“Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.”
How later courts described this case
- “Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.”
- “Simply because the decision of a parent . . . involves risks does not automatically 29 transfer the power to make that decision from the parents to some agency or officer of the state.”
- applying strict scrutiny to a state program that involved the ongoing storage of infants’ blood samples collected without parental consent because it violated their fundamental rights to direct the medical care of their children
- applying strict scrutiny to the denial of fundamental liberty interests
Written by the judges who cited it.
The opinion
Supreme Court of Texas
══════════
No. 23-0697
══════════
State of Texas; Office of the Attorney General of the
State of Texas; Texas Medical Board; Texas Health and Human
Services Commission; and Ken Paxton, in his official capacity as
Attorney General of the State of Texas,
Appellants,
v.
Lazaro Loe, individually and as next friend of Luna Loe, a minor;
Mary Moe and Matthew Moe, individually and as next friends of
Maeve Moe, a minor; Nora Noe, individually and as next friend of
Nathan Noe, a minor; Sarah Soe and Steven Soe, individually
and as next friends of Samantha Soe, a minor; Gina Goe,
individually and as next friend of Grayson Goe, a minor;
PFLAG, Inc.; Richard Ogden Roberts III, M.D.; David L. Paul,
M.D.; Patrick W. O’Malley, M.D.; and American Association of
Physicians for Human Rights, Inc. d/b/a GLMA: Health
Professionals Advancing LGBTQ Equality,
Appellees
═══════════════════════════════════════
On Direct Appeal from the
201st District Court, Travis County, Texas
═══════════════════════════════════════
JUSTICE LEHRMANN, dissenting.
At its core, this case presents a foundational issue: whether the
State can usurp parental authority to follow a physician’s advice
regarding their own children’s medical needs. The parents at issue are
thoughtful, conscientious caretakers who are doing the best they can to
deal with serious health conditions with which their children have been
diagnosed. They certainly are not mistreating their children. To the
contrary, they are facing this challenge with extraordinary courage,
fortitude, and perseverance. The State’s categorical statutory
prohibition prevents these parents, and many others, from developing
individualized treatment plans for their children in consultation with
their physicians, even the children for whom treatment could be
lifesaving. The law is not only cruel—it is unconstitutional.
The Court claims that its decision today does not deprive children
diagnosed with gender dysphoria of appropriate treatment; it is simply
answering the legal question before it. Yet, answering the question does
just what the Court denies—it effectively forecloses all medical
treatment options that are currently available to these children. And it
does so under the guise that depriving parents of access to these
treatments is no different than prohibiting parents from allowing their
children to get tattoos. Of course, there is nothing remotely medically
necessary about tattooing. Confusingly, the Court relies on cases
unrelated to medical care to support its holding that the Legislature’s
authority to regulate the practice of medicine preempts the fundamental
rights of parents. And though it admits that parental autonomy is a
fundamental liberty interest encompassing the right to make medical
2
decisions for one’s children, the Court nevertheless refuses to apply the
constitutional scrutiny mandated for fundamental liberty interests.
While I agree that the Legislature has the general authority to
regulate the practice of medicine, that authority is necessarily limited
by the promises and protections of our Constitution; in fact, limiting the
State’s intrusion into private action is the very reason for the Bill of
Rights. Thus, even when the Legislature exercises its delegated powers,
it does so subject to the constitutional rights of citizens—not the other
way around. If the Legislature’s enactments infringe upon a
fundamental liberty interest, those enactments must be subjected to the
appropriate constitutional scrutiny.
Although this Court has enshrined a robust conceptualization of
parental autonomy for many years, in the blink of an eye, the Court
tosses that precedent aside today. Contrary to the Court’s holding, the
Due Course Clause protects parents’ rights to make medical decisions
for their children and, because S.B. 14 directly infringes upon that
decision-making authority, it must withstand strict scrutiny. Such
fundamental rights are not, as the Court erroneously concludes, subject
to piecemeal dissection into subcategories that are treated differently
for the purpose of constitutional review. Even if they were, this
particular parental right—to make potentially life-saving medical
decisions for one’s children—certainly does not fall within the same
category as tattooing, tobacco use, or even child labor. 1 Moreover, the
1 If we are applying labels, in my view the appropriate label would be
“potentially life-saving” treatment rather than “novel” treatment. The lack of
3
novelty of gender-affirming care makes it no less medically therapeutic
when indicated than other cutting-edge medical interventions. Serious
medical conditions often call for innovative and novel treatment plans
that present risks—but not without good reason. When life is at stake,
risky treatment may be the only real option.
The Court’s one-sided concerns about potentially permanent
effects associated with the prohibited treatments are particularly
disconcerting given that the consequences of categorically denying
children medical treatment for their gender dysphoria can be equally
irreversible. Conservative estimates place suicidal ideation among
transgender individuals at around 50%. 2 Further, a study of over 6,000
transgender individuals in the U.S. indicates that minors are among
those who have the highest risk of suicide. 3 That gender dysphoria was
not a diagnosis recognized by the American Psychiatric Association until
1980 does not mean that the condition did not previously exist. The idea
that it is “inconceivable” that anyone ever questioned his or her gender
identity until recently, as one of the concurrences argues, 4 is both naïve
certainty about how unenumerated rights would be categorized leads me to
agree with JUSTICE YOUNG that this type of reasoning is “opaque,” at best.
Ante at 10 (Young, J., concurring).
2 Sam Levin, More than 50% of Trans and Non-Binary Youth in US
Considered Suicide this Year, Survey Says, THE GUARDIAN (Dec. 17, 2022),
https://www.theguardian.com/us-news/2022/dec/16/us-trans-non-binary-
youth-suicide-mental-health?CMP=share_btn_url.
3 See generally Josephine Mak, et al., Suicide Attempts Among a Cohort
of Transgender and Gender Diverse People, 59 AM. J. OF PREVENTIVE MED. 570
(2020).
