“[W]hen a legislature ‘undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation.’” (quoting Jones v. United States, 463 U.S. 354, 370 (1983))
How later courts described this case
- “[W]hen a legislature ‘undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation.’” (quoting Jones v. United States, 463 U.S. 354, 370 (1983))
- “An individual legislator’s statements—even those of the bill’s author or sponsor—do not and cannot describe the understandings, intentions, or motives of the many other legislators who vote in favor of a bill.”
- “[P]etitioners would seek to turn a decision [Parham] which allowed a State to rely on family decisionmaking into a constitutional requirement that the State recognize such decisionmaking. But constitutional law does not work that way.”
- “[S]tatutes are presumed to be constitutional.”
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
═══════════════════════════════════════
Argued January 30, 2024
JUSTICE HUDDLE delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Boyd, Justice Devine, Justice Blacklock,
Justice Busby, Justice Bland, and Justice Young joined.
JUSTICE BLACKLOCK filed a concurring opinion, in which Justice
Devine joined.
JUSTICE BUSBY filed a concurring opinion.
JUSTICE YOUNG filed a concurring opinion.
JUSTICE LEHRMANN filed a dissenting opinion.
A new law prohibits certain medical treatments for children if
administered “[f]or the purpose of transitioning a child’s biological sex”
or “affirming the child’s perception of the child’s sex if that perception is
inconsistent with the child’s biological sex.” TEX. HEALTH & SAFETY
CODE § 161.702. Before it took effect on September 1, 2023, several
parents of children with gender dysphoria,1 together with physicians
and groups that would be affected by the law, sued to enjoin its
enforcement, alleging that it is facially unconstitutional. The trial court
concluded that the law likely violates the Texas Constitution, and it
temporarily enjoined the law’s enforcement.
On direct appeal of the temporary injunction, we do not attempt
to identify the most appropriate treatment for a child suffering from
gender dysphoria. That is a complicated question hotly debated by
medical experts and policy makers throughout this country and the
1 According to the American Psychiatric Association, gender dysphoria
is the psychological distress that results from an incongruence of at least six
months’ duration between one’s sex at birth and one’s gender identity. AM.
PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS, FIFTH EDITION, TEXT REVISION 511–12 (2022).
2
world.2 And, to be sure, neither this Court nor any party to this
proceeding suggests that children suffering from gender dysphoria are
undeserving of treatment and support. The reverse is obviously true:
they, like all children, deserve the most appropriate treatment together
with support, love, and empathy. We emphasize, though, that the only
2 As of June 2024, at least twenty other states have enacted restrictions
on both surgical and nonsurgical treatments for minors similar to those in
Texas. See ALA. CODE § 26-26-4; ARK. CODE § 20-9-1502; FLA. STAT. § 456.52;
GA. CODE § 31-7-3.5; IDAHO CODE § 18-1506C; IND. CODE § 25-1-22-13; IOWA
CODE § 147.164; KY. REV. STAT. § 311.372; LA. STAT. § 40:1098.2; MISS. CODE
§ 41-141-5; MO. REV. STAT. § 191.1720; MONT. CODE § 50-4-1004; N.C. GEN.
STAT. § 90-21.151; N.D. CENT. CODE § 12.1-36.1-02; OHIO REV. CODE
§ 3129.02; OKLA. STAT. tit. 63, § 2607.1; S.C. CODE § 44-42-320; S.D. CODIFIED
LAWS § 34-24-34; TENN. CODE § 68-33-103; WYO. STAT. § 35-4-1001. At least
four additional states have enacted laws that prohibit surgical procedures but
not all nonsurgical treatments. See ARIZ. REV. STAT. § 32-3230; NEB. REV.
STAT. § 71-7304; UTAH CODE § 58-68-502(1)(g); W. VA. CODE § 30-3-20.
Conversely, at least fourteen states, either by statute or executive order,
provide various protections for those seeking or providing medical treatment
for gender dysphoria. See CAL. PENAL CODE § 819; COLO. REV. STAT.
§ 12-30-121(2); CONN. GEN. STAT. §§ 52-571n(b), 54-155b; 735 ILL. COMP. STAT.
40/28-20; ME. STAT. tit. 22, § 1508; Md. Exec. Order 01.01.2023.08 (2023);
MASS. GEN. LAWS ch. 12, § 11I 1/2(b); MINN. STAT. § 260.925; N.J. Exec. Order
No. 326 (2023); N.M. STAT. § 24-34-3; N.Y. EDUC. LAW § 6531-b(2); OR. REV.
STAT. § 414.769(3); VT. STAT. tit. 15, § 1152(a); WASH. REV. CODE
§§ 7.115.020, .040.
In March of this year, England’s National Health Service announced it
would limit the use of puberty suppressing hormones for children, concluding
that “there is not enough evidence to support the safety or clinical effectiveness
of [puberty suppressing hormones] to make the treatment routinely available
at this time.” NHS ENGLAND, CLINICAL POLICY: PUBERTY SUPPRESSING
HORMONES (PSH) FOR CHILDREN AND YOUNG PEOPLE WHO HAVE GENDER
INCONGRUENCE/GENDER DYSPHORIA 3 (Mar. 12, 2024). And the health
agencies in at least four other European nations have recently revised their
health policies to restrict hormone treatments for children. See Azeen
Ghorayshi, Youth Gender Medications Limited in England, Part of Big Shift in
Europe, N.Y. TIMES, Apr. 9, 2024 (describing restrictions recently implemented
or adopted in Finland, Sweden, Norway, and Denmark).
3
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.
We conclude that plaintiffs failed to meet that burden. We have
said—and we reaffirm today—that fit parents have a fundamental
interest in directing the care, custody, and control of their children free
from government interference. But we have never defined the source or
precise scope of this interest, and our precedents make clear that this
interest is not absolute. Indeed, we have never held that a fit parent’s
interest in caring for her child free from government interference,
though weighty, triggers heightened scrutiny of every statute that
restricts any asserted right connected to that interest. 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.
For the reasons explained below, we conclude 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
4
care providers of an alleged property right in their medical licenses or
claimed right to occupational freedom. We also conclude the law does
not unconstitutionally deny or abridge equality under the law because
of sex or any other characteristic asserted by plaintiffs. We therefore
reverse and vacate the trial court’s order.
I. Background
In 2023, the Legislature enacted Senate Bill 14, captioned a
statute “relating to prohibitions on the provision to certain children of
procedures and treatments for gender transitioning, gender
reassignment, or gender dysphoria.” Act of May 17, 2023, 88th Leg.,
R.S., ch. 335.3 S.B. 14 primarily modifies Chapter 161 of the Health and
Safety Code by adding a new Subchapter X addressing “Gender
Transitioning and Gender Reassignment Procedures and Treatments
for Certain Children.” Id. § 2. The statute prohibits a physician4 or
health care provider5 from performing certain actions on a child6 when
those actions are performed for one of two purposes: (1) “transitioning a
3 S.B. 14 received roughly sixty percent approval in both chambers of
the Legislature. See Act of May 17, 2023 (noting that the bill was approved in
the Senate by a vote of 19–12 and in the House by a vote of 87–56 with two
present members not voting). It was signed by the Governor on June 2 and
took effect on September 1, 2023. Id. § 9.
