Just days after the United States Supreme Court announced it would hear a challenge to a Tennessee law barring gender-affirming care for children, the Texas Supreme Court upheld a ban on such treatments under Texas state law. The decision in this case, Texas v. Loe, shows how the Supreme Court could reach the same result later this year.
Texas v. Loe reached the high court when the state appealed the trial court’s decision to temporarily block the statute after concluding it likely violated the Texas Constitution.
The Texas law prohibits certain medical treatments for minors when administered to transition the child to the opposite sex. These treatments include: (1) “a surgery that sterilizes the child”; (2) “a mastectomy”; and (3) removal of “any otherwise healthy or non-diseased body part or tissue.” The statute also prohibits puberty-blocking drugs and hormones when prescribed for medical transitioning. Doctors who violate the law risk losing their licenses.
A group of parents challenged the Texas ban. They claimed it violated their right to make medical decisions for their children and discriminated against them for being transgender.
But those parents were not alone in the lawsuit. And here, according to reports, is where the plot thickens. They were joined by a second set of plaintiffs: an alliance of doctors and drug-company-supported transgender activist organizations with big money at stake in its outcome.
Drs. Richard Ogden Roberts and David L. Paul, the two doctors at the heart of the Texas Children’s Hospital (TCH) secret sex-change scandal also challenged the law, claiming it infringed their right to practice medicine.
Based on recent revelations, however, their medical practices may already be in jeopardy. TCH reportedly reopened its gender clinic in defiance of the ban, and the two doctors allegedly committed Medicaid fraud to pay to keep it going, putting their medical licenses at risk under Texas law. Roberts is under investigation by Texas Attorney General Ken Paxton for his role in that fraud. And as of this writing, both doctors’ profiles have been scrubbed from the website of the Baylor College of Medicine, a TCH affiliate where they are listed as associate professors.
Keep in mind, transgender “care” creates patients for life, from which both doctors and big pharma benefit. And Roberts’ ties to the network of trans activists and drug companies who profit from their plight run deep, as reported in The Daily Wire:
These newly revealed sordid details involving the TCH gender clinic scandal and the physicians behind it were not the issue before the court, however.
Rather, the case called on the justices to balance the rights of parents, children, and doctors against the state’s legitimate interests in both regulating medical procedures and protecting the health and wellbeing of children.
As the court put it, the parents were seeking to allow their children access to relatively new medical procedures and treatments for a relatively newly defined medical condition, gender dysphoria.
The court acknowledged that parents have the right to exercise control over their children, but there are limits to those rights. At times, they “give way to other competing interests such as the interest in protecting children from harm”:
[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 parents’] argument is particularly weak in the context of medical care, as the Legislature has express constitutional authority to regulate the practice of medicine. … [And] novel treatments for a novel condition are generally within the Legislature’s power to regulate without facing heightened scrutiny … [T]he 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.
The doctors fared no better. The court was underwhelmed by their claimed deprivation of constitutional rights:
[A] medical license does not confer on physicians a right to practice medicine in any way they see fit. … Texas physicians have no constitutionally protected interest to perform medical practices that the Legislature has rationally determined to be illegal.
The parents also claimed on behalf of their transgender children that the Texas ban discriminated against them “because of” their sex, sex stereotypes, and transgender status. The court disagreed:
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.
Nor does the law discriminate against “transgender people” the court concluded. It doesn’t treat any person differently from those in a similar situation “because of” that person’s sex, merely by virtue of prohibiting medical treatments only when used to transition a patient from one sex to another.
Now that the Texas Supreme Court has reversed the court below, Texas rejoins at least 20 other states with similar gender-affirming care bans. This fall, when the U.S. Supreme Court considers their fate, it doesn’t have to get caught up in the trans rights culture wars. The question of whether these laws are constitutional is, as the Texas court said, “a distinctly legal one.”
And Texas v. Loe answers it by upholding a valid law protecting vulnerable pediatric patients and their parents from self-serving doctors and activists whose interests are at odds with their own.
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