4 Ante at 9, 11 (Blacklock, J., concurring).
4
and callous. 5 And regardless of when individuals became comfortable
expressing these realities publicly, the condition is certainly no
“fantasy” 6 for many very real children and their very real parents.
Moreover, whether one’s gender identity is a product of biology or
influenced by modern-day environmental factors, or both, is beside the
point. Regardless of the cause, real people express real concerns
regarding gender dysphoria in today’s world. The medical
establishment has recognized this reality, and so should the judiciary.
To survive strict scrutiny, the law must be narrowly tailored to
serve a compelling state interest. The State of course has a compelling
interest in protecting children from harm as a general matter—though,
notably, the interest is undercut when the alleged harm is medical
treatment that has been approved by the vast majority of the medical
community. In any event, one thing is crystal clear: S.B. 14 is far from
narrowly tailored. It does not even provide for an exception to the ban
when the prohibited treatment is needed to save the life of the child or
5 See, e.g., Jennifer L. Levi & Kevin M. Barry, Transgender Tropes &
Constitutional Review, 37 YALE L. & POL’Y REV. 589, 595 (2019) (“Although
moral animus toward transgender people has existed in some quarters for
quite some time, history teaches that respect for transgender people is a
tradition far more deeply rooted, with ‘individuals whom today we might call
transgender[] . . . play[ing] prominent roles in many societies, including our
own[,] . . . [f]rom prehistoric times to the present.’” (alteration in original)
(citation omitted)); ROBERT BEACHY, GAY BERLIN: BIRTHPLACE OF A MODERN
IDENTITY (Alfred A. Knopf, 2014) (discussing the significant transgender
community in Weimar Republic-era Berlin); EMILY SKIDMORE, TRUE SEX: THE
LIVES OF TRANS MEN AT THE TURN OF THE TWENTIETH CENTURY (NYU Press,
2017) (providing a historical inquiry into the existence and prevalence of
transgender identity from the late 1800s through the early 1900s).
6 Ante at 8 (Blacklock, J., concurring).
5
to prevent substantial injury to the child. Surely the right of parents to
make medical decisions, in consultation with their physicians, regarding
the welfare of their children is worthy of more constitutional protection
than the Court recognizes today. Concerningly, the Court’s opinion puts
all parental decisions at risk of being overruled by the government. The
Court’s attempt to cabin its opinion to only this case makes its outcome-
driven decision-making all the more transparent. Because the Court
refuses to properly recognize this core right, I am compelled to
respectfully express my dissent.
I. Background
A. S.B. 14 Is a Hatchet, Not a Scalpel.
In passing S.B. 14, the Legislature articulated concerns regarding
medical treatments aimed at addressing diagnoses of gender dysphoria
in children—concerns that I take very seriously. Indeed, the leading
medical associations in this field do not recommend surgical
intervention before adulthood. Without a doubt, the removal of a young
child’s genitalia is something that neither the conventional medical
community nor conscientious parents would condone. Moreover,
medical experts do not recommend that any medical intervention,
including the prescription of puberty blockers and hormones, be
undertaken before the onset of puberty. Legislation that would
narrowly prohibit such widely disfavored treatment is something that I
believe could survive constitutional challenge. But that is not what
S.B. 14 does. It does not simply take measures off the table that medical
science has shown are, on balance, so risky and permanent that they
should not be utilized. Rather, it prohibits all medical intervention for
6
gender dysphoria, across the board, no matter the age or emotional
condition of the child.
The duty of a governing body to protect children’s health and
wellness does not supplant the duty of a fit parent to fulfill this
responsibility. 7 In the first instance, parents have the responsibility to
ensure that their children are safe and cared for. Parents have both a
right and a duty to provide their children with sound, medically
informed treatment. See TEX. FAM. CODE § 151.001(a)(3) (enumerating
a parent’s duty to “provid[e] the child with clothing, food, shelter,
medical and dental care, and education”). However, S.B. 14 effectively
bars parents from fulfilling that duty when, in consultation with their
physicians, they decide that gender-affirming care is the best, perhaps
even lifesaving, treatment to address their child’s needs.
Indeed, S.B. 14 is a broad-sweeping law that prohibits doctors
from treating patients according to their individual needs. It does not
distinguish between appropriate and inappropriate medical
intervention. Because of S.B. 14, doctors are bound to treat the medical
needs of a nine-year-old expressing confused feelings about gender
7 As JUSTICE YOUNG’S concurrence recognizes, parents have the
autonomy “to conduct their affairs without needing permission from the
majoritarian political process.” Ante at 3 (Young, J., concurring). This is
particularly true here, where the decisions of these parents are aimed solely at
their own children—they are in no way directed at, and have no bearing on,
other families. Notwithstanding any implication to the contrary, no one is
remotely suggesting that the government should be able to force parents to
consent to transgender therapy against their will. See ante at 9 n.10
(Blacklock, J., concurring). Rather, the reverse is true—a legislative majority
is forcing their views on these families. And in the process, they are blocking
the ability of these parents to use their best judgment to protect their children.
7
identity as identical to those of a seventeen-year-old struggling with
suicidal ideation resulting from untreated gender dysphoria. Where it
ought to have utilized the proverbial scalpel, the Legislature instead
employed a hatchet, forgoing measured policy predicated on a
well-documented medical consensus in favor of a crude and politically
expedient categorical prohibition. In so doing, the Legislature
supersedes the autonomy of parents whose children have been
diagnosed with gender dysphoria under its authority to regulate
medicine—no longer can parents rely on their physicians to help them
develop sound, medical treatment plans to address their children’s
specific needs.
Concerningly, the Court acquiesces today. Despite the Court’s
so-called recognition of fundamental parental rights, it fails to articulate
precisely why or how it distinguishes between the parental decisions
that are constitutionally protected and those that are not. The Court’s
“parental rights for me but not for thee” approach has no objective
criteria and renders parents entirely without guidance on whether their
parental liberty will be meaningfully protected. The Court’s opinion
thus puts all parental rights in jeopardy.