4 “Physician” is defined as “a person licensed to practice medicine in this
state.” TEX. HEALTH & SAFETY CODE § 161.701(4).
5 “Health care provider” is defined as “a person other than a physician
who is licensed, certified, or otherwise authorized by this state’s laws to provide
or render health care or to dispense or prescribe a prescription drug in the
ordinary course of business or practice of a profession.” TEX. HEALTH & SAFETY
CODE § 161.701(2).
6 “Child” is defined as “an individual who is younger than 18 years of
age.” TEX. HEALTH & SAFETY CODE § 161.701(1).
5
child’s biological sex as determined by the sex organs, chromosomes, and
endogenous profiles of the child”; or (2) “affirming the child’s perception
of the child’s sex if that perception is inconsistent with the child’s
biological sex.” TEX. HEALTH & SAFETY CODE § 161.702. The statute
identifies three forms of prohibited surgical intervention: (1) “a surgery
that sterilizes the child”; (2) “a mastectomy”; and (3) removal of “any
otherwise healthy or non-diseased body part or tissue.” Id. § 161.702(1),
(2), (4). The statute also prohibits providing, prescribing, administering,
or dispensing the following prescription drugs: (1) “puberty suppression
or blocking prescription drugs to stop or delay normal puberty”;
(2) “supraphysiologic doses of testosterone to females”; and
(3) “supraphysiologic doses of estrogen to males.” Id. § 161.702(3).7
There are two exceptions. First, “with the consent of the child’s
parent or legal guardian,” the prohibitions in Section 161.702 do not
apply to (1) prescription drugs that suppress or block puberty “for the
purpose of normalizing puberty for a minor experiencing precocious
puberty” or (2) “appropriate and medically necessary procedures or
treatments” for a child that either “is born with a medically verifiable
genetic disorder of sex development” or “does not have the normal sex
chromosome structure for male or female as determined by a physician
through genetic testing.” Id. § 161.703(a). Second, the statute’s
prohibition against certain prescription drugs does not apply if that drug
is “part of a continuing course of treatment that the child began before
7 “Supraphysiologic” means “greater than normally present in the
body.” Supraphysiological, MERRIAM-WEBSTER ONLINE DICTIONARY, https://
www.merriam-webster.com/medical/supraphysiologic.
6
June 1, 2023,” and “the child attended 12 or more sessions of mental
health counseling or psychotherapy during a period of at least six
months” before treatment began. Id. § 161.703(b). However, the statute
limits this second exception: the child “shall wean off the prescription
drug over a period of time and in a manner that is safe and medically
appropriate and that minimizes the risk of complications,” and the child
may not switch to another prohibited prescription drug or treatment.
Id. § 161.703(c).
S.B. 14 also amends Section 164.052(a) of the Occupations Code
to add violations of Health and Safety Code Section 161.702 to a list of
over twenty “prohibited practice[s]” by a physician. See TEX. OCC. CODE
§ 164.052(a)(24). And it adds Occupations Code Section 164.0552, which
requires the Texas Medical Board to revoke a physician’s “license or
other authorization to practice medicine” for violating Section 161.702.
Id. § 164.0552(a). The statute expressly makes both changes to the
Occupations Code applicable only to conduct that occurs on or after
S.B. 14’s effective date. See Act of May 17, 2023, § 6. Finally, the statute
provides that a state-provided child health plan for low-income,
uninsured children under Chapter 62 of the Health and Safety Code may
not provide coverage for the services prohibited by Section 161.702. See
TEX. HEALTH & SAFETY CODE § 62.151(g).
A few weeks before S.B. 14 took effect, several plaintiffs sued in
Travis County District Court, seeking a declaration that the statute is
“unconstitutional, void, and unenforceable in its entirety.” They also
sought temporary and permanent injunctions prohibiting the statute’s
implementation or enforcement.
7
Among the plaintiffs are the parents of five children between the
ages of nine and sixteen. Each alleges that his or her child has been
diagnosed with gender dysphoria and, in consultation with a physician,
either started or planned to start a course of treatment prohibited by the
statute, as follows:
Luna Loe,8 age twelve, and Samantha Soe, age fifteen, had
been taking puberty blockers before S.B. 14 took effect.
Nathan Noe, age sixteen, and Grayson Goe, age fifteen, had
been taking testosterone, and Samantha had been taking
estradiol.9
Maeve Moe, age nine, intends to take puberty blockers when
she reaches puberty.
Three licensed Texas physicians—Dr. Richard Ogdon Roberts III,
Dr. David L. Paul, and Dr. Patrick W. O’Malley—are also plaintiffs.
They allege that, but for S.B. 14, they would continue to treat their
underage gender dysphoria patients by performing the procedures and
treatments the statute prohibits if called for by the generally accepted
standard of care. The remaining plaintiffs are two organizations that
advocate for LGBTQ+ rights: PFLAG, Inc.; and the American
Association of Physicians for Human Rights, Inc. d/b/a GLMA.
The defendants in this suit are the State of Texas; the Office of
the Attorney General; Ken Paxton, in his official capacity as Attorney
8 By agreement of the parties, the minor plaintiffs and their parents
were permitted to proceed in all public filings under pseudonyms.
9 Testosterone is a hormone that stimulates development of male sex
characteristics, and estradiol is an estrogen hormone that stimulates
development of female sex characteristics.
8
General10; the Texas Medical Board; and the Texas Health and Human
Services Commission. They jointly filed a plea to the jurisdiction and a
response to plaintiffs’ application for a temporary injunction, arguing,
among other things, that plaintiffs’ constitutional claims were facially
invalid.
The trial court conducted a two-day evidentiary hearing.
Following the hearing, it entered a temporary injunction immediately
enjoining all defendants from enforcing S.B. 14, based on the following
findings:
(1) the statute “likely violates Article I, Section 19 of the Texas
Constitution by infringing upon the fundamental right of
parents to make decisions concerning the care, custody, and
control of their children”;
(2) the statute “likely violates Article I, Section 19 of the Texas
Constitution by infringing upon Texas physicians’ right of
occupational freedom”; and
(3) the statute “likely violates Article I, Sections 3 and 3a [of] the
Texas Constitution by discriminating against transgender
adolescents with gender dysphoria because of their sex, sex
stereotypes, and transgender status.”
Because the trial court granted a temporary injunction based on
its conclusion that S.B. 14 likely violates the Texas Constitution,
defendants appealed the order directly to this Court. See TEX. GOV’T
10 At the time suit was filed, John Scott was serving as Provisional
Attorney General during Ken Paxton’s mandatory suspension from office. See
TEX. CONST. art. XV, § 5. Plaintiffs’ suit originally named Scott in his official
capacity as Provisional Attorney General. By the time the temporary
injunction was issued, Scott had been replaced as Provisional Attorney General
by Angela Colmenero. While this appeal was pending, Paxton was reinstated
as Attorney General.
