State bans on gender-affirming care for transgender minors are unconstitutional | Opinion

The laws in Texas and more than a dozen other states which ban gender-affirming care for transgender minors are stunning in their cruelty and are clearly unconstitutional, as infringing on the rights of parents to control the upbringing of their children. They also interfere with the right to receive needed medical treatment.

On Aug. 31, the Texas Supreme Court allowed a law to go into effect that is a near total ban on gender-affirming care for minors, including prohibiting them from receiving treatment common for gender dysphoria (the medical term for a person’s conflict between an assigned gender at birth and the gender the person identifies with). Treatments include puberty blockers and hormone therapy. Except for abortion, it is difficult to think of another instance in which state governments have banned the use of prescription drugs approved by the Food and Drug Administration.

As with laws forbidding medication to induce abortions, the statutes in Texas and other states are entirely about conservative politics and not at all about health and science. Major medical associations, such as the American Academy of Pediatrics and the American Medical Association, have concluded that gender-affirming care is medically appropriate and necessary.

Opinion

Gender dysphoria is a medical condition that has approved protocols for appropriate treatment. It is estimated that more than one-third of transgender high school students attempt suicide in a given year. Whether to use the treatments should be for minors and their parents to decide. It is sadly ironic that conservatives who have embraced “parental choice” as their mantra for education refuse to acknowledge it in this case.

Indeed, the Supreme Court has been clear for a century that parents have a fundamental right to make crucial decisions concerning their children. In Meyer v. Nebraska, in 1923, the Supreme Court declared a state law prohibiting teaching of the German language unconstitutional.

“Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life,” the court ruled. Two years later, in Pierce v. Society of Sisters, the court declared an Oregon law that prohibited religious school education unconstitutional, speaking of “the liberty of parents and guardians to direct the upbringing and education of children under their control” in its ruling.

In subsequent cases, the court has ruled in favor of the right of Amish parents to exempt children from compulsory schooling laws and against allowing a court to grant grandparent visitation over a parent’s objections. The court has repeatedly reaffirmed the right of parents to make crucial decisions concerning their children.

The right of parents, of course, is not absolute. States can prevent parents from abusing or neglecting their children, and, if needed, terminate parental rights. But no such compelling interest exists to prevent parents and children the right to decide whether to receive gender-affirming treatment. The unconstitutionality of these laws is further magnified because the states are interfering with the right of access to necessary medical care. These laws deny treatment that a patient, their parents and a doctor deem appropriate.

Legislators say that they are adopting these laws to protect children from the harms of gender-affirming care. Of course, parents who believe that the dangers of treatment outweigh the benefits can decide not to provide it to their transgender children. But it is wrong and unconstitutional for the legislature to decide that no children can have medical care that health care professionals say is appropriate and will save lives.

All of this should make the fate of these laws as a legal matter, obvious. Federal district courts have consistently blocked such bans in states including Alabama, Florida and Kentucky. These cases are now on appeal. If it is just a question of constitutional law, the outcome of the litigation should be clear. But the political moment makes the resolution in the courts less certain. Conservatives, looking for something to rally their base, have targeted transgender individuals. I worry whether conservative judges will see the issue through the same partisan lens.

The decision of the entirely Republican Texas Supreme Court to allow the Texas law to go into effect could be a harbinger of how other conservative judges rule.

This is a time when humanity, justice and the law should come to the same conclusion. We can only hope that the judge will see it that way too.

Erwin Chemerinsky is the dean and a professor at the UC Berkeley School of Law.