B. The Experiences of Each Plaintiff Are Essential to this
Case.
While all the minor plaintiffs have been diagnosed with gender
dysphoria, they are different ages, they are in different stages of their
pubertal development, and their medical treatments at the time they
filed suit ranged from psychotherapy alone to hormonal therapy. The
varying circumstances and challenges faced by each plaintiff, glossed
8
over by the Court, directly undercut the State’s purported justifications
for a mandate that their medical needs be treated identically.
Plaintiffs Sarah and Steven Soe are the parents of fifteen-year-old
Samantha Soe. When Samantha was thirteen, Sarah and Steven took
Samantha to a pediatric endocrinologist who diagnosed gender
dysphoria. After their doctor informed them of the risks and benefits of
available treatment, Sarah and Steven decided to do additional
research. They read medical literature and spoke with several other
doctors. Eventually, after receiving multiple opinions offering similar
advice, Sarah and Steven determined to proceed with puberty blockers.
With medication, Samantha’s mental health improved significantly.
Being forced to stop this medication after the enactment of S.B. 14 has
left these parents with unsatisfactory options: to move out of Texas
permanently, to live apart from their child until Samantha turns
eighteen, or to default on their obligation to provide Samantha with
treatment that has improved her well-being.
Plaintiff Nora Noe is the mother of sixteen-year-old Nathan Noe.
Before starting the medical care recommended by his physician, Nathan
suffered from severe anxiety and had symptoms of
obsessive–compulsive disorder. Though Nathan was a happy child,
Nora noticed a dramatic shift around the age of eleven. Nathan became
withdrawn and suffered in school to the point that Nora decided to
homeschool. The onset of puberty was so distressing that Nathan
became withdrawn and depressed. A few months later, Nathan was
diagnosed with gender dysphoria and began seeing a therapist
specializing in that condition. Nathan began taking testosterone in
9
November 2021. Even though Nathan’s condition improved with this
treatment, the news of S.B. 14 led to a cancellation of the treatment and
has presented Nora and her husband with a difficult decision: whether
to leave Texas entirely or to fail to continue to provide Nathan with
medical treatment that has demonstrably helped him.
Plaintiff Gina Goe is the mother of fifteen-year-old Grayson Goe.
Grayson experienced severe emotional distress for many years, leading
to several incidents of self-harm that required emergency medical care.
In 2020, Gina took Grayson to see an adolescent-medicine doctor who
ultimately diagnosed him with gender dysphoria. At the age of fifteen,
Grayson was evaluated for hormone therapy and, after the family’s
comprehensive review of the possible side effects and extensive
discussions with their doctor, Gina determined it was in Grayson’s best
interest to begin the recommended treatment plan. Since the start of
treatment, Gina has noticed a significant, positive change in Grayson’s
demeanor and mental health. Unfortunately, this treatment is no
longer available to this family because of S.B. 14.
Plaintiff Lazaro Loe is the father of twelve-year-old Luna Loe.
Luna expressed a female gender identity to Lazaro at a very early age.
Luna has seen a child psychologist since the age of six and has been
diagnosed with gender dysphoria. When Luna began to experience
puberty, the psychologist recommended seeing an endocrinologist, who
determined puberty blockers were a medically appropriate treatment.
After consultation with the doctor about benefits and side effects, the
Loes determined collectively that treatment was the proper decision.
The Loes state that these medications have had a positive impact on
10
Luna’s life. They allege that S.B. 14’s prohibition of the medication
Luna has been receiving for over a year will eliminate the treatment
that has allowed Luna to thrive and may require the family to leave the
only state Luna has ever called home.
Plaintiffs Matthew and Mary Moe are the parents of
nine-year-old Maeve Moe. Maeve expressed an understanding of a
female gender identity very early. When Maeve was six, the Moes saw
a doctor who diagnosed Maeve with gender dysphoria and recommended
follow-up visits every year before puberty. At the time suit was filed,
the Moes’ doctor had informed them that Maeve may begin puberty
within the next several months. Following extensive discussions with
their doctors, and amongst themselves, Matthew and Mary have decided
that when puberty starts, puberty blockers may be necessary for Maeve
to remain a healthy child. However, the threat of Maeve’s recommended
medical treatment being prohibited by S.B. 14, which is now a reality,
led Mary to temporarily move her children out of state.
C. S.B. 14 Contradicts Accepted Medical Community
Standards.
The requirements of S.B. 14 directly contradict well-established
industry standards of practice. Gender dysphoria is understood to refer
to the distress caused by the incongruence between one’s experienced or
expressed gender and one’s assigned biological sex. AM. PSYCHIATRIC
ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th
11
ed. 2022). 8 This diagnosis has been the subject of much research, and
the results of that research have provided organizations like the
American Medical Association and the American Pediatric Association
with a clinical basis to issue guidance to doctors.
Clinical studies indicate that gender-affirming care, provided to
carefully evaluated patients who meet diagnostic criteria, can alleviate
clinically significant distress and lead to significant improvements in
mental health. 9 The American Medical Association has endorsed
guidelines established by the World Professional Association for
Transgender Health (the WPATH Guidelines) for the treatment of
gender dysphoria. 10 The drafting committee that prepared these
8 The DSM is the “universal diagnostic system used in diagnosing
mental health disorders in the United States and much of the rest of the
world.” Tex. St. Bd. of Exam’rs of Marriage & Fam. Therapists v. Tex. Med.
Ass’n, 511 S.W.3d 28, 31 (Tex. 2017).
9 See generally Simona Martin et al., Criminalization of Gender-
Affirming Care—Interfering with Essential Treatment for Transgender
Children and Adolescents, 385 NEW ENG. J. MED. 579 (2021) (providing an
overview of the scientific basis underlying gender-affirming care and its
demonstrated effectiveness in “alleviating gender dysphoria”).