9
CODE § 22.001(c) (“An appeal may be taken directly to the supreme court
from an order of a trial court granting or denying an interlocutory or
permanent injunction on the ground of the constitutionality of a statute
of this state.”). We noted probable jurisdiction and set the appeal for
oral argument.
II. Standing
We begin by evaluating our jurisdiction. See Tex. Propane Gas
Ass’n v. City of Houston, 622 S.W.3d 791, 797 (Tex. 2021)
(“[S]ubject-matter jurisdiction must exist before we can consider the
merits, . . . and ‘we have an obligation to examine our jurisdiction any
time it is in doubt.’” (quoting Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d
763, 774 (Tex. 2020))). If plaintiffs lack standing to assert their claim, a
“court has no jurisdiction over [the] claim.” DaimlerChrysler Corp. v.
Inman, 252 S.W.3d 299, 304 (Tex. 2008). But we need not undertake a
plaintiff-by-plaintiff analysis on the question because the existence of
one plaintiff with standing is sufficient to confer jurisdiction in suits
seeking to enjoin enforcement of a law. See State v. Zurawski, ___
S.W.3d ___, 2024 WL 2787913, at *6 (Tex. May 31, 2024).
The first set of plaintiffs are parents suing individually and on
behalf of their children. They allege S.B. 14 infringes on their right to
make medical decisions for their children and unconstitutionally
discriminates against their children for being transgender. At least
some of these parents allege that their children were previously
receiving treatments that the statute now prohibits and that they would
resume those treatments if this suit were successful. Defendants do not
argue that these parents have not alleged an injury in fact or that the
10
relief they seek would not provide redress. Whatever their claims’
ultimate merits, the parents have concretely alleged that S.B. 14
prevents them and their children from engaging in constitutionally
protected conduct they would continue to engage in but for the statute.
Those allegations are sufficient to establish those parents’ standing. See
Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 616 S.W.3d 558, 567
(Tex. 2021) (“Constitutional standing requires a concrete injury that is
both traceable to the defendant’s conduct and redressable by court
order.”).
The plaintiffs also include physicians who allege they have
previously prescribed or administered treatments that S.B. 14 now
prohibits and would continue to do so but for the statute. Defendants
assert these physicians lack standing to assert their patients’ claims.
We need not address that issue because we conclude these physicians
have standing to press their own claims—that S.B. 14 infringes on their
claimed right to occupational freedom. And because the plaintiff
parents and physicians, together, have standing to assert each of the
three alleged constitutional violations, we can proceed to the merits with
our jurisdiction secure and without addressing whether the plaintiff
organizations also have standing.
III. Are plaintiffs entitled to a temporary injunction?
To obtain a temporary injunction, the applicant must plead and
prove (1) a cause of action against the defendant; (2) a probable right to
the relief sought; and (3) a probable, imminent, and irreparable injury
in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002). The Court reviews an order granting a temporary injunction for
11
an abuse of discretion. Tex. Educ. Agency v. Hous. Indep. Sch. Dist., 660
S.W.3d 108, 116 (Tex. 2023). Under this standard, we defer to the trial
court’s factual findings if they are supported by the evidence, but we
review legal determinations de novo. Haedge v. Cent. Tex. Cattlemen’s
Ass’n, 603 S.W.3d 824, 827 (Tex. 2020).
Here, plaintiffs make a facial challenge to the constitutionality of
S.B. 14, seeking a declaration that it is unconstitutional “in its entirety.”
The ultimate question of whether a statute violates the Constitution is
a question of law. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 932
(Tex. 1998).11
When a party challenges the constitutionality of a statute, we
begin with a strong presumption that the statute is valid. See Hegar v.
Tex. Small Tobacco Coal., 496 S.W.3d 778, 785 (Tex. 2016) (“[A]
challenged statute is entitled to a ‘strong presumption’ of constitutional
validity.” (quoting Vinson v. Burgess, 773 S.W.2d 263, 266 (Tex. 1989)));
Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 87 (Tex. 2015)
(“[S]tatutes are presumed to be constitutional.”); Tex. State Bd. of
Barber Exam’rs v. Beaumont Barber Coll., Inc., 454 S.W.2d 729, 732
(Tex. 1970) (“Legislative enactments will not be held unconstitutional
and invalid unless it is absolutely necessary to so hold.”); Smith v. Davis,
426 S.W.2d 827, 831 (Tex. 1968) (“It is to be presumed that the
Legislature has not acted unreasonably or arbitrarily; and a mere
difference of opinion, where reasonable minds could differ, is not a
11 Although the trial court labeled as “findings” its conclusions that
S.B. 14 likely violates the Constitution, we are not bound by this designation
with respect to applying the appropriate standard of review. Tex. Outfitters
Ltd., LLC v. Nicholson, 572 S.W.3d 647, 653 n.7 (Tex. 2019).
12
sufficient basis for striking down legislation as arbitrary or
unreasonable. The wisdom or expediency of the law is the Legislature’s
prerogative, not ours.”).
As in the trial court, plaintiffs here assert that S.B. 14 is facially
unconstitutional for three reasons: (1) it infringes on the fundamental
rights of parents to make decisions concerning the care of their children
in violation of Article I, Section 19 (the Due Course of Law Clause); (2) it
deprives Texas physicians of a vested property interest in their medical
licenses and infringes on the occupational freedoms of Texas healthcare
providers in violation of the Due Course of Law Clause; and (3) it
discriminates against transgender children and their parents because of
sex and transgender status in violation of Article I, Section 3 (the Equal
Protection Clause) and Article I, Section 3a (the Equal Rights
Amendment). The trial court concluded that plaintiffs established a
probable right to relief on all three constitutional challenges. We
address each of these theories in turn.
A. Does the statute unconstitutionally infringe on
parents’ ability to make medical decisions for their
children?
First, the trial court concluded the statute likely violates the Due
Course of Law Clause “by infringing upon the fundamental right of
parents to make decisions concerning the care, custody, and control of
their children.” According to the trial court, this right includes the right
of parents “to give, withhold, and withdraw consent to medical
treatment for their children” as well as “to seek and to follow medical
advice to protect the health and wellbeing of their minor children.”
13
1. Applicable law
The Texas Constitution provides that “[n]o 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.” TEX. CONST. art. I, § 19. We have adopted a two-step inquiry to
determine whether a government action violates our Constitution’s
guarantee of “due course of the law.” See Tex. S. Univ. v. Villarreal, 620
S.W.3d 899, 905 (Tex. 2021) (citing Univ. of Tex. Med. Sch. at Hous. v.
Than, 901 S.W.2d 926, 929 (Tex. 1995)). First, we consider whether the
plaintiff has a liberty, property, or other enumerated interest that is
entitled to protection. Id. Second, if a protected interest is implicated,
we consider whether the defendant followed due course of law in
depriving the plaintiff of that interest. Id. This inquiry requires a
careful analysis of the interest of which the plaintiff is allegedly being
deprived. See id. (noting that a constitutional challenge to a student’s
dismissal for poor academic performance requires courts to focus on
whether the dismissal “interferes with the student’s liberty interest in
his or her reputation and employability, not on whether education is a
protected liberty interest”); see also Washington v. Glucksberg, 521 U.S.
