Texas Judge Takes a Flame-Thrower of Reason to the Transing Kids Debate

Justice James D. Blacklock’s indefectible concurring opinion in the Texas Supreme Court ruling last week turns the house of cards that is the gender weltanschauung into a pile of ash.

Justice James D. Blacklock:

“I will do no harm or injustice.” The Hippocratic Oath, ca. 400 B.C.

This case arises from irreconcilably conflicting visions of what it means for doctors to do “harm or injustice” to children experiencing confusion and distress about the normal biological development of their bodies. The first vision—call it the Traditional Vision—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. Proceeding from these moral and philosophical premises, the Traditional Vision naturally holds that medicinal or surgical interference with a child’s developing capacity for normal, healthy sexual reproduction is manifestly harmful to the child, an obvious injustice unworthy of the high label “medicine.” The Traditional Vision further holds that adolescent children who feel out of place in their physically healthy, normally developing bodies should receive mental health care that seeks to accommodate their feelings to the biological reality of their bodies, which are unavoidable and irreplaceable components of who they truly are.

The second vision—call it 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. Based on these moral and philosophical premises, the Transgender Vision holds that an adolescent child who feels out of place in a biologically normal body should in many cases take puberty-blocking drugs designed to retard or prevent the emergence of sexual characteristics out of line with the child’s gender identity. Ultimately, the Transgender Vision holds that a person’s body can be, and in many cases should be, conformed to the person’s gender identity—using hormone therapy and even the surgical removal of healthy sexual organs—in pursuit of the person’s mental health.

These competing visions of the human person diverge at the most basic level. The divergence is unbridgeable. We can talk about it in terms of empirical debates over the efficacy or side-effects of the disputed treatments, but the core of the matter is a deep conflict over human nature. In the end, the disagreement is one of philosophy, morality, even religion. 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. In some ways, the answers to the medical questions are derivative of the answers to the deeper questions. Thus, under the Traditional Vision, the disputed treatments are self-evidently harmful to children, cannot rightly be called medical care, and should quite obviously be discouraged, by force of law if necessary. From within the Transgender Vision, however, these treatments are necessary medical care, the failure to provide them is a cruelty, and outlawing them is a grave injustice.

The heart of the dispute is moral and political, not scientific and medical. Doctors have no special expertise in answering moral and political questions. As the plaintiffs’ expert testimony demonstrates, doctors often adopt moral and political judgments of their own before they begin to answer the downstream scientific and medical questions. Doctors are surely useful sources of information to aid those tasked with answering moral and political questions about the human body, but doctors are not oracles in possession of special moral insight. Nor are judges the ideal place to look for answers to political questions.

Our Constitution tells us where to look. In the State of Texas, “[a]ll political power is inherent in the people.” TEX. CONST. art. I, § 2. This litigation asks whether the sovereign People of Texas have the power, through their representatives in the Legislature, 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. The answer is yes.

Until very recently in human history, the Traditional Vision was the only vision. The questions this case raises did not exist. They were hardly conceivable. Had they been asked, essentially everyone ever to live would have answered based on the Traditional Vision of human nature. Yet remarkably, despite its recent provenance, the Transgender Vision quickly captured the heights of the medical establishment, as well as many other places of power in our society—including universities, large corporations, and the media.

Consider the American Psychiatric Association’s definition of “gender dysphoria” as “the psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.” We have become accustomed in recent years to seeing such morally loaded verbiage presented as uncontroversial fact in what were once trusted sources of authority, like medical journals and newspapers. But from outside the Transgender Vision, neologisms like “sex assigned at birth” and “gender identity”—while intelligible as theoretical concepts—simply do not correspond to reality. Our ability to conceive of them, and even to believe in them, does not make these concepts real. From within the Traditional Vision, these concepts appear as myths believed by those who hold the Transgender Vision. The fervent belief (or social status) of the myth’s adherents does not make the myth true. Nor does the fervent belief or social status of the myth’s adherents require those who do not subscribe to the myth to exercise their political power in accordance with the myth’s premises.

Outside the Transgender Vision, our identity as men and women is a brute fact of our existence. Outside the Transgender Vision, our “gender identity,” to the extent such a thing exists, arises ineluctably from genetics and biology—not from feelings, choices, or psychiatric diagnoses. Outside the Transgender Vision, we are genetically male or female from the moment of conception, and our parents and doctors have no choice in the matter—so there is no such thing as “sex assigned at birth.” Outside the Transgender Vision, the notion that a physically healthy but psychologically troubled boy might actually be a girl in some real sense is nothing but a fantasy—except that this fantasy can be dangerous in real life because some doctors may act on it in ways that can permanently alter the boy’s healthy bodily functioning. Outside the Transgender Vision, just as men and women are “endowed by their Creator with certain unalienable Rights,” we are also endowed by our Creator with certain unalienable genetic traits, “male and female.” Outside the Transgender Vision, a law prohibiting doctors from altering a child’s healthy body in service of a misguided fantasy is perfectly reasonable, perhaps even so obviously right and just as to be unremarkable.