10 The WPATH Guidelines for the treatment of gender dysphoria in
adolescents are summarized as follows:
1. A robust diagnostic assessment is made by a provider who is
licensed by their statutory body and holds masters or equivalent in
a relevant clinical field, has experience and received theoretical and
evidence-based training in child, teen, and family mental health,
and has expertise and training in several other relevant disorders
and neurodevelopmental areas.
a. Before developing a treatment plan, the provider should conduct
a “comprehensive biopsychosocial assessment” of the patient.
12
guidelines included experts in the fields of endocrinology, pediatrics, and
psychiatry. The deliberative process, which involved five years of
2. The guidelines recommend only non-medical intervention for
prepubertal children.
a. The guidelines provide for mental health care for the patient and
family, but no medical interventions.
3. Under certain circumstances, the guidelines allow medical
intervention for adolescents with gender dysphoria.
a. Before medical intervention may be prescribed, there are several
conditions that a qualified provider must determine are met:
i. The adolescent patient meets the diagnostic criteria of
gender incongruence according to the WHO’s International
Classification of Diseases or other taxonomy.
ii. The adolescent has demonstrated a sustained and marked
pattern of gender nonconformity or gender dysphoria.
iii. The adolescent has demonstrated the emotional and
cognitive maturity required to provide informed consent for
treatment.
iv. Any coexisting psychological, medical, or social problems
that could interfere with diagnosis, treatment, or the
adolescent’s ability to consent have been addressed.
v. The adolescent has been informed of the reproductive effects
of treatment in the context of their stage in pubertal
development and discussed fertility preservation options.
vi. The adolescent has reached Tanner Stage 2 of puberty.
E. Coleman et al., Standards of Care for the Health of Transgender and Gender
Diverse People, Version 8, 23 INT. J. TRANSGENDER HEALTH S48 tbl.12 (2022).
The Endocrine Society endorses similar criteria, with the additional
requirements that a pediatric endocrinologist agree with the indication for
treatment, confirm that the patient has started puberty, and confirm that
there are no medical contraindications. Wylie C. Hembree et al., Endocrine
Treatment of Gender-Dysphoric/Gender-Incongruent Persons, 102 J. CLINICAL
ENDOCRINOLOGY & METABOLISM 3869, 3878 tbl.5 (2017),
https://academic.oup.com/jcem/article/102/11/3869/4157558.
13
thoughtful study, comment, and debate and over 119 authors, was
robust and thorough. 11
As amici point out, the guidelines are structured to address the
same concerns articulated by the State—concerns that I share. WPATH
undertook a nineteen-step, five-year drafting, comment, and review
process, the same approach taken by the American Medical Association
in other areas of clinical research and recommendation. This process
resulted in a treatment model (summarized in note 10, supra) that is
comprehensive and conservative in its approach. It does not recommend
that any medical intervention, including prescription of puberty
blockers, be undertaken until the detailed criteria have been satisfied.
The widely accepted view in the professional medical community,
including that of the American Pediatric Association, is that
gender-affirming care is the appropriate treatment for gender dysphoria
in some cases. 12 Empirical data shows that this care greatly reduces the
negative physical and mental health consequences that result when
gender dysphoria is untreated. 13 In line with this data, the American
Psychological Association has also issued guidelines for the treatment of
gender dysphoria that recommend gender-affirming care be provided
11 Coleman, supra note 10, at S247–51.
12 See Jason Rafferty, Ensuring Comprehensive Care and Support for
Transgender and Gender-Diverse Children and Adolescents, AM. ACAD. OF
PEDIATRICS 5–18 (2018); Br. of Am. Acad. of Pediatrics et al. as Amici Curiae
Supporting Plaintiffs, at 8–22.
13 Christal Achille et al., Longitudinal impact of gender-affirming
endocrine intervention on the mental health and well-being of transgender
youths: preliminary results, 8 INT’L J. PEDIATRIC ENDOCRINOLOGY 1–5 (2020),
https://pubmed.ncbi.nlm.nih.gov/32368216.
14
when medically indicated. 14 The official treatment recommendations of
the American Academy of Pediatrics also align with this research. 15
The guidelines for treatment of adolescents with gender
dysphoria were the product of the same drafting, comment, and review
process that amici organizations use for other clinical practice guides. 16
The Endocrine Society followed the Grading of Recommendations
Assessment, Development, and Evaluation (GRADE) system, which
imposes internationally recognized evidentiary requirements. 17 The
assessment was then reviewed, re-reviewed, and reviewed again by
multiple, independent groups of professionals. 18 Tellingly, the State’s
own expert witness acknowledged the overwhelming majority view of
the medical community, describing his contrary position as “essentially
me versus the entire medical establishment.” 19
14 Am. Psychological Ass’n, Guidelines for Psychological Practice With
Transgender and Gender Nonconforming People, 70(9) AMERICAN
PSYCHOLOGIST 832, 862 (2015).
15 Rafferty, supra note 12, at 5.
16 See Wylie C. Hembree et al., Endocrine Treatment of
Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical
Practice Guide, 102(11) J. CLINICAL ENDOCRINOLOGY & METABOLISM 3872–73
(Nov. 2017) (providing a high-level overview of its methodology).
See Gordon Guyatt et al., GRADE guidelines: 1. Introduction—
17
GRADE evidence profiles and summary of findings tables, 64 J. CLINICAL
EPIDEMIOLOGY 383 (2011).
18 For more information on the methodological rigor of the guidelines,
see Amicus Br. of Am. Acad. of Pediatrics et al., at 16.
19 The Court brushes off Dr. Cantor’s plain words: “[I]t was essentially
me versus the entire medical establishment . . . .” More concerningly, one of
15
II. Discussion
Today the Court boldly pronounces that S.B. 14 is not subject to
strict scrutiny; it is thus constitutional if any articulated rational basis
can justify it. Ante at 25–26. The Court relies on the fact that the State
has the power to regulate the practice of medicine and holds that such
regulations do not implicate parental autonomy because the right
extends “only to those medical treatments that are legally available.”
