The Traditional Vision

Justice Blacklock writes an IllAdvised Opinion

Supreme Court of Texas

══════════

No. 23-0697

══════════

State of Texas et al.,

Appellants,

v.

Lazaro Loe et al.,

Appellees

═══════════════════════════════════════

On Direct Appeal from the

201st District Court, Travis County, Texas

═══════════════════════════════════════

JUSTICE BLACKLOCK, joined by Justice Devine, concurring.

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

B.C.1

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

1 Michael North, Translation of the Hippocratic Oath, NATIONAL

LIBRARY OF MEDICINE (2002), https://www.nlm.nih.gov/hmd/topics/greekmedicine/

index.html (last visited June 26, 2024).

2

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

3

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.2

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,

2 Of course, science may demonstrate empirically that the childhood

gender-transition treatments that exist today—which have a very limited

track record—have harmful side-effects and do not deliver the mental-health

benefits their proponents promise. This seems already to be happening. See

infra note 5. But for those who hold the Transgender Vision, this scientific

development would not resolve the deep questions driving the debate. It would

instead drive an urgent search for new childhood gender-transition

treatments.

4

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.3

3 Some may balk at the suggestion that the Legislature answers moral

questions. But most laws of any consequence arise from a moral vision and

reflect the moral judgment of the lawmaker. Law cannot be separated from

moral judgment. “Law is related to morality inasmuch as justice is a moral

concept which is meaningless outside the area of morality.” Arthur Scheller

Jr., Law and Morality, 36 MARQ. L. REV. 319, 323 (1953). The question is not

whether the law will reflect a moral vision of justice. The question is whose

moral vision of justice the law will reflect.

Another question that should concern all of us is whether the moral

vision reflected in the law is a true vision or a false vision. In Thomas Carlyle’s

characteristically colorful words:

Needless to vote a false image true; vote it, revote it by

overwhelming majorities, by jubilant unanimities and

universalities; read it thrice or three hundred times, pass acts of

parliament upon it till the Statute-book can hold no more,—it

helps not a whit: the thing is not so, the thing is otherwise than

so; and Adam’s whole Posterity, voting daily on it till the world

finish, will not alter it a jot. Can the sublimest sanhedrin,

constitutional parliament, or other Collective Wisdom of the

5

* * *

Until very recently in human history, the Traditional Vision was

the only vision. The questions this case raises did not exist.4 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,5 as

world, persuade fire not to burn, sulphuric acid to be sweet milk,

or the Moon to become green cheese? The fact is much the

reverse.

THOMAS CARLYLE, Stump-Orator, in LATTER-DAY PAMPHLETS 146, 173

(London, Chapman & Hall 1850).

4 “The term ‘transgender’ is said to have been coined ‘in the early 1970s,’

and the term ‘gender identity,’ . . . apparently first appeared in an academic

article in 1964.” Bostock v. Clayton County, 590 U.S. 644, 715 (2020) (Alito, J.,

dissenting). “Transsexualism” was introduced in the American Psychiatric

Association’s Diagnostic and Statistical Manual of Mental Disorders in 1980

and was replaced in 1994 by “gender identity disorder.” AM. PSYCHIATRIC

ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 784–85

(4th ed. 1994). At the time, it was categorized under “sexual and gender

identity disorders.” Id. Only in 2013 did “gender dysphoria” replace “gender

identity disorder” in the official diagnostic manual. Gender Dysphoria

Diagnosis, AM. PSYCHIATRIC ASS’N, https://www.psychiatry.org/psychiatrists/

diversity/education/transgender-and-gender-nonconforming-patients/genderdysphoria-

diagnosis (last visited June 26, 2024).

5 By “medical establishment,” I mean the bureaucratic organizations

that present themselves to the world as the voices of official medical opinion.

These organizations almost universally adopt the Transgender Vision in their

public statements. See, e.g., APA adopts groundbreaking policy supporting

transgender, gender diverse, nonbinary individuals, AM. PSYCHOLOGICAL

ASS’N (Feb. 28, 2024), https://www.apa.org/news/press/releases/2024/02/policysupporting-

transgender-nonbinary; Attacks on Gender-Affirming and

Transgender Health Care, AM. COLL. OF PHYSICIANS (Apr. 24, 2023),

https://www.acponline.org/advocacy/state-health-policy/attacks-on-genderaffirming-

and-transgender-health-care; WMA Statement On Transgender

6

well as many other places of power in our society—including

universities, large corporations, and the media.6

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

People, WORLD MED. ASS’N (Mar. 26, 2024), https://www.wma.net/policiespost/

wma-statement-on-transgender-people/. How real-world doctors view the

subject is a far more complicated matter. See, e.g., Brief for Do No Harm as

Amicus Curiae Supporting Appellants, at 1 (“Do No Harm is a diverse group of

physicians, healthcare professionals, medical students, patients, and

policymakers whose goal is to protect healthcare from a radical, divisive, and

discriminatory ideology.”); Devon Kent et al., Assessing Comfort of Physicians

to Provide Transgender-Specific Care, 7 TRANSGENDER HEALTH 533, 537

(2022) (“[M]ost [Nevadan physicians] feel uncomfortable providing hormonal

treatment.”).