The plaintiffs accuse the Legislature of acting out of “anti-transgender animus”—which I take to mean irrational hostility or hatred of people who claim a transgender identity. Likely there are some holders of the Traditional Vision who bear ill-will against such people. This is regrettable. But just as likely there are holders of the Transgender Vision who bear ill-will against those who hold the Traditional Vision. This is equally regrettable. 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.

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The legal question before the Court is whether the Texas Constitution—whose relevant language was last ratified in 1876— enshrines a right to administer transgender treatments to children. “Our goal when interpreting the Texas Constitution is to give effect to the plain meaning of the text as it was understood by those who ratified it.” In re Abbott, 628 S.W.3d 288, 293 (Tex. 2021). From a constitutional perspective—a perspective focused on the original meaning of a nineteenth-century legal document—we should begin by noting that the Transgender Vision would have been utterly inconceivable to those who wrote and ratified our Constitution. Would Texans in 1876 have understood the Constitution they ratified to enshrine the right asserted by the plaintiffs? To ask this question is to answer it.

As the plaintiffs rightly point out, however, Texans in 1876 would have taken a very strong view of the traditional right of parents to direct the upbringing of their children, including with respect to medical care. For this reason, we have long recognized the “fundamental nature of the parental right to make child-rearing decisions,” In re D.T., 625 S.W.3d 62, 69 (Tex. 2021), and we have adopted a strong presumption that a parent “acts in the best interest of his or her child.” In re C.J.C., 603 S.W.3d 804, 808 (Tex. 2020). But the plaintiffs point to no time in Texas history—and to no aspect of Texas’s legal traditions—in which the Legislature was thought to be powerless to outlaw a practice it considers to be severe child endangerment masquerading as medical care.

The plaintiffs and their doctors hold a robust version of the Transgender Vision. They take it for granted that judges will assume the legitimacy of that vision when analyzing their claims—as have the lower court and the dissenting Justice. But in order for their claims to succeed, the plaintiffs must show that the Texas Constitution requires the Legislature to assume the legitimacy of the Transgender Vision when it approaches these questions. If it does not—if the Constitution permits the Legislature to proceed from the Traditional Vision—then this case is very simple. Viewed from inside the Traditional Vision, what the Legislature has done is unquestionably within its constitutional power to regulate medicine. See TEX. CONST. art. XVI, § 31. Viewed from inside the Traditional Vision, the Legislature has prohibited doctors from disrupting and destroying children’s healthy bodies on the basis of a dangerous and thoroughly misguided ideological fad with no roots in our society’s history or traditions. From within the Traditional Vision, this law passes the constitutional test by any measure—no matter which “tier of scrutiny” the courts apply. Only from outside the Traditional Vision—from deeply within the Transgender Vision—do the plaintiffs’ contentions about the law’s irrationality or the State’s lack of a compelling interest have any force at all.

All involved agree that our society must draw a line somewhere between parental autonomy and child endangerment. The question before the Legislature was this: Does using the disputed treatments on children in service of the Transgender Vision fall on the parental autonomy side of the line or the child endangerment side of the line? The Texas Legislature in 2023 answered this question the same way the Texas Legislature in the 1870s (or the 1970s) would have answered it, had it arisen. Yet the plaintiffs’ argument is that the 1876 Texas Constitution implicitly prohibits the Texas Legislature from answering as it did—despite the historical reality that the asserted right would have been both inconceivable and, frankly, horrifying to nearly everyone at the time of ratification. Only by commandeering the Constitution in service of the Transgender Vision, a moral vision that has never once— from 1836 to 2024—obtained the consent of the People of Texas, could any court give the plaintiffs what they seek. This Court is not in the business of “interpreting” the Constitution that way.

Like the legislative branch, the judicial branch is not obligated to adopt the Transgender Vision when it approaches these questions. In fact, if our constitutional heritage reflects one moral vision or the other, it is most certainly the Traditional Vision, the vision held by all those from whom we inherited the Texas Constitution.

