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Texas high court OKs investigations into parents of transgender kids

While the Texas Department of Family and Protective Services may resume investigating parents who provide gender-affirming care for child abuse, the court stressed the agency is not legally required to follow Governor Greg Abbott's directive telling it to do so.

AUSTIN, Texas (CN) — The Texas Supreme Court ruled Friday that the state Department of Family and Protective Services is allowed to investigate the families of transgender children for abuse with the one exception of a family that has already won an injunction against the state. 

In a 12-page ruling, the high court held that an appeals court decision to entirely enjoin the state from opening child abuse investigations into parents who provide gender-affirming care to their children was improper. However, the justices emphasized that a legal opinion written by Republican Texas Attorney General Ken Paxton defining hormone treatments and surgeries as child abuse and a letter from Republican Governor Greg Abbott directing DFPS to investigate parents who provide such care for child abuse are nonbinding and do not alter the responsibilities of the state agency.  

In his letter, Abbott wrote, “Texas law...imposes a duty on DFPS to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures, and on other state agencies to investigate licensed facilities where such procedures may occur.”  

Justice Jimmy Blacklock, a Republican, granted partial relief to the state. He wrote the court of appeals "abused its discretion" by enjoining DFPS entirely from investigating the parents of transgender kids for child abuse.

“The state lacks an adequate appellate remedy by which to avoid this invalid aspect of the court of appeals’ order,” Blacklock wrote. “Mandamus relief is appropriate as to the order’s application to ‘any and all’ nonparties.” 

However, the court refused to lift an injunction blocking the state from investigating the family of a 16-year-old transgender girl and a Houston-area clinical psychologist. The family sued the state after an investigation of them was opened. An Austin district court judge enjoined the state from investigating the family further, saying that allowing the state to continue would result in irreparable harm. The state then filed an interlocutory appeal challenging the injunction, resulting in the appeals court blocking all such investigations.  

The mother, identified as Jane Doe in the family's lawsuit, worked at DFPS and was put on leave hours after the agency received Abbott's letter. While their case is pending, the family is protected from investigation.

The court unanimously reiterated that the opinion released by Paxton and the DFPS directive from Abbott are both nonbinding and do not change the legal obligations of the state agency.

“Unlike some executive orders of the governor that are afforded binding legal effect by statute, the governor’s letter cites no legal authority that would empower the governor to bind state agencies with the instruction contained in the letter’s final sentence, and we are directed to none," wrote Blacklock. “Neither the governor nor the attorney general has statutory authority to directly control DFPS’s investigatory decisions.”

Blacklock went on to say that while DFPS may have bound itself to the governor’s letter, it is the agency that has the authority to launch investigations into reports of child abuse or neglect.

Paul Castillo is a senior legal counselor at Lambda Legal, which helped represent the family in their case against the state. He said in an interview that the court’s ruling is a win for his clients and the rule of law.

“Importantly, the Texas Supreme Court emphasized that neither the attorney general nor governor have the authority to direct DFPS to investigate families with transgender youth who are receiving gender-affirming care for child abuse,” said Castillo. “Here in Texas, the legislature did not change the law, did not change what defines child abuse and DFPS would be on shaky ground if they were to continue to conduct investigations in light of this decision.” 

Since the governor and attorney general’s actions in February, social workers that would be tasked with conducting such investigations are quitting, citing the unwillingness to comply with what they see as a politically motivated directive. 

Texas lawmakers attempted to pass a law in the last legislative session that would have defined hormone therapies and surgeries as child abuse. That law failed to pass, but some other states have successfully enacted such legislation. Alabama recently passed a law that makes it a felony punishable by up to 10 years in prison for anyone who provides gender-affirming care such as hormone blockers.

Castillo said that the mere introduction of laws and statements that conflate gender-affirming care for youth with gender dysphoria as child abuse exacts a great toll on children and families.

“It is an attempt to exclude transgender youth from the public sphere, … and it sends a message that is detrimental to their mental health and well-being,” he said.

The practice of gender-affirming care has been deemed medically necessary by the American Medical Association for lowering severe mental illness and suicide among transgender children. The American Academy of Pediatrics has spoken out against the governor’s actions and said in a statement that they threaten "the health and well-being of transgender youth.”

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Categories / Appeals, Civil Rights, Government, Regional

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