Any claim to “consensus” in the medical community—never a claim that

reflected reality—seems to be crumbling quickly, even on its own terms. As

the Court notes, many of the European countries that initially pioneered

transgender treatments for minors are rapidly pulling back. Ante at 3 n.2; see

also Azeen Ghorayshi, Youth Gender Medications Limited in England, Part of

Big Shift in Europe, N.Y. TIMES (Apr. 9, 2024), https://www.nytimes.com

/2024/04/09/health/europe-transgender-youth-hormone-treatments.html. The

Cass Review, a multi-year study commissioned by England’s National Health

Service—hardly a proponent of the Traditional Vision—recently cast serious

doubt on the advisability of puberty blockers and hormone therapies for

minors, even for those who hold the Transgender Vision. Perhaps most

notably, the Review concluded that “the evidence does not adequately support

the claim that gender-affirming treatment reduces suicide risk.”

INDEPENDENT REVIEW OF GENDER IDENTITY SERVICES FOR CHILDREN AND

YOUNG PEOPLE: FINAL REPORT 187 (chaired by Hilary Cass, 2024).

6 As on many other questions, the American people have not fallen

obediently in line with elite opinion. One recent survey found that only 19% of

Americans support “[a]llowing transgender youth access to puberty blockers,”

while 54% oppose it. Taylor Orth, Where Americans stand on 20 transgender

policy issues, YOUGOV (Feb. 16, 2024, 9:47 AM), https://today.yougov.

com/politics/articles/48685-where-americans-stand-on-20-transgender-policyissues.

7

identity.”7 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.8 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

7 What is Gender Dysphoria, AM. PSYCHIATRIC ASS’N,

https://www.psychiatry.org/patients-families/gender-dysphoria/what-isgender-

dysphoria (last visited June 26, 2024).

8 As recently as the 1980s, Webster’s had no entry for “gender identity,”

and the definition of “gender” was a single word: “sex.” See Gender, WEBSTER’S

NEW COLLEGIATE DICTIONARY (8th ed. 1981).

8

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.”9

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

9 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776);

Genesis 1:27.

9

“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.

* * *

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.10

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

10 On the other hand, would Texans in 1876 have understood either

their Constitution or their pre-existing legal traditions to protect them from a

government that tried to coerce parents, against their will, to allow

transgender therapy for their children? I suspect that to ask this question is

also to answer it.

10

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.11 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

11 See, e.g., Brief for Appellees, at 6 (“Gender identity refers to a person’s

core sense of belonging to a particular gender.”; “A person’s gender identity

does not always match the sex the person was assigned at birth.”; “People

whose gender identity aligns with their sex assigned at birth are

cisgender . . . .”; “Being transgender is not a condition to be cured. It is a core,

defining trait of identity that a person should not be forced to change or

abandon . . . .”).

11

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.12 This Court is not in the

business of “interpreting” the Constitution that way.

12 Notwithstanding Bostock v. Clayton County, no serious argument can

be made that the American people—or any of their elected representatives—

made a deliberate decision in 1964 to grant Title VII

employment-discrimination protections to men and women who “identify” as

the opposite sex. Bostock’s textual analysis proceeds from moral and

philosophical premises that were hardly imaginable in 1964. Like doctors who

assume the Transgender Vision before telling us what is best for their pediatric

patients, Bostock assumes the Transgender Vision before telling us what

12

Title VII means. Consider this key passage from the majority opinion: “Or take

an employer who fires a transgender person who was identified as a male at

birth but who now identifies as a female. If the employer retains an otherwise

identical employee who was identified as female at birth, the employer

intentionally penalizes a person identified as male at birth for traits or actions

that it tolerates in an employee identified as female at birth.” Bostock,

590 U.S. at 660.

As Bostock sees it, a biological female who “identifies” as a woman

shares a “trait or action” in common with a biological male who “identifies” as

a woman. This is the crux of the argument—that both of these people “identify”