Id. at 17. The legal analysis is circular at best. Under the Court’s
rationale, the Legislature’s prohibition is subject to only a rational basis
review because the treatment is unlawful—but the treatment is
unlawful only because the Legislature has prohibited it. The
unacceptable result is that the prohibition is necessarily insulated from
meaningful constitutional scrutiny.
Recognizing the far-reaching implications of this illogical
assessment, the Court clumsily attempts to cabin it. Unfortunately, it
does so with a remarkable opacity. Specifically, the Court holds that
“[S.B. 14] merely restricts the availability of new treatments with which
medical providers may treat children diagnosed with a newly defined
medical condition, gender dysphoria.” Id. at 25. But it provides
absolutely no guidance for Texans on what the Constitution does or does
not allow, noting only that the novelty of the regulated conduct is a
factor to consider when determining the level of constitutional scrutiny
that applies. The Court fails to acknowledge the unfortunate reality
the concurrences seems to dismiss the entire “medical establishment,”
including the American Medical Association, as being composed of elitist
bureaucrats unconcerned with upholding their Hippocratic Oath. See ante at
5–6 (Blacklock, J., concurring). I respectfully disagree.
16
that relatively new medical procedures and treatments are often the
only options available to loving parents who are desperately seeking to
help their children.
Based on the Court’s amorphous reasoning, neither the State nor
Texans are given clarity beyond a vague sense that there may be some
restrictions that would be protected by strict scrutiny. The Court’s
opinion may allow the Legislature to prohibit children from receiving
vaccines, or it may not. The Court’s opinion may allow the Legislature
to ban homeschooling, or it may not. The Court’s objection to a
consistent and predictable standard of scrutiny that is applied
regardless of whether it agrees with the parental decision at issue is
concerning. Surely, whether a parent’s decision will be constitutionally
protected does not depend on whether the Court agrees with that
decision on personal or policy grounds. Such a conception of
constitutional rights does a tremendous disservice to our Constitution.
A. Parents Have a Fundamental Right to Make Decisions
Concerning the Care, Custody, and Control of Their
Children.
Parental rights and liberties have long been understood as
fundamental and, though not enumerated, constitutionally protected.
The Court today does not refute the maxim that our Due Course Clause
protects unenumerated substantive rights, nor could it. See Patel v. Tex.
Dep’t of Licensing & Regul., 469 S.W.3d 69, 87 (Tex. 2015) (“Given the
temporal legal context, Section 19’s substantive due course provisions
undoubtedly were intended to bear at least some burden for protecting
individual rights that the United States Supreme Court determined
were not protected by the federal Constitution. That burden has been
17
recognized in various decisions of Texas courts for over one hundred and
twenty-five years.”).
This Court has been steadfast in its recognition that the
Constitution “protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their children.” In
re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (citing Troxel v. Granville,
530 U.S. 57, 66 (2000)). In Troxel, even the U.S. Supreme Court justices
who would not root this right in substantive-due-process jurisprudence
nevertheless recognized a fundamental right of parents to direct the
upbringing of their children. Id. at 812 (citing Troxel, 530 U.S. at 80
(Thomas, J., concurring); id. at 91 (Scalia, J., dissenting) (noting that
the right “is among the ‘unalienable Rights’ with which the Declaration
of Independence proclaims ‘all men . . . are endowed by their Creator’”
and “among the ‘othe[r] [rights] retained by the people’ which the Ninth
Amendment says the Constitution’s enumeration of rights ‘shall not be
construed to deny or disparage’”); id. at 95 (Kennedy, J., dissenting) (“As
our case law has developed, the custodial parent has a constitutional
right to determine, without undue interference by the state, how best to
raise, nurture, and educate the child.”)). 20
The Court today defines the contours of constitutional protection
for fundamental parental rights to essentially encompass only those
state actions that seek to irrevocably sever the parent–child relationship
20 I agree with JUSTICE YOUNG’S observation that sometimes an
unenumerated right “is so fundamental to our legal tradition and culture that
reducing it to writing may never even have occurred to the drafters” and that
“[p]arental authority” is “part of the background assumptions of the law.” Ante
at 5 (Young, J., concurring).
18
or that entirely prevent parents from making decisions at all. See ante
at 19 (“Certainly, then, when the State seeks to sever the parent–child
relationship, those proceedings must be ‘strictly scrutinized.’”); see also
id. at 25 (“[S.B. 14] merely restricts the availability of new treatments
with which medical providers may treat children diagnosed with a newly
defined medical condition, gender dysphoria.”). However, this Court has
never viewed the scope of parental liberty so narrowly. To the contrary,
the Court has consistently recognized the presumption that it is for the
parents, and not the State, to guide the raising and caretaking of their
child. Byrne v. Love, 14 Tex. 81, 91 (1855) (“There is no doubt that a
guardian, and especially a father acting as guardian by nature, has very
ample authority in the control, management, rearing, and education of
his children . . . .”); Legate v. Legate, 28 S.W. 281, 282 (Tex. 1894) (“[The
State] recognizes the fact that the interest of the child and of society is
best promoted by leaving its education and maintenance during
minority to the promptings of paternal affection, untrammeled by the
surveillance of government . . . .”).