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Like the Court, I do not understand our decision today to authorize the government to interfere with parental authority in areas the law traditionally leaves to parents. Whether to use drugs or surgery to disrupt or destroy the normal biological functioning of a child is not one of those areas. On the other hand, whether to use drugs or surgery to preserve or restore the normal biological functioning of a child is an area in which our legal traditions have long recognized a wide degree of parental autonomy.

This distinction—between treatments that seek to disrupt or destroy a person’s normal biological functions, and treatments that seek to preserve or restore a person’s normal biological functions—goes to the heart of an important question lurking in the background of this case: What is medicine? Is it just anything a doctor does for a patient? Or does genuine medicine have a telos—a goal, a purpose? By calling the disputed treatments “medical care” without asking what “medical care” is and is not, we may be adopting a premise of the Transgender Vision without meaning to do so.

The Legislature’s constitutional power to regulate “practitioners of medicine,” see TEX. CONST. art. XVI, § 31, must include a power to distinguish between treatments that are genuinely “medicine” and those that are not. In this realm, the Legislature may reasonably take the traditional view that medicine, rightly understood, is ordered toward the preservation or restoration of the normal, healthy bodily functioning of the human being.13 If that is what medicine is, then the disputed treatments are not medicine at all. They may be services offered to patients by doctors, but because their purpose is to disrupt or destroy the patient’s normal, healthy bodily functioning, they are different in kind from genuine medical care.

The text of the challenged legislation indicates that the Legislature had this distinction in view. The statute’s ban on puberty-blocking drugs and other hormone therapy for children is not absolute. Instead, the ban targets the purpose for which the drugs are used. They may not be used “[f]or the purpose of transitioning a child’s biological sex” or for the purpose of “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. Using the drugs for these prohibited purposes disrupts or destroys normal, healthy, biological functioning, rather than promoting or restoring it. On the other hand, the law permits the drugs to be used “for the purpose of normalizing puberty for a minor experiencing precocious puberty.” Id. § 161.703(a)(1). They may also be used on a child “born with a medically verifiable genetic disorder of sex development” or a child who “does not have the normal sex chromosome structure for male or female.” Id. § 161.703(a)(2)(A), (B).

Thus, when the purpose of the drugs is to bring the bodies of children with biological abnormalities more into line with normal human sexual development, the drugs are legal. But when the purpose of the drugs is to disrupt or destroy normal human sexual development, the drugs are illegal. In the Legislature’s judgment, one of these is legitimate medical care, and the other is not. This is a moral and political judgment. It is informed by science and medicine, but it is not controlled by scientists and doctors. The fact that expert witnesses or influential interest groups like the American Psychiatric Association disagree with the Legislature’s judgment is entirely irrelevant to the constitutional question. The Texas Constitution authorizes the Legislature to regulate “practitioners of medicine.” TEX. CONST. art. XVI, § 31. It does not authorize practitioners of medicine to regulate the Legislature—no matter how many expert witnesses they bring to bear. A legitimate distinction exists between treatments that seek to promote normal biological functioning in the patient and those that seek to destroy it. The Legislature was entitled to notice this distinction and to act upon it, as it has done.

We therefore need not hold that the Legislature could prevent a parent from seeking conventional medical care for a child in order to hold that the disputed treatments, which serve a purpose at odds with conventional medicine, are different in kind from genuine medical care and may therefore be removed from the realm of parental autonomy without threatening parents’ traditional authority to make medical decisions for their children. I join the Court’s opinion because nothing in it is inconsistent with this analysis.

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Another way to approach this case would be to ask whether the Texas Constitution grants parents the right to choose for themselves whether to raise their children in accordance with the Traditional Vision or the Transgender Vision. If the question were simply whether the Constitution protects the right of parents to teach their children to follow one viewpoint or another on questions of morality and human nature, the answer would be simple. Of course it does. See, e.g., TEX. CONST. art. I, § 8 (“[N]o law shall ever be passed curtailing the liberty of speech . . . .”); id. art. I, § 6 (“No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion . . . .”).

The matter at hand, however, is not the liberty to hold viewpoints or beliefs, but the liberty to act upon a child’s body on the basis of those viewpoints or beliefs. The plaintiffs and their doctors do not invoke their freedom of religion. They claim that the Transgender Vision is an established matter of science, not a matter of belief. Of course, from the perspective of the Traditional Vision, any such assertion is an incoherent conflation of speculative philosophy and empirical science. Neither a philosophical proposition (“gender identity is real”) nor a moral rule (“gender identity should be affirmed”) can be proven with the scientific method or the tools of medicine. Indeed, from within the Traditional Vision, the Transgender Vision has many characteristics not of a science, but of a religion.

