In an important ruling last Friday in Texas v. Loe, the Texas supreme court ruled by a vote of 8 to 1 that a Texas law that prohibits certain medical treatments for children with gender dysphoria does not violate the state constitution. Justice Rebeca Huddle wrote the majority opinion.
Here’s Justice Huddle’s summary of her ruling:
[W]e 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.
I’ll also highlight two noteworthy concurring opinions. Justice James Blacklock cogently explains that the “medical debates at issue in this litigation are merely the surface-level consequences of deep disagreement over the deepest of questions about who we are.” What he labels the Traditional Vision (and what might also be called the vision of objective reality)
holds that a boy is a boy, a girl is a girl, and neither feelings and desires nor drugs and surgery can change this immutable genetic truth, which binds us all. Within the Traditional Vision, human males and females do not “identify” as men and women. We are men and women, irreducibly and inescapably, no matter how we feel. [Emphasis in original.]
By contrast, the Transgender Vision
holds that we all have a “sex assigned at birth,” which usually corresponds to our physical traits but which may or may not correspond to our inwardly felt or outwardly expressed “gender identity.” It holds that a person’s gender identity is a constitutive part of his or her humanity and that when a person’s biological sex and gender identity diverge, often gender identity should be given priority.
As he discusses, the Texas constitution clearly allows the people of Texas “to answer moral and political questions about childhood transgender therapy in accordance with the Traditional Vision of what it means to be human, male and female.” Doing so should not be confused with “anti-transgender animus”:
Sincere disagreement on a disputed philosophical question about human nature does not entail hostility or hatred toward those who disagree. By and large, those who hold the Traditional Vision proceed from a sincere conviction that the Transgender Vision is, in the end, make-believe. They do not proceed from hatred or hostility toward anybody, and they need not abandon or conceal their sincere convictions to avoid nasty labels like “animus.” From their perspective, the Transgender Vision is much like other forms of make-believe. Perhaps it can be indulged to a degree, but a line must be drawn when it threatens physical harm to a child.
In another excellent concurrence, Justice Evan Young explores the scope of the “fundamental right of parents over the upbringing of their children.” It is essential, he explains, for the judiciary to define the contested parental right at the “proper level of specificity” and to remove such right from the ordinary political process only when there is an “objective, widespread, unbroken, and respected practice of the right.” (His emphasis.) The parental claim in this case fails because “there is no history or tradition that allows parents the sort of sweeping authority over all newly developed medical procedures that is demanded here.” Similarly, the “use of drugs or surgery to counteract a child’s normal biological development and function is not a course of conduct that our legal traditions have committed to the realm of parental discretion.”