The U.S. Supreme Court also recognizes a broadly construed
“fundamental right of parents to make decisions concerning the care,
custody, and control of their children.” Troxel, 530 U.S. at 66. Not only
has that Court taken such an approach for over a century, but this Court
has consistently adopted and followed its guidance. 21
21 This Court has repeatedly modeled its analysis on the U.S. Supreme
Court’s articulation of parental rights. See, e.g., C.J.C., 603 S.W.3d at 811–12;
Miller v. HCA, Inc., 118 S.W.3d 758, 766 (Tex. 2003) (citing Parham v. J.R.,
442 U.S. 584, 602 (1979)); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
19
In Pierce v. Society of Sisters, the Supreme Court was asked to
consider the constitutionality of a state law that prohibited children of
certain ages from attending private or parochial schools. 268 U.S. 510,
532 (1925). The law’s challengers suggested that the requirement that
children attend public school “conflicts with the rights of parents to
choose schools where their children will receive appropriate mental and
religious training.” Id. Though it was undisputed that the State had
the power to reasonably regulate all schools and to require that “all
children attend some school” and be taught “certain studies plainly
essential to good citizenship,” id. at 534, the Supreme Court struck the
law down. The Court held that it was “entirely plain that the [statute]
unreasonably interfere[d] with the liberty of parents and guardians to
direct the upbringing and education of children under their control.” Id.
at 534–35. The Court went on to explain: “The child is not the mere
creature of the state; those who nurture him and direct his destiny have
the right, coupled with the high duty, to recognize and prepare him for
additional obligations.” Id. at 535. Despite the states’ constitutional
authority to regulate education, and the fact that the challenged law
merely limited the type of education available, the Court recognized a
“fundamental theory of liberty” infringed by such legislative overreach.
Id.
Of course, as the Court correctly observes today, the
decision-making power of parents is not boundless. This is not
remarkable—no rights, not even enumerated ones, are absolute.
Parents have not only the autonomy, but the serious legal obligation, to
make sure that their children are cared for properly. It follows, then,
20
that the State may supersede parental action when that action subjects
their children to harm. However, in no other context has this Court
allowed the State’s interests to supersede a fundamental right subject
only to a rational-basis review. This analysis has no support in
precedent, and it renders “parental autonomy” illusory. This is
especially true here, where the parental conduct at issue is based upon
medically accepted advice from trusted physicians.
From the unexceptional premise that “parental control and
authority have never been understood as constitutionally mandated
absolutes,” the Court makes a logically unsupported leap to the
conclusion that strict scrutiny is not required. Ante at 20. To the
contrary, the Texas Constitution does not permit the State to infringe
upon the fundamental rights of parents simply because it believes a
“better decision” could be made. In re Mays–Hooper, 189 S.W.3d 777,
778 (Tex. 2006); see also In re A.M., 630 S.W.3d 25, 25 (Tex. 2019)
(Blacklock, J., concurring in denial of petition for review) (noting that
“this natural parental right [is] a basic civil right of man and far more
precious than property rights”); Parham v. J.R., 442 U.S. 584, 603 (1979)
(“Simply because the decision of a parent is not agreeable to a child or
because it involves risks does not automatically transfer the power to
make that decision from the parents to some agency or officer of the
state.”). Rather, the right is “not absolute” in the sense that “the State
may legitimately interfere with family autonomy” in limited
circumstances, such as “to protect children from genuine abuse and
neglect by parents who are unfit to discharge the ‘high duty’ of ‘broad
parental authority over minor children.’” A.M., 630 S.W.3d at 25
21
(quoting Parham, 442 U.S. at 602). That the right is not absolute in no
way logically limits the breadth of that right, which this Court has
always recognized.
B. “Care, Custody, and Control” Encompasses Medical
Decision-Making.
As certain fundamental rights and liberty interests are
undoubtedly protected by the Due Course Clause, the next question is
whether they include a parent’s right to make medical decisions for their
children’s welfare. In short, they do.
Both the U.S. Supreme Court and this Court have long recognized
that the right of parents to make decisions regarding the health and
well-being of their children is among the most fundamental of rights.
This right, encompassing the ability—and, indeed, the obligation—to
seek and receive recommended medical treatments when one’s child is
in need, has ubiquitously been considered fundamental to our notions of
ordered liberty. The right is not conditioned on whether the medical
treatment sought is new, controversial, popular, or even effective, and it
does not inherently give way to countervailing interests. While such
interests exist, such as the authority of the State to regulate the practice
of medicine, those interests do not alter the scope of the constitutional
right at issue. Again, while compelling state interests may justify
infringing on even a fundamental right, if the infringement is narrowly
tailored, they do not negate the existence or reduce the breadth of the
right, contrary to the Court’s analysis.
In Parham v. J.R., the U.S. Supreme Court reviewed a Georgia
statute’s procedure governing the controversial practice of voluntary
commitment of minors to state mental hospitals. 442 U.S. at 588. While
22
the specific issue concerned the procedural due process rights of the
child, the first step of the Court’s analysis—examining the private
interests affected by the state action—included a consideration of “the
interests of the parents who have decided, on the basis of their
observations and independent professional recommendations, that their
child needs institutional care.” Id. at 601–02. In analyzing that
interest, the Court explained that its “jurisprudence historically has
reflected Western civilization concepts of the family as a unit with broad
parental authority over minor children.” Id. at 602 (emphasis added).
“Surely,” the Court held, a parent’s right to make decisions concerning
her children “includes a ‘high duty’ to recognize symptoms of illness and
to seek and follow medical advice.” Id. Because these rights and duties
are so intertwined, parents “retain plenary authority to seek such care
for their children, subject to a physician’s independent examination and
medical judgment.” Id. at 604. 22
This Court, following suit, has acknowledged the “‘high duty’ to
recognize symptoms of illness and to seek and follow medical advice” to
22 The Court dismisses Parham for being a procedural due process case
in which the U.S. Supreme Court did not “suggest[] that it was recognizing a
substantive constitutional right for parents to obtain novel medical care for
their children.” Ante at 22. The Court fails to address Parham’s discussion of
the breadth of parental autonomy, which included medical decision-making for
one’s children. As discussed previously, the U.S. Supreme Court has
steadfastly recognized a fundamental right of parents to direct the upbringing
of their children, even though the Justices are not aligned on the source of that
right. C.J.C., 603 S.W.3d at 812 (citing Troxel, 530 U.S. at 80 (Thomas, J.,
concurring)).
