Texas Defends Gender-Affirming Care Ban in State’s Top Court

Texas’ gender-affirming care ban for minors comports with state constitutional guarantees, is consistent with case law, and is justified by “the evidence of harm that these treatments can cause vulnerable children,” the state’s attorneys said in a brief to the Texas Supreme Court.

Texas is asking the court to invalidate a lower court order that barred enforcement of the provision pending the outcome of a state constitutional challenge filed by transgender minors, their parents, and physicians. The law in question bans minors from accessing, and doctors from prescribing, puberty-blocking drugs and hormone therapy to treat gender dysphoria, even when parents have sought out or consented to the care.

Texas is one of about 22 states that prohibit gender-affirming care for minors. Most of those states are defending the laws against challenges brought under the US Constitution’s 14th Amendment due process and equal protection clauses. This is one of very few lawsuits to argue that the provisions also violate state constitutions, which sometimes provide more protection than the federal document.

Travis County District Court Judge Maria Cantú Hexsel’s order rested on several legal errors, the state said. For example, she incorrectly said that the provision violates Section 14 of the Texas Constitution by limiting what medical treatments may be performed on minors, it said.

Texas’ due-course-of-law provisions don’t “protect a form of medical care that was unfathomable to most when they were ratified as part of the Texas Constitution of 1876,” the state said. Moreover, while parents have state and federal rights to make decisions regarding the care, custody, and control of their children, those rights don’t permit parents to insist on medical treatments forbidden by regulations that apply to the medical profession, it said. Physicians don’t have a protected right to offer the care, it also said.

Texas’ ban doesn’t discriminate on the basis of sex, and transgender people don’t constitute a protected class under the Texas Constitution, the state said.

There are questions concerning the plaintiffs’ standing, and the lower court’s injunction was overbroad, Texas also said in the Oct. 16 brief.

The plaintiffs took issue specifically with how state lawmakers balanced the need to prevent harm to minors who might someday regret undergoing these irreversible medical treatments against the asserted benefits provided by the treatments, Texas said. “These are precisely the kinds of legislative judgments that the law-making process is designed to settle, it said.”

The gender-affirming care ban has been in effect in Texas since Sept. 1 because an automatic stay of the lower’s court’s injunction kicked in as soon as the Texas Attorney General’s Office appealed the decision. The state supreme court denied the plaintiffs’ request for emergency relief Aug. 31.

The Texas Attorney General’s Office represents the state defendants. The American Civil Liberties Union Foundation, the ACLU Foundation of Texas Inc., Lambda Legal Defense & Education Fund Inc., Transgender Law Center, Scott Douglass & McConnico LLP, and Arnold & Porter Kaye Scholer LLP represent the Texas plaintiffs.

The case is Texas v. Loe, Tex., No. 23-0697, opening brief filed 10/16/23.