702, 721 (1997) (stating that the U.S. Supreme Court requires a “careful
description” of the asserted fundamental liberty interest (quoting Reno
v. Flores, 507 U.S. 292, 302 (1993))).
If there is no deprivation of a constitutionally protected interest,
then a statute satisfies the Due Course of Law Clause as long as it is
rationally related to a legitimate state purpose. See Barshop v. Medina
14
Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 633 (Tex.
1996).
This Court has repeatedly recognized that parents have a
fundamental interest in making decisions regarding the care, custody,
and control of their children. A half century ago, we recognized that this
“natural right” between parents and children is “one of constitutional
dimensions.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). We
thus held that when the State seeks a parental termination order or
other action that “permanently sunders those ties,” those proceedings
should be “strictly scrutinized.” Id.; see also Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985) (“[T]ermination proceedings should be strictly
scrutinized, and involuntary termination statutes are strictly construed
in favor of the parent.”).
Similarly, we have recognized that nonparents may not be
afforded rights of possession or other rights concerning a child’s care
without first overcoming the presumption that a fit parent acts in the
child’s best interests. Quoting the U.S. Supreme Court’s plurality
opinion in Troxel v. Granville, we stated, “[S]o long as a parent
adequately cares for his or her children (i.e., is fit), there will normally
be no reason for the State to inject itself into the private realm of the
family . . . .” In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006)
(alteration in original) (quoting Troxel v. Granville, 530 U.S. 57, 68
(2000) (plurality op.)). Plaintiffs point to these cases to support their
assertion that the statute unconstitutionally infringes on what should
be an unfettered right of parents to exercise absolute control over
decisions regarding a child’s medical treatment.
15
Plaintiffs’ argument has some force, but only up to a point.
Parents’ right to exercise control over decision-making for their children
has limits: “the rights of natural parents are not absolute.” In re J.W.T.,
872 S.W.2d 189, 195 (Tex. 1994); see also DeWitt v. Brooks, 182 S.W.2d
687, 690 (Tex. 1944) (“While ordinarily the natural parents are entitled
to the custody and care of their child, this is not an absolute
unconditional right.”).
Of significance here, we have never questioned the Legislature’s
constitutional authority to regulate medical treatments—including by
prohibiting certain treatments outright—for both adults and children.
See TEX. CONST. art. XVI, § 31 (“The Legislature may pass laws
prescribing the qualifications of practitioners of medicine in this State
. . . .”); Martinez v. Tex. State Bd. of Med. Exam’rs, 476 S.W.2d 400, 405
(Tex. App.—San Antonio 1972, writ ref’d n.r.e.) (“[T]he Legislature was
expressly granted the constitutional authority to regulate the practice
of medicine.”); Kelley v. Tex. State Bd. of Med. Exam’rs, 467 S.W.2d 539,
546 (Tex. App.—Fort Worth 1971, writ ref’d n.r.e.) (“It is the right and
duty of the State to regulate and control medical practice, so that the
public safety and welfare will be served and promoted.”). Indeed, state
legislatures have long played a critical and recognized role in regulating
health and welfare, which is why those efforts receive “a strong
presumption of validity.” L.W. v. Skrmetti, 83 F.4th 460, 473 (6th Cir.
2023) (quoting Heller v. Doe, 509 U.S. 312, 319 (1993)), cert. granted,
2024 WL 3089532 (U.S. June 24, 2024) (No. 23-477); see also Gonzales
v. Carhart, 550 U.S. 124, 157 (2007) (“Under our precedents it is clear
the State has a significant role to play in regulating the medical
16
profession.”); Garcia v. Tex. State Bd. of Med. Exam’rs, 384 F. Supp. 434,
437 (W.D. Tex. 1974) (three-judge panel) (“This right of a State to
regulate under its police powers all aspects of the practice of medicine
and thereby help provide for the general health and welfare of its
citizens is of such vast importance as to approach the status of a duty.”),
aff’d, 421 U.S. 995 (1975). In short, our precedents acknowledge that
parental rights, though weighty, at times give way to other competing
interests such as the interest in protecting children from harm. This is
underscored by our Constitution’s express authorization of legislative
regulation of the practice of medicine. Thus, to the extent parents
possess a fundamental interest in obtaining medical care for their
children, it has extended only to those medical treatments that are
legally available.
2. Analysis
We conclude that the parent plaintiffs failed to establish a
probable right to relief on their claim that the statute unconstitutionally
deprives them of a protected interest. When analyzing a challenge
under the Due Course of Law Clause, we first determine whether the
plaintiff has identified a “liberty, property, or other enumerated
interest” that is entitled to protection. Villarreal, 620 S.W.3d at 905.
We then examine whether the State “depriv[ed]” the plaintiff of that
interest and, if so, whether it failed to follow due course of law in doing
so. Id.
Glucksberg provides a useful guide. In that case, the plaintiffs
sued for a declaration that a Washington statute prohibiting assisted
suicide was unconstitutional under the Due Process Clause of the
17
Fourteenth Amendment. 521 U.S. at 707–08. In concluding that the
statute was constitutional, the Supreme Court’s analysis focused on
whether “the asserted ‘right’ to assistance in committing suicide” is a
fundamental liberty interest protected by the U.S. Constitution. Id. at
728. The Court rejected an approach that would have defined the
asserted right more broadly as a natural extension of “abstract concepts
of personal autonomy.” Id. at 725. Plaintiffs here (and the dissent)
likewise seek to define the asserted right as nothing more than an
extension of “parental autonomy.” The Glucksberg Court explained the
Constitution requires a carefully circumscribed description of the
asserted right or liberty interest at issue:
By extending constitutional protection to an asserted right
or liberty interest, we, to a great extent, place the matter
outside the arena of public debate and legislative action.
We must therefore exercise the utmost care whenever we
are asked to break new ground in this field, lest the liberty
protected by the Due Process Clause be subtly transformed
into the policy preferences of the Members of this Court.
Id. at 720 (citations and internal quotation marks omitted).
The Supreme Court has “regularly observed that the Due Process
Clause specially protects those fundamental rights and liberties which
are, objectively, deeply rooted in this Nation’s history and tradition, and
implicit in the concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed.” Id. at 720–21 (citations and
internal quotation marks omitted). We apply a similar analysis in
reviewing plaintiffs’ claim that S.B. 14 deprives them of a
constitutionally protected right. See Tex. Dep’t of State Health Servs. v.
Crown Distrib. LLC, 647 S.W.3d 648, 656 (Tex. 2022) (“[W]e should
18
define the interest as specifically as necessary to accurately reflect the
constitution’s language (‘liberty’ and ‘property’), our precedential
construction of that language, and the realities of the deprivation the
[plaintiffs] are claiming.”).