23
be foundational under Texas law as well. 23 Miller v. HCA, Inc., 118
S.W.3d 758, 766 (Tex. 2003) (quoting Parham, 442 U.S. at 602); see also
T.L. v. Cook Child.’s Med. Ctr., 607 S.W.3d 9, 43 (Tex. App.—Fort Worth
2020, pet. denied) (“This right includes the right of parents to give,
withhold, and withdraw consent to medical treatment for their
children.”); In re Zook, No. 03-21-00180-CV, 2021 WL 2964264, at *2–3
(Tex. App.—Austin July 15, 2021, orig. proceeding); In re Womack, 549
S.W.3d 760, 766 (Tex. App.—Waco 2017, orig. proceeding [mand.
denied]) (“Accordingly, under the plain language of subsection 32.101(c),
[DFPS], having actual knowledge that [the parents] have expressly
refused to give consent to [their child’s] being immunized, may not
consent to [the child’s] being immunized.”). Even when parents’
decisions contradict recommended medical treatment, their right to
guide the well-being of their children, while not unchecked, is protected
by the Constitution.
Here, the Legislature has superseded parental decision-making
entirely to prevent the provision of medical treatment recommended by
a medical consensus because the Legislature happens to disagree with
that consensus. Our precedent demonstrates why that policy choice goes
too far. See Miller, 118 S.W.3d at 767 (“[A]s long as parents choose from
23 Entirely unaddressed by the Court is the duty of parents, as a matter
of both natural and statutory law, to seek out medical care for their children
when needed. See TEX. FAM. CODE § 151.001(a)(3) (enumerating a parent’s
duty to “provid[e] the child with clothing, food, shelter, medical and dental
care, and education” (emphasis added)); see also id. § 151.001(a)(6) (“A parent
of a child has . . . the right to consent to the child’s marriage, enlistment in the
armed forces of the United States, medical and dental care, and psychiatric,
psychological, and surgical treatment . . . .”).
24
professionally accepted treatment options the choice is rarely reviewed
in court and even less frequently supervened.” (citing Bowen v. Am.
Hosp. Ass’n, 476 U.S. 610, 627 n.13 (1986))). If the right to reject
recommended medical advice is protected by the Constitution, surely the
ability to follow recommended medical advice is similarly protected.
Contrary to the Court’s deference to the Legislature today,
“[d]etermination by the Legislature of what constitutes proper exercise
of [plenary] power is not final or conclusive but is subject to supervision
by the courts.” Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
C. The Court’s Ad Hoc Approach to Parental Rights Is
Unprecedented.
Importantly, fundamental rights are not to be dissected into
separate parts that are treated differently for purposes of constitutional
protection. Nonetheless, the Court’s opinion today does just that. The
right of parents to direct whether their child should receive treatment
for gender dysphoria is squarely encompassed within the broader
fundamental right of parents to make medical decisions for their
children. That right must be scrutinized accordingly.
As noted, this right of parental autonomy is among the “vital
rights . . . that courts must protect from fleeting majoritarian whim.”
Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648,
666 (Tex. 2022) (Young, J., concurring). Thus, “the State may
legitimately interfere with family autonomy” in only limited
circumstances, such as “to protect children from genuine abuse and
neglect by parents who are unfit to discharge the ‘high duty’ of ‘broad
parental authority over minor children.’” A.M., 630 S.W.3d at 25 (citing
Parham, 442 U.S. at 602). This right, as this Court has articulated it
25
throughout our history, has always been defined broadly. For example,
in cases involving grandparents seeking court-ordered visitation, which
requires overcoming a high statutory hurdle, the underlying
constitutional right giving rise to that hurdle is not a parent’s
stand-alone right to prevent his children from seeing their
grandparents, but a broader right to make decisions concerning “the
care, custody, and control of [his] children.” E.g., In re Derzapf, 219
S.W.3d 327, 334–35 (Tex. 2007) (citing Troxel, 530 U.S. at 65). The
Court’s analysis in these cases reflects an understanding that this
fundamental right is not subject to ad hoc dissection.
In attempting to carve out an exception to parental medical
decision-making rights, the Court concludes that novel concepts—or at
least, some novel concepts—are not entitled to strict scrutiny. The Court
relies on Washington v. Glucksberg, 521 U.S. 702 (1997), for the
proposition that a novel concept is not subject to strict-scrutiny review.
In Glucksberg, the new fundamental liberty interest at issue was
assisted suicide; the Court held that this was not protected by
substantive due process. Id. at 709. In analogizing gender-affirming
care to assisted suicide (because they both involve “novel concepts”), the
Court concludes that governmental prohibition of treatment for gender
dysphoria is subject to rational-basis review. Leaving aside that gender
nonconformity is not in fact a novel concept, see supra note 5, the Court
overlooks that a decision to provide gender-affirming treatment to a
minor is a subset of the recognized fundamental right of parental
decision-making, while assisted suicide is not. Today we are not asked
to “break new ground in this field” as was required in Glucksberg—the
26
right to assisted death had never been recognized as fundamental.
Rather, we are asked to acknowledge a right that has long been
recognized as fundamental, see, e.g., Parham, 442 U.S. at 603, and to
apply the analysis that has long been required. The Court dissects the
fundamental right of a parent to make medical decisions for their
children into separate parts that are entitled to differing levels of
constitutional protection based upon whether the decision involves novel
concepts. In so doing, the Court dilutes the very essence of this basic
constitutional right.
D. S.B. 14 Does Not Survive a Strict-Scrutiny Review.
Because the parental right at issue is fundamental, we must
apply strict scrutiny. Reno v. Flores, 507 U.S. 292, 301–02 (1993)
(applying strict scrutiny to the denial of fundamental liberty interests).
