Texas Supreme Court Upholds Ban on Child Transgender Procedures

The Texas state flag is flown during an event in San Antonio on March 30, 2023. Mike Mulholland/Getty Images

A Texas law that bans doctors from performing sex change surgeries for children does not violate the Texas Constitution, the state’s Supreme Court ruled on June 28.

“The legislature made a permissible, rational policy choice to limit the types of available medical procedures for children, particularly in light of the relative nascency of both gender dysphoria and its various modes of treatment and the legislature’s express constitutional authority to regulate the practice of medicine. We therefore conclude the statute does not unconstitutionally deprive parents of their rights or physicians or health,” Texas Supreme Court Justice Rebeca Huddle wrote for the majority.

The law in question prohibits a range of procedures and drugs for children who believe they are or might be a different gender, including castration and hormones. It took effect in September 2023.

Texas District Judge Maria Cantú Hexsel previously ruled that parents and children who sued over the law were likely to prevail in their challenge. The law likely violates the Texas Constitution “by infringing upon the fundamental right of parents to make decision concerning the case, custody, and control of their children,” she wrote in her ruling.

The Texas Supreme Court later issued an order rejecting an attempt to block the law from going into effect as it considered the case.

In the new ruling, the majority said that it was not weighing in on appropriate treatments for children with gender dysphoria.

“The question we are called upon to answer is a distinctly legal one: whether plaintiffs in this case have established a probable right to relief on their claims that the legislature’s prohibition of certain treatments for children suffering from gender dysphoria violates the Texas Constitution,” Justice Huddle said.

While parents have a fundamental interest in taking care of and controlling their children free from government interference, “this interest is not absolute,” according to the ruling.

“When developments in our society raise new and previously unconsidered questions about the appropriate line between parental autonomy on the one hand and the legislature’s authority to regulate the practice of medicine on the other, our Constitution does not render the legislature powerless to provide answers,” the ruling reads.

The Texas Constitution states that “no citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

Plaintiffs in the case have not identified one of the interests that is protected by the Constitution, according to the majority. Justice Huddle also said that legislators can regulate medical treatments for both adults and children and that the plaintiffs are seeking “relatively new medical procedures and treatments for a relatively newly defined medical condition.”

In a dissent, Justice Debra Lehrmann said that the ruling “effectively forecloses all medical treatment options that are currently available” to children with gender dysphoria “under the guise that depriving parents of access to these treatments is no different than prohibiting parents from allowing their children to get tattoos.” She said she found the law to be unconstitutional.

Texas Attorney General Ken Paxton celebrated the ruling, saying in a statement that the court upheld a law “protecting children from dangerous gender confusion procedures by prohibiting puberty blockers, cross-sex hormones, and mutilative surgeries on minors.”

“We will always defend children in Texas from these irreversible procedures,” he said.

Karen Loewy, senior counsel and director of constitutional law practice for Lambda Legal, which helped bring the case, said in a statement that the ruling would have a “devastating impact” on children who identify as transgender and their families in Texas.

“Instead of leaving medical decisions concerning minor children where they belong, with their parents and their doctors, the court here has elected to let politicians—in blatant disregard for the overwhelming medical consensus—determine the allowed course of treatment, threatening the health and the very lives of Texas transgender youth,” she said.