Plaintiffs assert that S.B. 14 violates the Due Course of Law
Clause by infringing on parents’ “fundamental autonomy right to make
decisions about their children’s care, including directing their medical
care.” We have previously described “[p]arental control and autonomy”
as a “fundamental liberty interest.” In re Scheller, 325 S.W.3d 640, 644
(Tex. 2010) (quoting In re Derzapf, 219 S.W.3d 327, 335 (Tex. 2007)
(quoting Troxel, 530 U.S. at 65)). Indeed, we have described the “natural
right” between parents and their children as one “of constitutional
dimensions.” Wiley, 543 S.W.2d at 352. Certainly, then, when the State
seeks to sever the parent–child relationship, those proceedings must be
“strictly scrutinized.” Id.
But neither our society’s history and legal traditions nor this
Court’s precedents support a view of the scope of parents’
constitutionally protected interest in directing their children’s care,
custody, and control that would place any action a parent may
undertake outside the government’s authority to regulate. See J.W.T.,
872 S.W.2d at 195; DeWitt, 182 S.W.2d at 690. This plays out in various
contexts, many of which are deeply embedded in our legal history. Some
longstanding restrictions on children’s activities, like prohibiting child
labor and access to tattoos and tobacco, limit parental authority. See
TEX. LAB. CODE § 51.011 (prohibiting the employment of a child younger
than fourteen except under limited circumstances); TEX. HEALTH &
19
SAFETY CODE § 146.012(a)(1), (a-1) (prohibiting a child younger than
eighteen from obtaining a tattoo, even with parental consent, except to
cover certain other tattoos or markings); id. § 161.082(a) (prohibiting the
giving or selling of cigarettes or tobacco products to someone younger
than twenty-one). Tattoos provide a particularly apt example, as they
involve what is in most cases a permanent adjustment to the human
body that is not intended to restore the body’s physical condition but
instead applied for psychological reasons. The Legislature prohibits
children from being tattooed, even with their parents’ consent, both
because children may not fully appreciate the consequences of their
actions and because of the risk that parents may be imposing their own
desires, however well-meaning, on the child.
Whatever the context in which they arise, these examples
demonstrate that, while parents have a large degree of control and
authority to decide what is best for their children, parental control and
authority have never been understood as constitutionally mandated
absolutes. Said differently, a fit parent’s fundamental interest in caring
for her child free from government interference extends to choosing from
among legally available medical treatments, but it never has been
understood to permit a parent to demand medical treatment that is not
legally available. The U.S. Supreme Court cases on which our Court
relied in recognizing the “constitutional dimensions” of parental rights
likewise acknowledged that the scope of parental authority has always
had limits. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 220 (1972) (“It is
true that activities of individuals, even when religiously based, are often
20
subject to regulation by the States in the exercise of their undoubted
power to promote the health, safety, and general welfare . . . .”).
Carefully described, the purported right for which plaintiffs seek
constitutional protection is the right of parents to allow their children
access to relatively new medical procedures and treatments for a
relatively newly defined medical condition. Plaintiffs claim this
asserted right is merely a part of their constitutionally recognized
interest in “parental autonomy.” But just as the U.S. Supreme Court
did in Glucksberg, and the Sixth Circuit recently did in a case nearly
identical to this one, we decline the invitation to extend constitutional
protection to a claimed right—thus placing it “outside the arena of public
debate and legislative action”—merely because the conduct, were it
allowed, would entail the exercise of parental judgment or
decision-making. 521 U.S. at 720; see Skrmetti, 83 F.4th at 475
(“[C]laimants overstate the parental right by climbing up the ladder of
generality to a perch—in which parents control all drug and other
medical treatments for their children—that the case law and our
traditions simply do not support.”).
Plaintiffs’ argument is particularly weak in the context of medical
care, as the Legislature has express constitutional authority to regulate
the practice of medicine. TEX. CONST. art. XVI, § 31. If it may exercise
that authority to regulate the practice of medicine and available
treatments for adults, it surely must be true that it may do the same for
treatments for children. Nor is there support for the idea that regulation
of children’s medical treatments would be more closely scrutinized than
21
regulation of medical treatments for adults because children’s medical
treatments usually require parental consent on the child’s behalf.
Our dissenting colleague places much weight on Parham v. J. R.,
442 U.S. 584 (1979), which involved a procedural due process claim and
does not support a conclusion that parents’ fundamental interest in their
children’s care includes a right to obtain any medical treatment for
them, such as those at issue here. The issue in Parham was whether a
state statute that allowed parents to commit their children to a
psychiatric hospital unconstitutionally deprived the children of
procedural due process because there was no formal hearing before they
were committed. See id. at 596–97. In concluding the statute passed
constitutional muster, the Court considered the children’s liberty
interest in freedom from confinement together with the interests of the
parents and the State. Id. at 600–06. The Court noted that parents
generally have “broad parental authority” over their children as well as
a “high duty” to seek and follow medical advice. Id. at 602. And it
acknowledged the presumption that parents act in their children’s best
interests, though it noted that presumption can be rebutted. Id. But
nothing in the Court’s opinion suggests that it was recognizing a
substantive constitutional right for parents to obtain novel medical care
for their children. See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261,
286 (1990) (“[P]etitioners would seek to turn a decision [Parham] which
allowed a State to rely on family decisionmaking into a constitutional
requirement that the State recognize such decisionmaking. But
constitutional law does not work that way.”). As the Sixth Circuit
concluded, “[t]his traditional due process ruling does not support today’s
22
untraditional request for relief under substantive due process.”
Skrmetti, 83 F.4th at 476–77.12
We need not and do not hold that the Legislature could withdraw
from parents the authority to choose any legal, available medical
treatment. Rather, we hold only that novel treatments for a novel
condition are generally within the Legislature’s power to regulate
without facing heightened scrutiny. See Kansas v. Hendricks, 521 U.S.
346, 360 n.3 (1997) (“[W]hen a legislature ‘undertakes to act in areas
fraught with medical and scientific uncertainties, legislative options
must be especially broad and courts should be cautious not to rewrite
legislation.’” (quoting Jones v. United States, 463 U.S. 354, 370 (1983))).
Plaintiffs’ expert testified that the first use of puberty blockers for
children with gender dysphoria was in Europe in the 1990s, and the
earliest identified study regarding the effectiveness and risks of the
treatments at issue here was published in 2009. Whatever the precise
contours of the fundamental liberty interest held by parents, the notion
that it includes a right to pursue the treatments at issue here is not
“deeply rooted in our history and traditions.” Glucksberg, 521 U.S. at
727; see also Skrmetti, 83 F.4th at 475 (“This country does not have a
custom of permitting parents to obtain banned medical treatments for
their children and to override contrary legislative policy judgments in
12 In rejecting the dissenters’ argument that only an adversarial hearing
could protect the children’s procedural due process rights, the Parham Court
criticized them for “[r]elying on general statements from past decisions dealing
with governmental actions not even remotely similar to those involved here.”
442 U.S. at 608 n.16. The dissent here likewise relies on general statements
regarding parental autonomy in unrelated contexts to support its one-size-fits-
all approach to reviewing the Legislature’s actions.
23
the process.”); Eknes-Tucker v. Governor, 80 F.4th 1205, 1224 (11th Cir.
