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Lawyers for parents of trans kids disagree on whether child abuse investigations can continue

Texas Attorney General Ken Paxton speaks during a press conference outside the Supreme Court in Washington, D.C., on Nov. 1, 2021.
Eric Lee
The Texas Tribune
Texas Attorney General Ken Paxton speaks during a press conference outside the Supreme Court in Washington, D.C., on Nov. 1, 2021.

Ken Paxton tweeted Friday that investigations into parents of transgender children would continue as a result of his appeal. But the state’s child welfare agency won’t confirm the status of the investigations.

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When a judge ruled Friday that Texas could not investigate parents for child abuse simply for providing gender-affirming care, it was immediately clear that the legal fight was far from over.

That same night, Attorney General Ken Paxton filed an appeal and then announced on Twitter that the “Democrat judge’s order permitting child abuse is frozen.”

He said that “[m]uch-needed investigations [will] proceed as they should,” and noted that his “fight will continue up to the Supreme Court.”

Lawyers representing the families of transgender children said they don’t believe the appeal should affect the injunction.

Legal experts say this case falls into a complicated corner of the law until the appeals court weighs in.

This case stemmed from a nonbinding legal opinion that Paxton issued last month, arguing that certain gender-affirming health care can constitute child abuse. Gov. Greg Abbott followed that with an order directing the state’s child welfare agency to investigate parents who provide this health care to their transgender children.

The ACLU and Lambda Legal filed a lawsuit on behalf of one such family. On Friday, District Judge Amy Clark Meachum blocked the Department of Family and Protective Services from investigating families solely on the basis of providing this health care to their children.

Two lawyers representing families under investigation told The Texas Tribune that they are proceeding as if the injunction is still in effect and, as a result, have directed their clients to no longer participate in the investigations.

In a statement, a spokesperson for DFPS said that the agency’s “posture on these investigations is that we are continuing to follow the law.” The spokesperson declined to elaborate about whether the investigations are ongoing or are halted as a result of the injunction.

Paxton’s office did not respond to a request for comment, but the appeal he filed relies on an argument that would allow for an automatic stay in all trial court proceedings.

“It’s up to the court of appeals to decide whether to reinstate the impact of the injunction,” said South Texas College of Law Houston professor Rocky Rhodes. “It’s not automatic, but I think that [the ACLU and Lambda Legal] will have a very strong case to have it reinstated.”

But lawyers have challenged these automatic stays before, claiming the state should not be able to overturn an injunction simply by filing an appeal. Attorney Chad Dunn represented the Texas Democratic Party in a case on mail-in voting in which Paxton made a similar argument.

“That would be an extraordinary rule,” Dunn said. “That is not the rule in federal court or other states that I'm familiar with, that you get an injunction against the state and they can just effectively ignore it until there's been an appeal completed.”

Dunn said he has seen this argument appear only in recent years, and neither the state’s courts appeals courts or the Texas Supreme Court has definitively affirmed that the state has a right to overturn these injunctions.

“In the cases I’m familiar with, the Court of Appeals has either just glossed over this question or they just say … we're empowered to issue injunctions, so we're going to issue the same injunction and keep it in place until such time as we decide the appeal,” he said.

If the Court of Appeals grants similar relief, Rhodes said, that will remain in effect even if the case is appealed to the Texas Supreme Court, as Paxton has said it will be.

The Third Court of Appeals likely will issue an order soon.