State officials are free to resume child abuse investigations against parents who provide adolescents with gender-affirming medical care under a ruling released Friday by the Texas Supreme Court.
The ruling struck down a statewide injunction, issued by an Austin judge in March, that halted child abuse investigations based on providing medical treatment for gender dysphoria in minors.
The ruling allowed only a portion of the injunction to remain in force — the part that blocked abuse investigations into the family that sued to halt a policy they said violated their fundamental right to care for their children.
Lower courts did not have the authority to halt investigations into families who were not a party to the lawsuit, the Supreme Court said.
Friday’s ruling was limited to enforcing the injunction. The merits of the case — whether state-ordered child abuse investigations into transgender care violate the rights of families — remains before the Austin-based 3rd Court of Appeals. The first legal brief there is due May 25.
But the Texas Supreme Court also clarified that Gov. Greg Abbott — who in February directed the state’s child welfare agency to investigate reports of “gender-transitioning procedures” as child abuse — did not have the power to require the agency to do such investigations.
The Texas Department of Family and Protective Services quickly announced in February that it would follow Abbott’s directive — an action that the agency was not legally required to take, Friday’s ruling said.
While Abbott had the right to state his policy view on the subject, “DFPS was not compelled by law to follow (it),” the court said.
Lawyers who specialize in LGBTQ rights hope that clarification means the state agency will decline to resume or launch abuse investigations while the policy’s legality is under court review.
“We hope that, with a clear determination from the Texas Supreme Court that this directive is not legally binding, that everything will go back to business as usual before this directive from Gov. Abbott came out,” said Currey Cook, senior counsel with Lambda Legal.
“Are they going to do that? We don’t know. We hope so,” he said.
Asked about the child welfare agency’s plans, a spokeswoman said the ruling was being reviewed. “We have no immediate comment beyond that,” spokeswoman Marissa Gonzales said.
9 investigations had begun
State officials said nine families with transgender children were under investigation when state District Judge Amy Clark Meachum issued the injunction, ruling in March that Abbott’s directive improperly exceeded his authority.
The legal challenge was launched by parents, identified only as Jane and John Doe in court documents, who were under investigation for providing gender-affirming care to their 16-year-old. The mother worked for the Department of Family and Protective Services, which placed her on leave and initiated a child abuse investigation after she asked a supervisor to clarify what Abbott’s order meant for her family.
Cook, one of the lawyers for Jane and John Doe, said he was relieved that the family remains off limits to child abuse investigators.
But the ruling should have a wider impact, Cook added, because it left intact the portion of the injunction that protected the Doe family — including Meachum’s finding that the child abuse investigation caused irreparable harm to the couple and their child.
“It does not seem to make a lot of sense … to continue to investigate other families based on (a policy) that causes irreparable harm,” Cook said.
Families should not be investigated for loving and affirming their children when they follow guidance from qualified medical practitioners, he said, adding, “That’s basic, good child welfare practice.”
Texas Attorney General Ken Paxton praised Friday’s ruling.
“Just secured a win for families against the gender ideology of doctors, big pharma, clinics trying to ‘trans’ confused, innocent children,” he said on Twitter.
Paxton appeal initiated ruling
After a daylong hearing in March, during which Jane Doe testified about the strain and stigma caused by the child abuse investigation, Meachum issued a temporary injunction that blocked investigations based solely on medical care for transgender youths experiencing gender dysphoria, the distress caused when a person’s body does not match their gender identity.
The investigations violated the constitutional rights of the families, the judge ruled.
Paxton immediately appealed, an act that halted enforcement of the injunction under state rules on court procedure.
The Austin-based 3rd Court of Appeals eventually reinstated the injunction, blocking the abuse investigations until it could rule on the legality of Abbott’s directive and the Department of Family and Protective Services’ implementation of it.
Paxton next asked the state Supreme Court to block the injunction as improper. The court largely agreed Friday, halting the injunction’s statewide scope for violating state rules that do not let appeals courts grant relief to people who are not a party to a lawsuit.
In a partial dissent, three justices said they would have blocked every aspect of the injunction, arguing that the proper time for a legal challenge would be when abuse investigators try to remove a child or take other action based on an investigation.
“They cite no case in which an injunction has been obtained prohibiting the executive branch from exercising its well-established prerogative to investigate whether the law has been broken,” said the dissenting opinion by Justice Jimmy Blacklock that was joined by Justices Jeff Boyd and John Devine.
All nine justices on the Supreme Court are Republicans, while there are five Democrats and one Republican on the 3rd Court of Appeals, which is weighing the constitutionality of the child abuse investigations. The Supreme Court will have the final say on what the 3rd Court determines.