State v. Loe

692 S.W.3d 215

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

No. 23-0697

Supreme Court of Texas.

Argued January 30, 2024

OPINION DELIVERED: June 28, 2024

West Codenotes

Negative Treatment Reconsidered

Tex. Health & Safety Code Ann. §§ 62.151, 161.701, 161.702, 161.703, 161.704, 161.705, 161.706; Tex. Hum. Res. Code Ann. § 32.024; Tex. Occ. Code Ann. §§ 164.052, 164.0552

On Direct Appeal from the 201st District Court, Travis County, Texas

Jill Carvalho, Austin, Christopher Mills, for Amicus Curiae Family Research Council.

Joseph Mazzara, for Appellants Texas Health and Human Services Commission, Texas Medical Board, Office of the Attorney General of the State of Texas.

Marcella Burke, Houston, for Amicus Curiae Do No Harm.

Kennon L. Wooten, Austin, Allissa Aileen Pollard, Houston, Chloe Kempf, Dale Melchert, Lynly Egyes, Lauren Ditty, Omar Gonzalez-Pagan, Lori B. Leskin, Elizabeth Gill, Paul Castillo, Shawn Thomas Meerkamper, Sasha J. Buchert, Adriana Pinon, Brian Klosterboer, Karen L. Loewy, Harper Seldin, Milo Inglehart, for Appellee Loe, Lazaro.

Brent Webster, James Lloyd, Houston, Charles K. Eldred, Angela V. Colmenero, Austin, S. Grant Dorfman, Bellaire, Ryan Kercher, Lanora C. Pettit, Johnathan D. Stone, Kimberly Gdula, Heather Dyer, Joseph Mazzara, for Appellant State of Texas.

Jacob P. Warner, Ryan L. Bangert, John J. Bursch, for Amicus Curiae Alliance Defending Freedom.

Andrew Brown, Austin, Robert E. Henneke, Kerrville, Christian Townsend, Chance D. Weldon, for Amicus Curiae Texas Public Policy Foundation.

Chris L. Branson, Houston, for Amicus Curiae Family Freedom Project.

Colleen McKnight, Marcella Burke, Houston, for Amicus Curiae Ethics and Public Policy Center.

Bethany Rothwell, Nicholas J. Bronni, A. Barrett Bowdre, Dylan L. Jacobs, for Amicus Curiae Alabama, Arkansas, and 20 Other States (Multistate Amicus).

Charles (Chad) E. Baruch, Robert L. Tobey, Dallas, for Amicus Curiae Conservative Legislators, Former Legislators, and Activists.

David S. Coale, Dallas, Kyle Gardner, D. Jean Veta, William R. Isasi, Cortlin H. Lannin, Noah S. Goldberg, for Amicus Curiae American Academy of Pediatrics, et al.

Jonathan M. Saenz, for Amicus Curiae Texas Values and Family Policy Alliance.

Michael S. Truesdale, Austin, Katelyn Kang, Kathleen Hartnett, Elizabeth Reinhardt, Zoe Helstrom, for Amicus Curiae Biomedical Ethics and Public Health Scholars.

Jerad W. Najvar, Houston, for Amicus Curiae Kirkpatrick, Katherin.

Emily K. Cook, for Amicus Curiae Pacific Justice Institute.

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.

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 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 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 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 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 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...