Parental Rights at Risk before the Supreme Court of Texas

FFP Files Emergency Brief Asking Court to Hold the Line for Families

Monday, January 29, the Supreme Court of Texas (SCOTX) heard oral arguments on a lawsuit challenging Texas’s ban on chemical and surgical gender transition procedures on minors. Wednesday, Family Freedom Project (FFP) filed an emergency response to arguments that were presented to the court yesterday and which threatened parental rights in Texas.

Supporters of the Texas ban are arguing for child protection from harmful, irreversible, experimental medical interventions, while critics claim it is discriminatory and harmful for transgender children and their families.

The Family Freedom Project has been involved in the case to show the court the legal pathway for how Texas children can be protected without jeopardizing parental rights.

SCOTX is now grappling with determining the limits of parental rights, a ruling that could have far-reaching consequences for Texas families. During Oral Arguments, the State’s legal team  argued that the ban doesn’t infringe on parental rights, emphasizing that it merely limits available medical options:

“Parents are still the ones who approve available medical intervention or decline available medical intervention,” Thompson said. “What Senate Bill 14 does is take certain medical treatments off the table entirely. That’s not an interference with a parent’s right.”

The State is essentially presenting parental rights as a set of limited options, which they characterized as choosing from a “menu” of what is legally allowed. Parents are essentially equated to customers in a diner, ready to meet their child’s needs. The state acts as a waiter, offering a set menu of choices. Parents can pick from this menu, but the state can remove options anytime, restricting the parent’s choices. This way, the argument says, the state can govern broadly without violating a parent’s constitutional rights. Parents still have the right to decide, but only within the limits set by the state’s menu.

Here is the problem: The rights of parents to raise their children are not created and fashioned by the government and served up as a menu. 

The State of Texas’ argument poses a significant threat to these rights.

Justice Lerhman highlighted in oral arguments that the state’s position suggests they could have blocked a parent from getting a COVID-19 vaccine recommended by their doctor. In fact, there is no rational limit to what the state could restrict under this theory.

Here, the state contends that it can block parents from obtaining medical treatment for their child if they are trying to obtain treatment that is “not on the menu.” News is currently breaking in Montana of parents whose child was removed by the state because the parents wished to pursue alternative care to treat their child’s gender dysphoria rather than the “gender-affirming care” that was on the state’s menu.

While the State of Texas aims to win this particular case, the Family Freedom Project is focused on protecting the constitutional rights of current and future parents and children in Texas.

We believe that preserving constitutional principles is possible without compromising the protection of parental rights and children.

In yesterday’s oral arguments, the state essentially argued that they have the power to design a pre-curated list of options from which a parent is then restricted to choose. This is the scope of “parental rights” in the state’s argument.  The problem is that the state has obscured the origins and structure of the rights in question.

Parental rights are delegated by God alongside the high duty of parents to nurture and protect their child’s wellbeing. They are not designed by the state and then served up on a pre-curated menu.

Following the oral arguments, the Family Freedom Project filed a post-submission brief on behalf of defending parents and children in Texas. In this brief, we ask that the court reaffirm its commitment to the longstanding state and federal jurisprudence protecting the fundamental rights of parents.

Our original Amicus Curiae Brief argues that SB 14 is constitutionally valid and enforceable. However, we assert that the legislation, because it restricts a parent’s fundamental constitutional right to make medical decisions for their child, must endure the highest level of judicial review, known as the “strict scrutiny” test.

This judicial evaluation scrutinizes whether the state’s interference in a fundamental right is permissible. The interference is only allowed if the state can prove a compelling state interest (such as protecting children) and if it can prove that its intervention is carefully crafted not to burden parental rights any more than is necessary.

In this case, we argue, the law does survive because the state has a compelling interest to protect children and the law has been carefully crafted to interfere only as much as is necessary to accomplish this goal. (Read more about the strict scrutiny test in this article.)

Why is the Attorney General’s office making this argument?

The AG’s office is tasked with the defense of Texas laws. In this case, the easiest way to defend a law banning gender transition surgery on minors is to argue that parents just don’t have that many rights to begin with. Such an argument is actually an extreme outlier when compared with the AG’s typical robust defense of parental rights.

The Attorney General’s office issued a lengthy opinion in 2019 defending the constitutional rights of Texas parents. The AG’s office was also a central figure in the landmark case of In re CJC from 2020, a case which set a strong and clear precedent in favor of parental rights. Here, it appears that, in the State’s vigor to defend Texas children from life-altering, experimental, irreversible gender transition procedures, it has gone too far in risking the rights of Texas parents.

What’s Next?

The outcome of this case holds significant implications for parental rights in Texas. While there is no deadline on when the court must issue an opinion, it is likely that it will do so before the court’s term ends in June.

As the SCOTX deliberates, the Family Freedom Project continues to actively intervene in this case, aiming to guide the court towards a legal path that upholds the law without compromising parental rights.  Our organization works diligently in cases related to child welfare and parental rights, striving to establish clear jurisprudence for equal access to justice for all Texas families, regardless of their background or socioeconomic status. The mission remains to preserve constitutional principles while ensuring the protection of parental rights and children.