On June 2, 2023, Senate Bill 14 (SB 14) was signed into law by Governor Greg Abbott, restricting chemical and surgical gender transition procedures on minors.
On August 25, 2023, a district court in Travis County issued an injunction to prevent the state from enforcing SB 14, a move that was widely anticipated by those closely following the ongoing legal debate.
Within an hour, the Texas Attorney General’s office had filed an emergency appeal directly to the Supreme Court of Texas (SCOTX), a move that automatically halted the order from the trial judge, which had blocked the law. The SCOTX is now set to determine if the law will be temporarily blocked while a full trial is pending. The ACLU filed a request that the high court at least temporarily block the law before it went into effect on September 1, but the court denied the request.
As a result, the law went into full effect on September 1, and gender transition procedures on minors are now illegal in Texas.
The ACLU and Lambda Legal are suing and challenging the constitutionality of SB 14 under the Texas Constitution. The ACLU is claiming that “The Texas Constitution forbids our state government from overriding the judgment of patients, their families, and their medical providers.” (ACLU, 2023) A central part of their argument revolves around the assertion that the ban on gender transition treatment for minors infringes upon parents’ rights to make medical decisions for their child as protected by the Texas Constitution.
In its order blocking the law, the trial court laid out the longstanding legal test, known as Strict Scrutiny, used to protect parental rights. This is the same test the Family Freedom Project (FFP) included in the Parental Rights Constitutional Amendment that we championed during the 88th Legislative Session.
What question is the court answering?
Under the Strict Scrutiny test, the court must evaluate two questions:
- 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.
- 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.
If the state is unable to prove these two elements, the court will find the law unconstitutional. 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.
Legal experts expected the trial court to rule this way from the beginning and anticipated the case going quickly to the appellate courts. The SCOTX will now consider the issue.
Family Freedom Project’s Position
We absolutely support the fundamental right of parents to make decisions for their children. However, 100 years of legal precedent establishes beyond debate that parents do not have the right to make decisions that significantly and irreversibly damage their child’s health and well-being through experimental medical procedures. The damage done to children through these procedures is now the focus of a growing number of medical malpractice lawsuits nationwide, including in Texas.
FFP’s role in this lawsuit is to show a clear path to the courts for how SB 14 can be upheld to protect children without weakening the constitutional rights of parents. There is even a pathway for the courts to use the opportunity to strengthen parental rights while upholding the law and protecting children. As experts on the constitutional rights of parents, FFP is positioned to help guide the legal discussion to this result through our briefs in the case.
The State of Texas has carefully crafted its law, which was passed in SB 14, to ensure that only those procedures that are detrimental to children are prohibited. FFP closely monitored the bill during the legislative session to ensure that it was crafted in a constitutional manner. The law is also careful to target the medical industry for enforcement, not children and families.
As a result of these things, the law passes constitutional muster and bans only verifiably harmful treatments for minors without violating the constitutional rights of parents.
The Road Ahead
After a ruling from the SCOTX on whether the law should be temporarily blocked, a trial will commence in the coming months, where extensive evidence will be presented from both sides. After the trial, the case will inevitably be appealed to the Court of Appeals in Austin and again to the SCOTX. FFP will file briefs with the court at each stage to ensure that the law is upheld in a way that does not weaken parental rights.
As the parental rights debate unfolds within the courts, the battle’s outcome holds the potential to further define the parameters of parental rights and government intervention into the family.