Texas’s appeal of ruling on transgender medical care is 'waste of time,' veteran lawyer says
An appeal of a judge’s order that temporary halted state investigations of transgender care should be tossed out immediately because the state hasn’t followed proper procedure, an expert in administrative law told a state appeals court.
An appeal seeking to overturn a judge’s temporary ban on state investigations into gender-affirming medical care as child abuse is “frivolous” and should be rejected, a veteran lawyer and former professor at Baylor University has told a Texas appeals court.
The assertion Wednesday by retired professor Ron Beal was filed with the Texas Third Court of Appeals after a ruling last week that a directive by Gov. Greg Abbott to investigate some medical care for transgender youths exceeded his legal authority.
Last month, Texas Attorney General Ken Paxton issued a non-binding opinion that certain “sex-change” procedures and the prescribing of puberty-blockers to certain children is “child abuse” under state law and said the Texas Department of Family Protective Services should “act accordingly.”
Paxton’s opinion was followed by a directive from Abbott to the Texas DFPS “to conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas”.
The agency subsequently began investigating several families but on Friday District Judge Amy Clark Meachum in Travis County temporarily blocked a directive and said the directive exceeded Abbott's authority under the Texas Constitution and the type of care it targeted never triggered an investigation before.
Paxton immediately appealed the ruling Friday and tweeted that: “Thankfully, Democrat judge’s order permitting child abuse is frozen. Much-needed investigations proceed as they should,” he said.
But it’s unclear if the investigations into the alleged child abuse are ongoing after Judge Meachum’s order.
“We don’t exactly know what is happening. It’s complicated and we can’t say one way or another what kind of effect that Paxton’s appeal really has,” said Brian Klosterboer, an attorney with the American Civil Liberties Union who represents the plaintiffs in the case. “But I will say we are working as quickly as we can to affirm the statewide relief.”
Paxton’s office did not respond to a request for comment about how the investigations are allowed to continue pending appeal. A spokesperson for the DFPS would only say the agency will “continue to follow the law” but would not elaborate on whether that means the directive or the injunction.
Beal argued in an amicus brief the directive was illegally implemented because proper procedures were not followed. He said that according to state law, the directive falls under the definition of a “rule, "which must undergo notice-and-comment procedures.
“There is simply nothing else that needs to be considered and this appeal by Attorney General Paxton is utterly frivolous and a total waste of time for this Court and all parties and lawyers acting on their behalf,” he wrote.
Beal, who is considered an expert in administrative law and taught at Baylor University for nearly 40 years, said he wasn’t compensated for the brief and filed it on his own accord. But, he added, he doesn’t think the state should interfere in such personal decisions.
“I am totally on the side that our governor and our attorney general, for whatever reason they're doing this, should stop,” he said. “If they're going to do it, they've got to do it [based] on facts. They've got to prove that this actually is bad, that it's injury, that it's damaging people. [But] I just think this is between a parent, a child, and doctors.”
Paxton’s office did not respond to a request for comment about Beal’s amicus brief.
Beal also told The Texas Newsroom that absent action by the Texas Legislature, the rulemaking procedure is what is followed in a process that usually takes several months.
“It usually takes six or nine months to do that. And then as soon as it's adopted, then it can be challenged in a court of law that,” he said. “And that'll delay it another year or so. And [Paxton and Abbott] want it on the books right now.”
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