2023) (“[N]one of the binding decisions regarding substantive due
process establishes that there is a fundamental right to treat one’s
children with transitioning medications subject to medically accepted
standards.” (alteration and internal quotation marks omitted)); Abigail
All. for Better Access to Developmental Drugs v. von Eschenbach, 495
F.3d 695, 710 & n.18 (D.C. Cir. 2007) (en banc) (identifying multiple
courts that have “rejected arguments that the Constitution provides an
affirmative right of access to particular medical treatments reasonably
prohibited by the Government”). Moreover, the contours of a
constitutional right do not turn on plaintiffs’ assertion that a particular
treatment is currently “recognized by the medical community.” See
Jones, 463 U.S. at 364 n.13 (“We do not agree with the suggestion that
Congress’ power to legislate in this area depends on the research
conducted by the psychiatric community.”); Eknes-Tucker, 80 F.4th at
1224 (“[T]hose decisions applying the fundamental parental right in the
context of medical decision-making do not establish that parents have a
derivative fundamental right to obtain a particular medical treatment
for their children as long as a critical mass of medical professionals
approve.”).13
13 The dissent describes the medical treatments at issue as the product
of “well-established industry standards.” Post at 11 (Lehrmann, J.,
dissenting). It relies heavily on standards of care promulgated less than two
years ago by the World Professional Association for Transgender Health
(WPATH), an organization whose mission includes “advocacy that affects the
lives of [transgender and gender diverse] people.” E. Coleman et al., Standards
of Care for the Health of Transgender and Gender Diverse People, Version 8,
INT’L J. TRANSGENDER HEALTH S1, S5 (2022). Although WPATH had
24
While S.B. 14 limits the availability of novel medical treatments
for children diagnosed with a novel medical condition, it does not deprive
those children’s parents of any constitutionally protected right or
undermine a custom embedded in our history or traditions. The statute
does not sever parents’ control or autonomy to make medical decisions
for their children, nor does it displace a child’s parent as the ultimate
decision maker. The law merely restricts the availability of new
treatments with which medical providers may treat children diagnosed
with a newly defined medical condition, gender dysphoria. It therefore
previously issued standards of care for treatment of transgender individuals,
it describes its 2022 standards as “the first to be developed using an
evidence-based approach.” WPATH, SOC8 History and Purpose 1.3, https://
www.wpath.org/soc8/history (last visited June 26, 2024). In issuing its 2022
standards, however, WPATH “note[d] the paucity of research supporting the
long-term effectiveness of medical treatment for adolescents with gender
dysphoria.” Chad Terhune et al., As more transgender children seek medical
care, families confront many unknowns, REUTERS, Oct. 6, 2022,
https://reuters.com/investigates/special-report/usa-transyouth-care/; see also
Coleman, supra, at S46 (“[A] systematic review regarding outcomes of
treatment in adolescents is not possible.”). Earlier this year, a series of leaked
internal communications revealed that “the provision of so-called
gender-affirming care is riddled with far more doubt than WPATH’s message
that such treatments are ‘not considered experimental’.” The WPATH files:
Leaked conversations throw light on a controversial field of medicine, THE
ECONOMIST, Mar. 9, 2024, at 25.
The novelty of using medical treatments and procedures on children
with gender dysphoria is further demonstrated by the fact that it is only within
the last decade or so that medical organizations like the American Psychiatric
Association and the World Health Organization moved away from
characterizing gender dysphoria as a purely mental-health disorder. See
Transgender no longer recognised as “disorder” by WHO, BBC NEWS (May 29,
2019), https://www.bbc.com/news/health-48448804; Traci G. Lee, Being
transgender no longer a “mental disorder”: APA, NBC NEWS (Dec. 4, 2012)
https://www.nbcnews.com/id/wbna50075205.
25
will satisfy the Due Course of Law Clause if it is rationally related to a
legitimate state purpose. See Barshop, 925 S.W.2d at 633.14
Plaintiffs contend that the statute falls short of even this bar
because it is “rooted in anti-transgender animus.” In support, they first
argue that the evidence establishes that each of the prohibited
procedures is safe, effective, and accepted in the medical community.15
But a court’s determination regarding the ultimate correctness of the
Legislature’s findings is not a proper basis for rejecting a statute. Owens
Corning v. Carter, 997 S.W.2d 560, 582 (Tex. 1999); Tex. Workers’ Comp.
Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995). Plaintiffs do not
14 In applying this standard, we need not and do not decide whether
every law that could be argued to infringe on a fit parent’s interest in directing
the care, custody, and control of her child would also be subject to the same
level of scrutiny. Whether it would depends on many factors, including (to
name just two): (1) whether there is express constitutional authorization for or
prohibition against the challenged law; and (2) whether the regulated conduct
is novel or firmly supported in our history and traditions. These considerations
are not exhaustive but merely meant to illustrate that our holding today should
not be read to mean that one size fits all. We do not foreclose the possibility
that a different law that could be argued to constitute an impermissible
encroachment on a fit parent’s rights could be subject to heightened scrutiny.
15 The dissent twice characterizes testimony from the State’s expert, Dr.
Cantor, as an admission that his position was contrary to “the entire medical
establishment.” Post at 15, 29 (Lehrmann, J., dissenting). Dr. Cantor was
responding to a question pointing out that an Alabama federal district court
judge (whose order enjoining a statute similar to Texas’s was later vacated by
the Eleventh Circuit) gave his testimony little weight. See Eknes-Tucker v.
Marshall, 603 F. Supp. 3d 1131, 1142–43 (M.D. Ala. 2022), rev’d sub nom.
Eknes-Tucker v. Governor, 80 F.4th 1205 (11th Cir. 2023). A fairer reading of
his testimony is that he was theorizing that the district court judge may have
justified minimizing his opinion by viewing it as “essentially me versus the
entire medical establishment.” As he made clear elsewhere in his testimony,
Dr. Cantor’s opinion is that the medical research studies do not support any
established treatment for children with gender dysphoria, an opinion
supported by health agencies in Europe. See Ghorayshi, supra note 2.
26
(and cannot) dispute that the Legislature has legitimate interests in
both regulating medical procedures and in protecting the health and
wellbeing of children. Accordingly, we uphold the law if it is rationally
related to a legitimate government interest. See Owens Corning, 997
S.W.2d at 580; Barshop, 925 S.W.2d at 633.
Notwithstanding this Court’s or the trial court’s views, the
Legislature had a rational basis for concluding that the risk of providing
these treatments to children solely for the purpose of physically
transitioning from their sex at birth was not outweighed by the benefits.
Plaintiffs respond that the prohibition based on the Legislature’s
perceived risk of harm to children is pretextual because the exceptions
permit these same treatments for other medical conditions. But the
decision to prohibit particular medical procedures for a certain condition
is based on a balance between both risks and benefits of the treatment
in contrast to other treatments for the same underlying condition. The
Legislature could rationally reach different conclusions on the balance
of risks and benefits when physical treatments are used to treat a purely
physical condition (such as precocious puberty) as opposed to a condition
like gender dysphoria, for which other treatment options exist. Indeed,
policymakers in many other states, as well as other nations, have made
similar judgments.
