Texas authorities can resume investigating supportive parents of transgender children for child abuse, although they are not legally required to do so, the state’s Supreme Court ruled Friday.
An appeals court had blocked the investigations while a lawsuit against the state is heard. But the Texas Supreme Court, ruling in an emergency appeal from state officials, asserted that the appeals court had “abused its discretion,” The New York Times reports.
However, the state cannot investigate the family and psychologist who sued, the high court said, as that would cause “irreparable harm.” And the court cast doubt on the authority of the governor to order the probes in the first place, saying whether to investigate any case is at the discretion of the state’s child welfare agency.
In February, Gov. Greg Abbott had ordered the Texas Department of Family and Protective Services to investigate parents who allow their children access to gender-affirming care as potential child abusers. He was going off a nonbinding legal opinion issued by Texas Attorney General Ken Paxton that characterized this care as abuse. The opinion has been criticized as unscientific and politically biased.
In March, Texas Civil District Court Judge Amy Clark Meachum granted a restraining order stopping the investigation of the family who filed the lawsuit, identified only as the Does, and psychologist Megan Mooney while their case is heard. The following week, she extended the restraining order statewide. An appeals court upheld her decision.
The Supreme Court, in allowing the investigations to resume, did rule that Abbott and Paxton could not “directly control” the DFPS probes. But it said the appeals court did not have the authority to halt them statewide.
“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.”
Because of this, the American Civil Liberties Union and Lambda Legal, representing the family who sued, were encouraged.
“Today’s decision is a win for our clients and the rule of law,” said a joint statement from the national ACLU, ACLU of Texas, and Lambda Legal. “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.”
Yet Paxton also praised the Texas Supreme Court ruling.
Paxton's tweet is misleading, as doctors do not recommend genital surgery for minors. Instead, young trans people are treated with puberty blockers and hormones. And numerous studies have demonstrated the positive effects of these treatments.
It remains unclear when and if the investigations will resume. "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," Currey Cook, senior counsel with Lambda Legal, told the Austin American-Statesman.
"Are they going to do that? We don't know. We hope so," he added.
The next step in the court case is for the appeals court will to “consider arguments from state officials and the plaintiffs over Judge Meachum’s decision,” the Times reports. “A trial, originally scheduled for July, is now on hold pending those arguments.”