Had the plaintiffs asserted a religious right to the disputed treatments, their claim that the Texas Constitution protects their desired course of action would have been at its strongest. The freedom of religion often entails the freedom not just to believe, but to act upon one’s beliefs—even, sometimes, in ways that could harm others. See, e.g., TEX. CONST. art. I, § 6-a (protecting an absolute right to gather in person for worship, no matter what government epidemiologists think). But even if couched as a matter of religion, I do not think the right claimed in this case finds protection in our Constitution. Across history, many religious traditions have demanded that their adherents inflict permanent, physical harm on children. Our constitutional guarantee of religious freedom, robust as it is, has never been understood to protect treatment of children that would have been thought barbaric at the time of the founding.

In recent history, for example, immigrants from parts of Africa and the Middle East claimed a religious obligation to surgically remove portions of a young girl’s sexual organs. The practice, known as “female genital mutilation,” was banned by federal law in 1996, and again in 2021. 18 U.S.C. § 116. States, including Texas, have similar bans. E.g., TEX. HEALTH & SAFETY CODE § 167.001. To my knowledge, none of these bans has been invalidated on religious liberty grounds. Yet adherents to this practice genuinely believe they are doing the right thing for the children they love. The same can surely be said of parents seeking transgender treatments for their child, who unquestionably act out of love and conviction. Viewed from the Traditional Vision, however, the two practices are not altogether dissimilar. Both disrupt the normal sexual development of a child’s body in service of a vision of human nature that is altogether foreign to our society’s moral traditions.

Thus far, the consensus has been that childhood female genital mutilation can be outlawed, despite the heartfelt religious objections of its politically powerless adherents. If we judges were to say that childhood transgender treatments cannot be outlawed because of ideological objections from politically powerful places like the American Psychiatric Association, then what would really be doing the work? It would certainly not be the text or history of the Constitution. It would instead be yet another example of willful judges elevating fashionable elite opinion on a disputed moral question to the status of constitutional law, while imperiously consigning unfashionable opinion to the so-called dustbin of history. See Obergefell v. Hodges, 576 U.S. 644, 718 (2015) (Scalia, J., dissenting) (bemoaning judicially orchestrated “social transformation without representation”).

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The plaintiffs rely primarily on the Due Course of Law Clause of the Texas Constitution. In describing the federal constitution’s somewhat analogous Due Process Clause, the U.S. Supreme Court has remarked that the Clause “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (citations and internal quotation marks omitted). Under Glucksberg, those who claim a substantive right under the Due Process Clause must first establish, among other things, that the right is “objectively, deeply rooted in this Nation’s history and tradition.” Id. I agree with the Court that, to the extent our Due Course of Law Clause provides any protection for substantive rights, it would only do so for “careful[ly] descri[bed]” rights that satisfy Glucksberg’s requirements. Id. at 721; ante at 21.

As the Court correctly concludes, the rights claimed in this case fail Glucksberg’s test because, among other reasons, the right to administer the disputed treatments to children is not “objectively, deeply rooted in this Nation’s history and tradition.” As the Court acknowledges, however, other assertions of parental authority might very well satisfy the Glucksberg standard. Circumcision of baby boys, for instance, is a common practice with roots in our history and traditions. Thus, under Glucksberg’s approach, the Constitution might very well treat legislative efforts to ban circumcision quite differently from legislative attempts to ban novel practices that our society has not historically considered to be within the broad realm of parental authority. For the same reason, the Constitution would likely treat the government’s attempt to impose childhood transgender treatments on unwilling families much differently from the government’s efforts to prohibit those treatments.

A parental right to use drugs or surgery to disrupt or destroy a child’s normal biological functions is not “objectively, deeply rooted in this Nation’s history and tradition.” By contrast, whether and how to use drugs or surgery to preserve or restore a child’s normal biological functions is a question long committed to a significant degree of parental autonomy in our society. By denying constitutional protection to the former, the Court does not hold that the Constitution has nothing to say about the latter.

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The Texas Legislature has the power, under our Constitution, to uphold the Traditional Vision of human nature, to express our society’s collective moral judgment about the disputed treatments, and to protect children as it has done. I therefore respectfully concur and join the Court’s opinion.

James D. Blacklock Justice

OPINION FILED: June 28, 2024

Read Justice Blacklock’s 22-page concurring opinion in full here, complete with blazing red-hot footnotes: https://www.txcourts.gov/media/1458814/230697c1.pdf

Enjoy & SHARE A Legal Process’s Substack essay on the justice’s opinion here:

Texas Parents, Dr Frankenstein Advocates: Parental Rights Include Right to Surgically Remove Child Sex Organs and Chemically Retard Sexual Development

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