The Texas Supreme Court has issued a mixed ruling regarding state investigations into parents who allow their transgender children to access gender-affirming care.
The high court stopped an investigation into the family of a particular transgender minor, whose mother, Jane Doe, works for the Texas Department of Family and Protective Services and questioned how the department would enforce a directive from Gov. Greg Abbott. That directive ordered state agencies to investigate parents who allow transgender children to access puberty blockers, hormones, or surgery (which is rarely performed on minors) for “child abuse.”
Abbott based his directive on a legal opinion, issued by Attorney General Ken Paxton, opining that surgical or hormonal interventions are “abuse” because they cause infertility, and thus violate transgender-identifying minors’ right to procreate. DFPS Commissioner Jaime Masters subsequently issued a statement vowing to “follow Texas law” as laid out in Paxton’s opinion.
After she questioned the validity of Abbott’s orders, Doe was placed on leave and was investigated by DFPS, who demanded she and her husband hand over documentation regarding her transgender daughter’s medical records.
The American Civil Liberties Union and Lambda Legal then sued on Doe’s behalf, as well as on behalf of Megan Mooney, a psychologist who treats transgender youths, who has argued that the directive conflicts with her professional ethics, placing her in an untenable position of either refusing to treat her patients or risk prosecution if she does.
In March, a Texas state judge issued an injunction blocking the DFPS from pursuing an investigation against the Doe family. That same judge then issued a statewide injunction preventing investigations into other allegations of “child abuse” involving transgender children. That injunction was later upheld by a Texas appeals court. Paxton then appealed the decision.
While the Supreme Court blocked the investigation into the Doe family from proceeding, it also struck down the larger statewide temporary injunction on other families, meaning that investigations into parents of trans children may resume if DFPS employees deem it necessary. Thus far, aside from the Doe family, DFPS has opened eight other investigations into families with trans children.
On the other hand, the court also ruled that Abbott has not authority over the investigations or how they are conducted — something that equality advocates had feared would encourage DFPS workers to embellish or fabricate abuse charges in order to curry favor with the governor and other Republicans in the higher echelons of state government.
Such politically-expedient fabrications — or outright falsehoods — could still potentially be made by individual caseworkers based on their personal opposition to transgender rights, especially given that the head of DFPS, Jaime Masters, is appointed by Abbott, but removing the governor from the equation reduces some of the political pressure to do that.
Writing for the court, Justice Jimmy Blacklock said that Abbott and Paxton lack the authority to direct DFPS as far as the investigations into trans-identifying children are concerned.
“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,” he wrote. “[T]he Legislature has granted to DFPS, not to the Governor or the Attorney General, the statutory responsibility to ‘make a prompt and thorough investigation of a report of child abuse or neglect.'”
Both equality advocates and opponents claimed the ruling as a victory for their side.
The ACLU, ACLU of Texas, and Lambda Legal praised the part of the opinion affirming that DFPS is allowed to make its own determinations regarding whether to pursue any investigations.
Karen Loewy, senior counsel for Lambda Legal, told NBC News that the Supreme Court, in blocking the investigation into the Doe family, did support the idea that an investigation would cause “irreparable harm.”
“By crediting that irreparable harm finding, it basically means that every time the agency goes to investigate a family based solely on the fact that they are providing the medically recognized, provider-recommended course of care for their children, that that same irreparable harm happens” Loewy said. “So if this policy is unlawful as to our clients, it is unlawful as to every other Texas family that DFPS might try and target.”
At the same time, Paxton bragged on Twitter that he had “secured a win for families against the gender ideology of doctors, big pharma, clinics trying to ‘trans’ confused, innocent children.”
“‘Training’ kids through surgery/drugs is abuse and I’ll do all I can to stop it,” Paxton tweeted.
Just secured a win for families against the gender ideology of doctors, big pharma, clinics trying to “trans” confused, innocent children. SCOTX green-lighted investigations that lower Dem courts froze
“Transing” kids through surgery/drugs is abuse & I’ll do all I can to stop it
— Attorney General Ken Paxton (@KenPaxtonTX) May 13, 2022
Some other parents with transgender children expressed their displeasure at the ruling, arguing that the loss of the statewide injunction now puts them at risk of having their children taken away from them or labeled as a “child abuser” for pursuing good-faith efforts to find the best treatment for their children, whether that is social transitioning or pursuing medical interventions.
One parent, Katie L., who previously spoke with NBC News in March, already has plans to move to Denver this summer to avoid being investigated by Abbott. On Friday, she said she is trying to move up the timeline for the family’s relocation, not content to wait around for the state to interfere with her parenting decisions regarding her 15-year-old trans son.
“At this point, I’m going to be talking to our future landlord about maybe even bumping up our lease date just to see what the possibilities are if we wanted to leave faster,” she said. “It’s so unfortunate. All of this time and energy should be spent on positive things for our family and positive things for our future, and it feels like we’re always getting thrown back into this defensive, adrenaline-fueled position. It’s a nightmare.”
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