Supreme Court of Texas

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No. 23-0697

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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

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On Direct Appeal from the

201st District Court, Travis County, Texas

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JUSTICE LEHRMANN, dissenting.
2

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 
3

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 
4

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-binaryyouth-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).
5

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).
6

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 outcomedriven 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 
7

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.
8

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 
9

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 
10

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 
11

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 
12

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 GenderAffirming 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.
13

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. 
14

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.
15

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).

17 See Gordon Guyatt et al., GRADE guidelines: 1. Introduction—

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 
16

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.
17

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 
18

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).
19

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).
20

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, 
21

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 
22

(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 
23

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)).
24

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 . . . .”). 
25

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 
26

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 
27

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 
28

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 
29

“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 
30

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 
31

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.