“From Boots to Beaches”1: The Texas and Florida Bans on Gender-Affirming Care and What this Means for Parental Rights
At the end of March, I had the pleasure of presenting, along with my colleague, Serena Hudson, to the Family Law Section of the Florida Bar Association during their annual retreat in Austin, Texas. Part and parcel of that trip, we were invited to a private tour of the Texas Capitol. As a native Texan, I have been to the Capitol on numerous occasions, but this trip was particularly special in that the 88th Legislature was in full swing. As our group approached the Capitol in our tour bus, the skyline was covered with a multitude of banners and signs either supporting or protesting the bills set to be heard either that day or in the coming weeks. The chants of the gathered crowd were muffled as we exited the bus. However, as we made our way up the hill towards the entrance, the chants became much louder, and the signs became clearly visible. This day, gender-affirming care would take center stage.
When our tour was completed, our group of lawyers began discussing Florida and Texas laws and the legislation that was being presented in both states concerning access to gender reassignment surgeries, puberty blockers, hormone therapies, and a variety of other medical interventions for transgendered youth. While there were some notable differences, the net result of the proposed legislation in each state was unsurprisingly similar – the near abolition of gender-affirming care.
Pursuant to Texas Senate Bill 14, which Governor Abbott has said he will sign any day now, absent certain genetic markers, Texas health plans, physicians, and other healthcare providers will be prohibited from performing sterilization procedures or prescribing puberty suppression or blocking medications, except as medical necessary for normalizing puberty symptoms. For those minors already receiving prescription medication as of June 1, 2023, the prohibitions related to those prescriptions do not apply, provided the same is part of a continuing course of treatment and the child attended 12 or more sessions of mental health counseling or psychotherapy at least six months prior to receiving the treatment. However, the Bill mandates that the child receiving such treatment prior to June 1, 2023 shall be weaned off the prescription medication in a “manner that is safe and medically appropriate” over a period of time, and no new course of treatment shall be implemented. Once Abbott signs the Bill, it will become effective September 1, 2023 A full text of the Bill can be found at https://capitol.texas.gov/billlookup/text.aspx?LegSess=88R&Bill=SB14.
On May 17, 2023, Governor DeSantis signed Senate Bill No. 254 likewise banning gender-affirming medical care in Florida such as surgeries, puberty blockers or hormone therapy for transgender youth. Physicians who violate the bill could serve a prison sentence of up to 5 years. While the Texas’ bill is currently limited to minor children, the Florida bill expands its restrictions to adults, mandating that those over the age of 18 seeking gender-transition care sign a consent form and receive such treatment in person and not via telemedicine. However, the most notable difference from the Texas’ legislation is that Senate Bill No. 254 grants Florida State courts temporary emergency jurisdiction over a child that is present in the state that has “been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures”. The Bill goes even further by clarifying and modifying the definition of “serious physical harm” incorporated into Florida’s version of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)2 to include situations in which a minor child is being subjected to sex-reassignment prescriptions or procedures. A full text of Florida Senate Bill No. 254 can be found at http://laws.flrules.org/2023/90.
Texas and Florida are not the first states to enact laws prohibiting, or at least significantly limiting, gender-affirming care. And, they will not be the last. At present, over a dozen states, other than Texas and Florida, have passed similar legislation. Now, the constitutional challenges are mounting. Just last week, U.S. District Judge, Robert Hinkle of Florida, heard arguments from an attorney of three families of transgendered children seeking to block Senate Bill 254 from taking effect. The argument – the Bill effectively strips the right of parents to make medical decisions for their children and violates their constitutionally protected rights. Similar challenges have been brought in Alabama, Arkansas, and Oklahoma, the latter of which has agreed not to enforce the state-approved ban. With Texas, the second most populated state in the US joining the fray, the United States Supreme Court will most assuredly accept a case presenting these constitutional challenges in the very near future.
Nearly every state has constitutional protections for parents’ rights to raise and nurture their children. The United States Constitution likewise protects these rights. However, the US Supreme Court has made it clear that these rights are not absolute and that state intervention, as a last resort, is appropriate when parents pose a risk to a child’s health or safety. How this will all square with the gender-affirming care bans remains to be seen.
Until we have a decision from the US Supreme Court, I imagine that family law courts in each state will be inundated with issues directly or tangentially affected by the new legislation. As a family law practitioner, and one who often deals with interstate issues involving the UCCJEA, I am greatly concerned about the potential for certain litigants to use the effects of the bans as a sword and a shield. I envision parents fleeing states such as Texas and Florida and using purported, extended vacations or family emergencies to establish a new home state with jurisdiction over the legal and physical custody of their children or requesting temporary emergency jurisdiction to prevent serious physical harm to a child due to the bans3. The same can be true for those seeking refuge in Florida to prevent gender-affirming care from being implemented on a child. While the UCCJEA contains provisions regarding interstate communication between courts of the involved states to expeditiously resolve such jurisdictional disputes, the timing for implementing such procedures varies from state to state. Still further, the delay and expense are often enormous for the litigants and the already over-burdened court system.
Regardless of your personal opinions concerning the enacted legislation, the potential chaos created by these different state laws and their effects on parental rights and jurisdictional controls should not be ignored.
1From March 22, 2023 through March 26, 2023, the Florida Bar Family Law Section held their annual retreat at the Driskill in Austin, Texas. The CLE event was entitled “From Beaches to Boots: A Comparison of Florida and Texas Law.”
2An interstate act adopted by 49 states to enhance cooperation concerning enforcement of orders related to custody, visitation rights, and punishment for anyone who removes a child from that child’s home state.
3Unfortunately, such tactics were already employed by custody litigants prior to the gender-affirming care bans.