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AUSTIN – The Texas Supreme Court Friday ruled that the Texas Department of Family and Protective Services (DFPS) can continue to investigate families in the state who provide medically necessary care for their Trans children, excluding the parties in the litigation that brought the matter forward in a lawsuit filed in March.
The DFPS investigation into the Travis County family of a transgender teen that sued the state earlier this year was blocked by a lower appellate court injunction. The high court did uphold the injunction into that case barring further action by DFPS. However, the court struck down a statewide injunction issued by the lower court Friday on procedural grounds, leaving open the state’s ability to have DFPS once again investigate other families that provide gender-affirming care.
The justices however, questioned why DFPS had acted in the first case.
In its decision, the court emphasized that neither Attorney General Paxton nor Governor Abbott has the power or authority to direct DFPS to investigate the provision of medically necessary lifesaving health care for transgender youth as child abuse. But the court limited the order blocking all investigations to the specific plaintiffs who filed suit.
The Texas Tribune noted:
“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,” Friday’s ruling reads. “DFPS’s press statement, however, suggests that DFPS may have considered itself bound by either the Governor’s letter, the Attorney General’s Opinion, or both. Again, nothing before this Court supports the notion that DFPS is so bound.”
The ruling does note the myriad “informal mechanisms” through which elected officials can influence a state agency, but “ultimately, however, one department or another has the final say.”
DFPS employees have told The Texas Tribune that agency leadership has acknowledged that these investigations do not meet the current requirements for child abuse and have said policy would need to be generated to match the governor’s directives.
Trans activist Landon Richie who has been deeply involved in the efforts to mitigate the anti-trans actions by Texas lawmakers and has led protests against the transphobic actions by Texas Governor Greg Abbott and Attorney General Ken Paxton told the Blade Friday;
“To be clear, the Texas Supreme Court has not directed Commissioner Masters and DFPS to continue investigating parents of trans youth for child abuse. While the decision means now only the named plaintiffs in the lawsuit have protection, it reiterates that Attorney General Paxton’s opinion and Governor Abbott’s letter are not binding and not enforceable, meaning DFPS’s actions moving forward are at the discretion of Commissioner Masters only and not the state leadership’s directives. The Texas Supreme Court allowing for the district court to provide a temporary injunction is a good sign for people’s protection.
It bears reminding families in Texas and around the country that today’s decision (and yesterday’s regarding gender-affirming care at UT Southwestern and Texas Children’s) reaffirms what we already know: opinions are only opinions and the people in power cannot abuse that power to abuse trans people. We know decisions can change at a moment’s notice and that this fight will take years, but to our families and communities under attack, please remain strong and take a moment to breathe. We’re in this together. “
Shannon Minter, the Legal Director for the National Center for Lesbian Rights told the Blade: “This decision is a huge step forward for transgender kids and their families. The court made clear that the state child welfare authorities have no obligation to investigate these families and, rightly, expressed concern about why the Governor sought to interfere with parents’ decisions about their children’s medical care.”
The American Civil Liberties Union, ACLU of Texas, and Lambda Legal issued the following joint statement:
“Today’s decision is a win for our 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 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.
“Though the court limited its order to the Doe family and Dr. Mooney, it reaffirmed that Texas law has not changed and no mandatory reporter or DFPS employee is required to take any action based on the governor’s directive and attorney general opinion. By upholding the injunction, the court left in place the lower court’s decision that investigations based solely on the provision of medically necessary health care cause irreparable harm. 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.”
Texas Attorney General Ken Paxton saw the high court’s ruling as a victory vowing to keep up efforts to go after the families and healthcare providers for the transgender children tweeting:
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
The district court previously determined that the governor and DFPS’s directives targeting families of transgender youth were issued without proper authority, in violation of the Texas Administrative Procedure Act, the separation of powers requirements of the Texas Constitution, and the constitutional rights of transgender youth and their parents. Anyone who is affected by these orders can find legal, mental health, and other resources at txtranskids.org or the Lambda Legal help desk.
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