For S.B. 14 to survive such review, the law must be narrowly tailored in
pursuit of a compelling state interest. See Glucksberg, 521 U.S. at 721
(noting that the Fourteenth Amendment of the U.S. Constitution forbids
the government from infringing on fundamental liberty interests at all,
no matter what process is provided, unless the infringement is narrowly
tailored to serve a compelling state interest); see also Kanuszewski v.
Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 419 (6th Cir. 2019)
(applying strict scrutiny to a state program that involved the ongoing
storage of infants’ blood samples collected without parental consent
because it violated their fundamental rights to direct the medical care
of their children).
As discussed, the established medical community’s acceptance of
the prohibited medical treatments when warranted significantly dilutes
27
the State’s interest in protecting children from the effects of such
treatment. However, even assuming the existence of a compelling state
interest, S.B. 14 is in no way narrowly tailored. Rather, the Legislature
has decided unilaterally, and categorically, that medical treatment for
minors with gender dysphoria is off the table as a therapeutic option
without any consideration for the individual needs of any unique child.
No evidence was presented in the case that the parent–plaintiffs were
doing anything other than following medical advice and their own
consciences about the best way to care for their children. Cf. In re
Abbott, 645 S.W.3d 276, 287 n.3 (Tex. 2022) (Lehrmann, J., concurring)
(“In my view, a parent’s reliance on a professional medical doctor for
medically accepted treatment simply would not amount to child
abuse.”). Certainly, no evidence was presented that the parents were
either intentionally or negligently harming their children. To the
contrary, the evidence indicated that each parent was diligently and
thoughtfully seeking medical advice about how best to deal with the
difficult and sensitive situations in which they found themselves. As
such, the Court today allows the State to substitute its judgment for that
of conscientious parents—who, again, are seeking and following
professional medical advice—regarding how best to care for their
children. And the Court allows this substitution without subjecting the
State’s action to any meaningful scrutiny.
Because the Court applies a rational-basis review, it does not
address whether S.B. 14 would survive strict scrutiny. The State argues
that it would for two reasons. First, the State argues that parents’
historic rights to the custody and care of their children do not extend to
28
“ill treatment or cruelty.” Second, it contends the Legislature has
correctly determined as a policy matter that the prohibited treatments
are too risky to be performed on children who lack the maturity to
understand long-term consequences. Id. Neither of these justifications
is sufficient to withstand strict scrutiny.
First, as noted, nothing in the record indicates, and the State has
never argued, that the parent–plaintiffs were acting out of cruelty or ill
intent. The State does not accuse these parents, or other parents of
children receiving medical treatment for gender dysphoria, of “genuine
neglect or abuse” justifying state interference. The State also put on no
evidence of doctors in Texas overprescribing unnecessary medical
intervention to children for whom it is not medically indicated. Instead,
the State relied on sweeping claims that the entire medical
establishment in America cannot be trusted; the State did not even
attempt to argue that any significant or mainstream portion of the
medical community agrees with its position. Indeed, as noted, the
State’s own expert witness described his position as “essentially me
versus the entire medical establishment.” The sheer breadth of the
State’s claim is astonishing. The State justifies a piece of legislation by
assuming that the doctors who disagree with it—the overwhelming
majority of physicians—are all acting in bad faith and violating their
Hippocratic oath.
Second, by framing S.B. 14 as fundamentally a policy decision
based on risks to children, the State directly undercuts any valid
narrow-tailoring argument. Parham, 442 U.S. at 603 (“Simply because
the decision of a parent . . . involves risks does not automatically
29
transfer the power to make that decision from the parents to some
agency or officer of the state.”). Nothing about S.B. 14 is narrowly
tailored to ensure children are given proper medical care. S.B. 14
prohibits certain medical treatments only for the purpose of
transitioning a child’s biological sex, or for affirming the child’s gender
identity if that identity is incongruent with their biological sex at birth.
If a child is prescribed hormone therapy to treat precocious puberty,
prostate or breast cancers, or polycystic ovary syndrome, the law leaves
the decisions to the medical community and their patients entirely. The
State finds no risk in the medical treatments themselves, even for
children. Here, the State seeks to intervene because it disagrees with
the parents’ decisions to pursue gender-affirming care of any kind for
their children, regardless of any individual child’s medical needs.
Notably, the WPATH or Endocrine Society guidelines could have
been used by the State as part of a tailored approach to regulating
gender-dysphoria treatment. These guidelines have built-in measures
to ensure that drastic medical intervention is not a first step or hasty
recommendation. The State’s concern over the risks of mis-, or over-,
prescription—again, a concern that I share—would be directly served by
regulation encompassing something like the WPATH or Endocrine
Society guidelines. However, the Legislature instead chose to ignore
these thoughtfully crafted standards. Because the Legislature adopted
a categorical prohibition, it cannot withstand the scrutiny our
Constitution requires of State intervention in parental medical
decision-making. After all, “the statist notion that governmental power
should supersede parental authority in all cases because some parents
30
abuse and neglect children is repugnant to American tradition.”
Parham, 442 U.S. at 603 (emphases added). However compelling the
State’s concerns may be, a law that prevents parents from acquiring
individualized medical treatment for their children, and instead
imposes a categorical bar, because some children may not need some
treatments cannot be held to be narrowly tailored. 24
III. Conclusion
The political and moral implications of gender-affirming care
have led to extreme disparities in the State’s treatment of parents with
children diagnosed with gender dysphoria and parents of children with
other medical needs. But the Legislature does not get to decide when it
must respect the fundamental rights of Texans. Because the Court
permits the State to legislate away fundamental parental rights without
the scrutiny required by our Constitution, I respectfully dissent.
Debra H. Lehrmann
Justice
OPINION FILED: June 28, 2024
24 Because I conclude that S.B. 14 is unconstitutional under the Due
Course Clause, I express no opinion on the claim that the law also violates the
Equal Protection and Equal Rights Clauses of the Texas Constitution.
31