Texas Supreme Court says governor cannot order trans child abuse investigations
Brian Klosterboer, an attorney with the ACLU of Texas who is representing the family who sued, said the court said it is now up to DFPS whether to restart those investigations it had already opened. He urged them not to while litigation continues. “While the lawsuit continues, DFPS should not take any action against any families or any transgender young people in Texas,” Klosterboer told The Dallas Morning News. “It would be unconscionable.”
AUSTIN, Texas — The Texas Supreme Court on Friday struck down a statewide injunction halting child abuse investigations into the parents of transgender youth, while keeping in place a block on the case of one family who sued the state.
In a split ruling on Friday, the court agreed with the state that a lower court could not block all such abuse investigations statewide. But it also noted the governor and attorney general had no authority to order the Texas Department of Family and Protective Services undertake these investigations in the first place.
“Neither the Governor nor the Attorney General has statutory authority to directly control DFPS’s investigatory decisions. They have every right to express their views on DFPS’s decisions and to seek, within the law, to influence those decisions — but DFPS alone bears legal responsibility for its decisions,” the opinion read.
The ruling means that DFPS need not continue investigating the parents of transgender children if the agency does not believe there is any abuse. It was also a strong rebuke to Attorney General Ken Paxton and Gov. Greg Abbott reminding them that there are limits on their power — especially when it comes to parent’s rights.
“DFPS’s preliminary authority to investigate allegations does not entail the ultimate authority to interfere with parents’ decisions about their children, decisions which enjoy some measure of constitutional protection whether the government agrees with them or not,” the opinion read.
A spokesman with the Department of Family and Protective Services said the agency is reviewing the ruling.
Brian Klosterboer, an attorney with the ACLU of Texas who is representing the family who sued, said the court said it is now up to DFPS whether to restart those investigations it had already opened. He urged them not to while litigation continues.
“While the lawsuit continues, DFPS should not take any action against any families or any transgender young people in Texas,” Klosterboer told The Dallas Morning News. “It would be unconscionable.”
Abbot and Paxton, whose agency is litigating the case on behalf of the state, did not immediately respond to a request for comment.
On Feb. 22, Paxton issued a nonbinding opinion that classified certain gender-affirming treatments like puberty blockers and hormone therapy as child abuse. Gov. Greg Abbott, citing this opinion, then directed the Department of Family and Protective Services to investigate all reports of minors receiving such care.
DFPS is in the executive branch under Abbott and the governor appoints the agency’s commissioner.
Since then, the state has opened at least nine investigations, including into the parents of a transgender teenager whose mother works for the child protective service agency. The mother, known anonymously as Jane Doe, sued the state over the policy change. Megan Mooney is also a plaintiff in the case. A psychologist based in Houston, Mooney worries she will be violating her medical ethics and that her job might be at stake if she abides by the state’s abuse directive.
In March, the Third Court of Appeals granted Doe’s request for an injunction to put all investigations started under Abbott’s order on hold. Paxton appealed it to the Supreme Court.
Individualized, age appropriate care for trans youth — including the treatments Paxton called abuse — is supported by all of the state and nation’s largest physician groups, including the Texas and American Medical Associations. The administration of Joe Biden has criticized the child abuse probes and offered legal guidance to Texas families.
Paul Castillo, an attorney with Lambda Legal who is representing the plaintiffs alongside the ACLU, said child protective services still has the authority to investigate families of transgender children if they believe there is abuse.
But any families who feel they are targeted solely because they are seeking medical treatments for their trans children should contact the ACLU and Lambda Legal, he said.
Gender affirming medical care for transgender youth has become a political flashpoint in Texas in recent years. During the 2021 legislative session, lawmakers tried and failed to ban treatments like puberty blockers and hormone therapy to treat gender dysphoria in minors.
Paxton and Abbott’s letters were issued in the midst of the most competitive Republican primary season in a decade. Abbott, whose challenger was pressuring him to take a stand against gender affirming care, won his primary outright and will face Democrat Beto O’Rourke in the November general election.
Paxton was pushed into a May 24 runoff with GOP challenger George P. Bush.
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