Texas Supreme Court rules investigations into gender-affirming care can continue
The state’s high court allowed the investigations of families who provide gender-affirming care for transgender children to continue but said the Texas Department of Family Protective Services is not bound by Gov. Abbott and Attorney General Paxton’s orders.
The Texas Supreme Court on Friday overturned a statewide ban on investigations into gender-affirming care for transgender youth as child abuse.
The decision comes after the Texas Third Court of Appeals in late March halted investigations while a lawsuit filed by the American Civil Liberties Union of Texas and Lambda Legal meanders through the state courts. The legal groups filed a lawsuit on behalf of a family who was investigated by the Texas Department of Family and Protective Services for providing gender-affirming care to their teenaged daughter.
The state’s high court left the injunction in place for that family, however, but ruled the lower court’s order could not be applied to other families who are not a part of the litigation.
“Parts … of the order exceed the court of appeals’ authority because they apply broadly to “any and all persons” who are not parties to this lawsuit. This affords relief not to the parties, but to “any and all” nonparties who may find themselves in circumstances similar to the plaintiffs” the order states.
The investigations were prompted by Texas Attorney General Ken Paxton issuing a non-binding opinion in February that stated certain “sex-change” procedures and the prescribing of puberty-blockers to certain children is “child abuse” under state law.
That was followed by a directive from Gov. Greg Abbott to the Texas Department of Family and Protective Services “to conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas”.
But the Texas Supreme Court also said in its opinion Friday that the Texas DFPS was not bound to act by either Paxton’s opinion or Abbott’s order because the Texas Legislature grants the “responsibility” to investigate allegations of child abuse to DFPS instead.
“We are directed to no source of law obligating DFPS to base its investigatory decisions on the Governor’s letter or the Attorney General’s Opinion,“ the justices wrote. “The Governor and the Attorney General were certainly well within their rights to state their legal and policy views on this topic, but DFPS was not compelled by law to follow them.”
The court added that while DFPS has authority to investigate allegations of child abuse it does not have "the ultimate authority to interfere with parents’ decisions about their children."
The state’s high court did not rule on the merits of the case, which are still before the appellate court.
In a statement Lambda Legal and the ACLU said the ruling was a win for their clients and “the rule of law.”
“The Texas Supreme Court made clear that the attorney general and governor do not have the authority to order DFPS to take any action against families that support their children by providing them with the highest standards of medical care,” the legal organizations said. “The court rejected the attorney general’s arguments that our lawsuit should be dismissed and affirmed that DFPS is not required to follow the governor’s directive or the attorney general’s non-binding opinion.”
While Lambda Legal and the ACLU of Texas acknowledge the ruling is limited in scope to their clients, they say it would be unreasonable for DFPS employees to pursue investigations while the case plays out.
“It would be unconscionable for DFPS to continue these lawless investigations while this lawsuit continues, and we will not stop fighting the protect the safety and lives of transgender youth here in Texas,” the statement concludes.
Paxton celebrated the decision as a win in a tweet Friday afternoon. But he didn't mention the part of the ruling which said his opinion has no binding effect.
"Just secured a win for families against the gender ideology of doctors, big pharma, clinics trying to “trans” confused, innocent children," he posted.
The investigations were first halted by Travis County-based state district Judge Amy Clark Meachum on March 11, who said Abbott acted beyond the scope of his authority when he issued the order. But Paxton immediately fought that ruling and filed the appeal.
Families are “not in a good place.”
Families with transgender children say they have suffered immeasurable stress and anguish over the state’s tactics. Amber Briggle, who invited Paxton and his wife to dinner in 2016, recently told NPR that she had better things to do than being politically targeted. She said she thought the visit with the Paxtons would have changed his mind.
“I'm not in a good place. No," she told NPR. "I'm worried. I'm angry.”
The directive has not only led to worries over how families will be investigated, but also caused concern about its possible effects on the mental health of transgender children.
Carter Brown, the executive director of the Carrolton-based National Black Trans Advocacy Coalition, said the state’s efforts could be stigmatizing for some.
"If everybody is telling you that you're wrong or you don't fit, or even more so, that you'll be punished along with your parents for living the way that you are, what message is that for a child? How could that not be detrimental to anybody's mental health?" Brown recently told KERA News.
This is a developing story and will be updated.