as women. To hire the biological female but fire the biological male because

both identify as a woman is to discriminate against the biological male for

being a biological male—in violation of Title VII, Bostock says. The unspoken

philosophical assumption indispensable to this logic is that when a biological

male “identifies” as a woman, something similar is happening as compared to

when a biological female “identifies” as a woman. Bostock cannot get to its

result, even on its own terms, without asserting that biological males who

identify as women are similarly situated with biological females who identify

as women. Id. at 657–58. To support that claim, Bostock must assume that

the way in which a biological woman perceives herself to be a woman is

comparable to the way in which a biological man perceives himself to be a

woman—i.e., that we are talking about essentially the same thing when we say

of these two people that each “identifies” as a woman. This equivalence is

perhaps the core assumption of the Transgender Vision. And if the equivalence

is valid, as Bostock assumes it is, then there is force to Bostock’s argument that

the employer is discriminating against the transgender person on the basis of

his biological sex.

But if the equivalence is not valid—that is, if a human female’s innate

identity as a woman is an immutable genetic given, rather than a feeling or a

choice, and is therefore different in kind from a human male’s declaration of a

transgender identity, then Bostock’s logic falls apart. If a biological woman

correctly identifying herself as a woman is a far different thing from a biological

man incorrectly identifying himself as a woman, then the two people do not

share a “gender identity,” they are not at all similarly situated, and their

employer is not treating the female better than the male on the basis of a trait

or action they share in common. From within the Traditional Vision, the male

who claims to identify as a woman does not thereby have anything in common

with real women, who do not identify as women but simply are women. From

within the Traditional Vision, a male who believes he is a woman and a female

who knows she is a woman could hardly be less similarly situated with respect

13

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.

* * *

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. Ante at 25. 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

to the matter. She is right, and he is wrong. Her perception of reality is true,

and his is false. The two have nothing in common—at least not in the realm

of sex and gender. Bostock’s logic cannot stand if a person’s declaration of a

transgender identity is understood as a misguided break from reality, as it was

by nearly everyone in 1964—rather than as a revelation of reality, as it is by

some people today. From within the Traditional Vision, an employer who hires

a woman who correctly perceives her true sex but declines to hire a man who

incorrectly perceives his true sex is in no sense discriminating against the man

on the basis of sex. He is discriminating on the basis of whether the applicant

correctly perceives reality, which is not a characteristic with which Title VII is

concerned.

In the end, if we read Title VII from the perspective of the Transgender

Vision, the Court’s position in Bostock is quite plausible. But if we read

Title VII from the perspective of the Traditional Vision—the perspective from

which it was written in 1964—then the Court’s position quickly falls apart.

Without saying so, the Court in Bostock chose a side in an ongoing moral and

political debate. One obvious problem with the Court’s choice is that virtually

nobody in 1964 was on the Court’s side. The result is that, like the Fourteenth

Amendment, Title VII is now a living document that will follow fashionable

21st century opinion in enormously consequential ways that those who

originally consented to its enactment could not have imagined.

14

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

13 The Legislature’s authority in this regard should be informed by the

original meaning of the word “medicine,” as used in the 1876 Texas

Constitution. The conception of “medicine” reflected in the challenged

legislation and described in this opinion is consistent with what I take to be

the founding-era understanding of that term. See, e.g., Medicine, WEBSTER’S

DICTIONARY 1828, https://webstersdictionary1828.com/Dictionary/medicine

(“The art of preventing, curing or alleviating the diseases of the human body.”);

Disease, WEBSTER’S DICTIONARY 1828, https://webstersdictionary1828.com/

Dictionary/disease (“any state of a living body in which the natural functions

of the organs are interrupted or disturbed”); Medicine, 15 ENCYCLOPAEDIA

BRITANNICA 794 (9th ed. 1883) (“Taking disease to be a deflexion from the line

15

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

of health, the first requisite of medicine is an extensive and intimate

acquaintance with the norm of the body.”).

While the founding-era understanding of “medicine” is the relevant one

for understanding the Legislature’s constitutional authority, such a traditional

conception of medicine—as ordered toward the preservation and restoration of

the patient’s biological health rather than toward the satisfaction of the

patient’s desires—is not a defunct relic of times gone by. To the contrary, this

view continues to play an important role in contemporary debates about

medical practice and medical ethics. See, e.g., FARR CURLIN & CHRISTOPHER

TOLLEFSEN, THE WAY OF MEDICINE: ETHICS AND THE HEALING PROFESSION

107 (2021) (arguing that a physician’s ethical obligation is to promote the

objective biological health of the patient, which may entail “resist[ing]

inducements to interfere with, interrupt, or otherwise revise the healthy

development, maturation, and function of male and female sexual organs and

capacities”); Leon R. Kass, Regarding the end of medicine and the pursuit of

health, 40 THE PUB. INTEREST 11, 13–16, 29 (1975) (advocating for the ancient

view that the end of medicine is the patient’s objective health—as opposed to

the gratification of the patient’s desires or the pursuit of the patient’s

happiness; on this view, health is “the well-working of the organism as a whole”

or “an activity of the living body in accordance with its specific excellences”).