Plaintiffs also cite the statute’s legislative history, focusing on
statements by lawmakers that, they contend, demonstrate that the
statute’s enactment was motivated by a “desire to harm transgender
27
adolescents.”16 The State rejects this characterization of the statements,
but we need not decide which interpretation is correct. Even if we
assume the legislative history demonstrates someone voting for this bill
may have been improperly motivated, that constitutes no evidence that
all, most, or even a significant percentage of the over 100 legislators who
voted for the statute were similarly motivated. See Tex. Health
Presbyterian Hosp. v. D.A., 569 S.W.3d 126, 136–37 (Tex. 2018) (“An
individual legislator’s statements—even those of the bill’s author or
sponsor—do not and cannot describe the understandings, intentions, or
motives of the many other legislators who vote in favor of a bill.”).
B. Does the statute unconstitutionally infringe on
physicians’ property rights or medical providers’
occupational freedom?
The trial court also concluded that S.B. 14 likely violates the Due
Course of Law Clause “by infringing upon Texas physicians’ right of
occupational freedom.” The court went on to say that the statute
“deprives Texas physicians of a vested property interest in their medical
licenses”; that it “interferes with the professional relationship among
medical providers, adolescent patients, and the patients’ parents”; and
that the statute is “clearly arbitrary and its effect as a whole is so
unreasonably burdensome that it is oppressive.”
16 The specific statements plaintiffs identify in their pleadings are
(1) one senator’s depictions of gender dysphoria as a “social contagion” and a
“mental delusion” and (2) one representative’s reference to the medical
treatment of gender dysphoria as “harmful experimentation” and comparing it
to the opioid epidemic and the use of lobotomies to treat schizophrenia or
depression.
28
1. Applicable law
Again, the first step in our inquiry under the Due Course of Law
Clause is to carefully define the interest of which these plaintiffs are
allegedly being deprived. Villarreal, 620 S.W.3d at 905. If the plaintiffs
are not deprived of a constitutionally protected interest, the statute is
constitutional so long as it is rationally related to a legitimate state
purpose. Barshop, 925 S.W.2d at 633.
In Patel v. Texas Department of Licensing & Regulation, this
Court held that an as-applied challenge to an economic regulation
statute based on the Due Course of Law Clause “must demonstrate that
either (1) the statute’s purpose could not arguably be rationally related
to a legitimate governmental interest; or (2) when considered as a whole,
the statute’s actual, real-world effect as applied to the challenging party
could not arguably be rationally related to, or is so burdensome as to be
oppressive in light of, the governmental interest.” 469 S.W.3d at 87.
But, as with parental rights, a person’s protected work-related interests
“are not without limits.” Crown Distrib., 647 S.W.3d at 654. We
underscored the point in Crown Distributing: “[n]either ‘property rights
nor contract rights are absolute.’” Id. (quoting Nebbia v. New York, 291
U.S. 502, 523 (1934)).
2. Analysis
We conclude the physicians and healthcare providers failed to
establish a probable right to relief on their claims under the Due Course
of Law Clause. As with plaintiffs’ arguments regarding parental rights,
the arguments on behalf of these plaintiffs incorrectly characterize the
29
scope of the constitutionally protected interest of which the statute
allegedly deprives them.
Plaintiffs argue that Texas physicians have a vested property
interest in their medical licenses and that, under S.B. 14, those licenses
“shall” be revoked if they provide prohibited medical care to children.
See TEX. OCC. CODE § 164.0552(a). Plaintiffs therefore urge that the
statute must be subject to strict scrutiny. We disagree. To the extent
that a license to practice medicine can be construed as a property
interest, that interest is subject to regulation and not absolute. Our
Constitution expressly authorizes the Legislature to “pass laws
prescribing the qualifications of practitioners of medicine.” TEX. CONST.
art. XVI, § 31. In accordance with that constitutional mandate, the
Legislature enacted the Medical Practice Act, expressly finding that “the
practice of medicine is a privilege and not a natural right of individuals”
and that legislative regulation of that privilege and its subsequent use
and control “is necessary to protect the public interest.” TEX. OCC. CODE
§ 151.003(1). That authorization necessarily includes the ability to
prohibit certain practices altogether.
In short, a medical license does not confer on physicians a right
to practice medicine in any way they see fit. To the extent that the
State’s granting a medical license creates a protected property interest,
that interest does not extend to practices that the State has determined
to be unlawful. In other words, Texas physicians have no
constitutionally protected interest to perform medical practices that the
Legislature has rationally determined to be illegal.
30
Plaintiffs rely on House of Tobacco, Inc. v. Calvert, in which we
described a permit authorizing the sale of tobacco products as a
“privilege which does not have to be granted; however, once it is granted,
it cannot be taken away except for good cause.” 394 S.W.2d 654, 657
(Tex. 1965). We therefore held that the State Comptroller’s order
revoking the permit was void because the permit holder was first
entitled to notice and a hearing under the Due Course of Law Clause.
Id. at 658. But we have never held that the granting of a medical license,
or any license, gives the holder a substantive property right to engage
in conduct without limitation by the Legislature.
Plaintiffs cannot show that the statute unconstitutionally
infringes on a protected property interest. And plaintiffs have not
alleged that the procedural protections required to revoke a medical
license, including notice and an opportunity to be heard, see TEX. OCC.
CODE § 164.004, the physician’s right to administrative review, see id.
§ 164.007, and the physician’s right to judicial review, see id. § 164.009,
are constitutionally inadequate. We therefore reject plaintiffs’ Due
Course of Law Clause claim with respect to physicians’ medical licenses.
Plaintiffs next argue that S.B. 14 unconstitutionally infringes on
medical providers’ liberty interest “to engage in their occupations.” They
contend that the threat of license revocation and discipline for engaging
in practices prohibited by the Legislature is “clearly arbitrary and so
unreasonably burdensome that it is oppressive.” See Patel, 469 S.W.3d
at 87 (holding that an economic-regulation statute violates the Due
Course of Law Clause as applied to the challenging party if its effect as
a whole is so unreasonably burdensome that it becomes oppressive in
31
relation to the underlying governmental interest). We need not decide
whether the standard we announced in Patel applies here because
plaintiffs cannot show that this statute, or any statute that limits
particular medical treatments for children, imposes an unreasonable
burden on physicians’ ability to practice medicine. The statute does not
prevent medical providers from treating children with gender dysphoria
with treatments other than those that are prohibited, nor does it
prohibit them from providing those medical procedures to adults.
C. Does the statute unconstitutionally deny or abridge
equality under the law?
Finally, the trial court concluded that S.B. 14 likely violates
Article I, Sections 3 and 3a “by discriminating against transgender
adolescents with gender dysphoria because of their sex, sex stereotypes,
and transgender status.”
1. Applicable law
Article I, Section 3 of the Texas Constitution provides the
following guarantee of equal rights: “All freemen, when they form a
social compact, have equal rights, and no man, or set of men, is entitled
to exclusive separate public emoluments, or privileges, but in
consideration of public services.” TEX. CONST. art. I, § 3. We have
typically referred to Section 3 as our Constitution’s “equal protection”
clause. See Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 n.4
(Tex. 2002). In 1972, Texans adopted the Equal Rights Amendment,
which states, “Equality under the law shall not be denied or abridged
because of sex, race, color, creed, or national origin.” TEX. CONST. art. I,
§ 3a. For convenience, we will refer to these two provisions jointly as
the Equal Rights Clauses.
