of FFP’s Brief.

What is the Strict Scrutiny test?

Under the Strict Scrutiny test, the court evaluates whether the state’s interference in a fundamental right is permissible. It does this by answering two questions:

  1. Whether the state has a compelling interest in regulating the type of conduct in question. Because of the state’s interest in protecting the well-being of children, to answer this question, the court will consider whether performing gender transition surgeries on minors significantly damages the health and well-being of those children. FFP argues that it clearly does.
  2. Secondarily, the court must find that the regulation is “narrowly tailored.” Under this prong, even if the state proves that it has a significant interest in regulating the conduct in question because of the potential for harm to the children, the court will still require it to prove that its method of regulation is “narrowly tailored” to regulate only the specific conduct that is harmful and that it does not unnecessarily burden the rights of the parties more generally by being too broad. Because SB 14 regulates only the particular procedures known to inflict irreversible damage on children, FFP argues that the law passes this test as well.

In the trial court’s initial order, the judge concluded that the state had no compelling interest in protecting children from gender transition procedures and that the law was not narrowly tailored. The Supreme Court of Texas now has the opportunity to revisit the trial judge’s decision.

Oral arguments in the case are currently scheduled for January 30. The case could have a significant impact on parental rights in Texas.

FFP is actively working to safeguard the constitutional rights of Texas parents by intervening in this case to show the court a clear legal path for how the law can be upheld without weakening parent rights.

FFP works in the courts in cases related to child welfare and parental rights, fighting to establish a clear jurisprudence that ensures equal access to justice for all Texas families, regardless of background or socioeconomic status.

Preserving constitutional principles is possible without compromising the protection of parental rights and children.