16

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.

17

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.

* * *

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

18

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.14

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

14 To be fair, from within the Transgender Vision, the Traditional Vision

surely also has characteristics of a religion. Perhaps, as has been said before,

“all human conflict is ultimately theological.” HILAIRE BELLOC, THE CRUISE

OF THE “NONA” 54 (Century Publ’g 1983) (quote attributed to Henry Edward

Cardinal Manning).

19

portions of a young girl’s sexual organs.15 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

15 Tresa Baldas, Religious defense planned in landmark Detroit genital

mutilation case, DETROIT FREE PRESS (May 21, 2017, 9:42 AM),

https://www.freep.com/story/news/2017/05/21/female-genital-mutilationreligious-

freedom/319911001/; see also Female Genital Mutilation, UNFPA

SOMALIA, https://somalia.unfpa.org/en/topics/female-genital-mutilation-5 (last

visited June 26, 2024) (“Despite United Nations resolutions calling for the

elimination of FGM, the practice remains near universal in Somalia with a

99 per cent prevalence rate.”); Female genital mutilation, UNFPA EGYPT,

https://egypt.unfpa.org/en/node/22544 (last visited June 26, 2024) (“According

to the Egyptian Family Health Survey (EFHS) 2021, 86 percent of Egyptian

married women between the ages of 15 and 49 have undergone FGM,

74 percent of whom by doctors.”).

20

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”).

* * *

The plaintiffs rely primarily on the Due Course of Law Clause of

the Texas Constitution.16 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.

16 “No citizen of this State shall be deprived of life, liberty, property,

privileges or immunities, or in any manner disfranchised, except by the due

course of the law of the land.” TEX. CONST. art. I, § 19.

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.17 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.18 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.

17 As I have written before, I am not convinced that constitutional

protection for parental rights—the existence of which both this Court and the

U.S. Supreme Court have repeatedly and rightly acknowledged—finds its most

suitable grounding in substantive due process (or substantive due course of

law). See In re H.S., 550 S.W.3d 151, 177–78 (Tex. 2018) (Blacklock, J.,

dissenting) (suggesting the Privileges and Immunities Clause and the Ninth

Amendment as potential alternative bases for recognizing that traditional

parental authority over children has a constitutional dimension beyond the

Legislature’s reach).

18 Because of circumcision’s connection to religious practice, many of its

proponents would likely succeed in opposing the government’s prohibition of it

by asserting their religious liberty—without resorting to the shakier ground of

substantive due process. Even so, because of its roots in history and tradition,

the parental right to circumcise a male child would likely fare much better

under Glucksberg than would transgender treatments or female genital

mutilation.

22

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.

* * *

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

---

Thank you for reading Von’s Substack. I would love it if you commented! I love hearing from readers, especially critical comments. I would love to start more letter exchanges, so if there’s a subject you’re interested in, get writing and tag me!

Being ‘restacked’ and mentioned in ‘notes’ is very important for lesser-known stacks so… feel free! I’m semi-retired and write as a ministry (and for fun) so you don’t need to feel guilty you aren’t paying for anything, but if you enjoy my writing (even if you dramatically disagree with it), then restack, please! Or mention me in one of your own posts.

If I don’t write you back it is almost certain that I didn’t see it, so please feel free to comment and link to your post. Or if you just think I would be interested in your post!

If you get lost, check out my ‘Table of Contents’ which I try to keep up to date.

Von also writes as ‘Arthur Yeomans’. Under that name he writes children’s, YA, and adult fiction from a Christian perspective. His books include:

The Bobtails meet the Preacher’s Kid

The Bobtails and the Cousins

The Bobtails go to France

and

No Ordinary School

Arthur also has a substack, and a website.

Thanks again, God Bless, Soli Deo gloria,

Von

Links

The above opinion was taken directly and without edit (except for the insertion of memes and some formatting) from the Texas State Supreme Court Website.

Justice Blacklock and Devine, Concurring Opinion (above)

JUSTICE BUSBY, writing to promote parental rights, while still concurring in the judgement

JUSTICE YOUNG, writing to emphasize the role of self-government

The majority opinion

I do not here link to the blasphemy that is the dissent. Feel free to find it on your own.