32
We evaluate alleged violations of the Equal Rights Clauses in
three steps. Bell, 95 S.W.3d at 257 (citing In re McLean, 725 S.W.2d
696, 697 (Tex. 1987) (plurality op.)). First, we examine whether
“equality under the law” has been denied. Id. If it has, then we
determine whether equality was denied because of a person’s
membership in a protected class of sex, race, color, creed, or national
origin. Id. (citing McLean, 725 S.W.2d at 697). If we conclude that
equality was denied because of a person’s membership in a protected
class, the challenged action cannot stand unless it is narrowly tailored
to serve a compelling governmental interest. Id. (citing McLean, 725
S.W.2d at 698).
We have applied this framework in an analogous case, Bell.
There, we concluded that the State’s restrictions on abortion funding did
not deny equality “because of” sex, even though only women could
become pregnant. Id. at 263–64. We distinguished the “overt
gender-based distinction” of a statute we held unconstitutional in
McLean, which imposed different burdens on fathers and mothers
seeking the same relief. Bell, 95 S.W.3d at 258; see McLean, 725 S.W.2d
at 697. We reasoned that the restriction in Bell was directed at abortion
as a medical treatment, and we held that the funding scheme was not
“merely a pretext designed to prefer males over females in the provision
of health care.” 95 S.W.3d at 258.
2. Analysis
We conclude that S.B. 14 does not deny or abridge “[e]quality
under the law” because of plaintiffs’ membership in any protected class.
See TEX. CONST. art. I, § 3a; Bell, 95 S.W.3d at 257. Plaintiffs argue that
33
the statute discriminates against them because of sex, a protected class
under the Equal Rights Clauses. They contend the statute does so in
two ways: (1) it facially discriminates by denying certain medical
treatments based on whether the intended recipient is male or female;
and (2) it discriminates against transgender people, which plaintiffs
contend “is necessarily sex discrimination.”
With respect to plaintiffs’ first argument, under the statute, no
person is “treated differently from others similarly situated” based on
their sex. See Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1,
13 (Tex. 2015) (quoting Tex. Dep’t of Transp. v. City of Sunset Valley, 146
S.W.3d 637, 647 (Tex. 2004)). The statute treats both males and females
receiving treatment for gender dysphoria the same by prohibiting
medical providers from prescribing or supplying cross-sex hormone
therapy or other treatments that conflict with the child’s sex at birth.
Recent decisions from the Sixth and Eleventh Circuits are in accord. See
Skrmetti, 83 F.4th at 480 (“Such an across-the-board regulation lacks
any of the hallmarks of sex discrimination. It does not prefer one sex
over the other.”); Eknes-Tucker, 80 F.4th at 1228 (concluding that
Alabama’s statute “refers to sex only because the medical procedures
that it regulates . . . are themselves sex-based” and therefore it “does not
establish an unequal regime for males and females”). The mere fact that
the statute identifies hormones that are prohibited for males and others
that are prohibited for females does not deny or abridge equal treatment
because of sex. We rejected a similar argument in Bell, concluding that
a statutory restriction on funding for abortion as a medical treatment
34
did not prefer males over females in the provision of health care, even
though only females can get pregnant. 95 S.W.3d at 258.
Plaintiffs also argue that the statute discriminates against
“transgender people” because it prohibits certain medical treatments
only if those treatments are intended to transition a patient from one
sex to another. Although they acknowledge that “transgender status” is
not one of the protected classes enumerated in the Constitution, they
argue that it “is necessarily sex discrimination.” Plaintiffs primarily
rely on Bostock v. Clayton County, in which the U.S. Supreme Court held
that firing an employee for being transgender violates Title VII’s
statutory prohibition against “discriminat[ing] . . . because of such
individual’s . . . sex.” 590 U.S. 644, 655, 662 (2020) (quoting 42 U.S.C.
§ 2000e-2(a)(1)). But the Supreme Court’s interpretation of Title VII,
which focuses on but-for discriminatory acts by individual employers,
does not apply to the Texas Constitution’s textually distinct guarantee
that “[e]quality under the law shall not be denied or abridged because of
sex.” TEX. CONST. art. I, § 3a. As noted above, the prohibitions in S.B. 14
do not treat any person differently from those in a similar situation
because of that person’s sex. See Klumb, 458 S.W.3d at 13; Bell, 95
S.W.3d at 258.
Finally, plaintiffs argue that S.B. 14 “categorizes on the basis of
an inherently suspect characteristic” and therefore should be subject to
strict scrutiny under Article I, Section 3. See First Am. Title Ins. Co. v.
Combs, 258 S.W.3d 627, 639 (Tex. 2008) (quoting Nordlinger v. Hahn,
505 U.S. 1, 10 (1992)). But this Court has previously concluded that
Section 3a “is more extensive and provides more specific protection
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than” Section 3. McLean, 725 S.W.2d at 698. Since the Equal Rights
Amendment’s adoption in 1972, this Court has never expanded the
Equal Rights Clauses’ protection to classifications that fall outside those
enumerated in Section 3a. We decline plaintiffs’ invitation to create a
new protected class beyond those Texas voters have adopted. See In re
J.C., 594 S.W.3d 466, 477 (Tex. App.—Fort Worth 2019, no pet.)
(“[R]espect for the separation of powers should make courts reluctant to
establish new suspect classes.” (internal quotation marks omitted)
(quoting Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996))).17
17 A divided Fourth Circuit, sitting en banc, recently concluded that
state healthcare plans in North Carolina and West Virginia that excluded
coverage for surgeries designed to treat gender dysphoria were subject to
heightened (intermediate) scrutiny and were unconstitutional under the Equal
Protection Clause of the Fourteenth Amendment. Kadel v. Folwell, 100 F.4th
122, 155–56, 156–57 (4th Cir. 2024) (en banc). Kadel’s reasoning is
inapplicable here. The majority concluded that the states’ restriction on
surgeries to treat gender dysphoria necessarily discriminated based on sex or
gender identity because “only transgender people would get” those surgeries.
Id. at 148. This is contrary to Bell, in which we held that a restriction directed
at a particular medical condition—pregnancy—that affected only women did
not, for that reason, implicate our Equal Rights Clauses. Bell, 95 S.W.3d at
258; see also Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974) (“Absent a
showing that distinctions involving pregnancy are mere pretexts designed to
effect an invidious discrimination against the members of one sex or the other,
lawmakers are constitutionally free to include or exclude pregnancy from the
coverage of legislation . . . on any reasonable basis . . . .”).
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IV. Conclusion
Plaintiffs failed to establish a probable right to relief on any of
their three asserted constitutional violations. We therefore reverse and
vacate the trial court’s Temporary Injunction Order.
Rebeca A. Huddle
Justice
OPINION DELIVERED: June 28, 2024
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