Trans kids seek safety and freedom on Transgender Day of Visibility
States are passing anti-LGBTQ laws across the country, but that can’t erase the past, present or future of the transgender community.
Scott L. Hall and Cody Godwin, USA TODAY
AUSTIN, TEXAS – A new ruling from the Texas Supreme Court allows, but could discourage, Texas from launching new “child abuse” investigations against parents who provide adolescents with gender-affirming medical care.
Texas officials are now free to resume investigations, the Texas Supreme Court ruled Friday. But the order could also discourage Texas from doing so because the court moved to put on hold the specific investigation being challenged in the case.
Writing in an opinion siding with the majority of the court, Senior Justice Debra Lehrmann said Texas Department of Family and Protective Services rules prohibits the department from “investigating reports ‘based solely on … facilitating or providing gender-affirming care … where the only grounds for the purported abuse’ are ‘facilitation or provision of gender-affirming medical treatment.'”
Lawyers who specialize in LGBTQ rights hope that means the state agency will decline to resume or launch abuse investigations while the legality of Abbott’s directive is under court review.
Lambda Legal, which helped bring the lawsuit against Texas on behalf of the parents of a 16-year-old girl, called the decision a win because it put the state’s investigation into their family on hold. Although the ruling does not prevent Texas from launching investigations into other families, the state would be foolish to do so now because those families could also seek an injunction, said Omar Gonzalez-Pagan, counsel and health care strategist for Lambda Legal.
“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,” said Currey Cook, senior counsel with Lambda Legal.
“Are they going to do that? We don’t know. We hope so,” he said.
The ruling, which blocked a statewide injunction issued by an Austin judge in March, allowed the injunction against investigations to remain in place only for the family that sued.
Lower courts do not have the authority to provide relief from investigations to families who were not party to the lawsuit, the court said.
Friday’s ruling was limited to enforcing the injunction. The merits of the case — whether state-ordered “child abuse” investigations into transgender care violate the rights of families — remains before the Austin-based 3rd Court of Appeals.
Stephen Sheppard, former dean of St. Mary’s School of Law in San Antonio, said the court’s ruling clearly shows the justices oppose the enforcement of Abbott and Attorney General Ken Paxton’s February directive.
“Every member of the Texas Supreme Court has demonstrated a very intense scrutiny of the procedure sought by the Texas Attorney General,” Sheppard said. “None of them seem happy with the Texas Attorney General for a variety of reasons, and those reasons have generated different opinions.”
The ruling also shows the state high court seeks to protect transgender children and their parents from investigations into medial care, Sheppard said.
“Though that protection is not at this time permanent it is because it’s too early to grant final relief,” Sheppard added. “There’s not been a trial yet. But this is an indication of what all three levels of Texas courts believe (will be) the outcome after the trial.”
Since Abbott ordered the state’s child welfare agency to begin investigating parents of transgender children for “child abuse,” experts have repeatedly argued the directive carries no legal weight. Additionally, bills banning gender-affirming care for transgender youth have failed to become law in the Texas legislature.
On Friday, LGBTQ advocates again said that Texas law remains unchanged and child protective services are under no legal obligation to investigate.
“Though the court limited its order to the Doe family … 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,” American Civil Liberties Union, ACLU of Texas, and Lambda Legal said in a statement.
In a partial dissent, three justices said they would have blocked every aspect of the injunction, arguing that the proper time for a legal challenge would be when abuse investigators try to remove a child or take other action based on an investigation.
State officials said nine such investigations were underway when state District Judge Amy Clark Meachum issued the injunction, ruling that Gov. Greg Abbott exceeded his authority when he issued a February directive telling the state’s child-welfare agency to investigate gender-affirming treatment as abuse.
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The legal challenge was launched by parents, identified only as Jane and John Doe in court documents, who were under investigation for providing gender-affirming care to their 16-year-old. The mother worked for the Department of Family and Protective Services, which placed her on leave and initiated a child abuse investigation after she asked a supervisor to clarify what Abbott’s order meant for her family.
After a daylong hearing in March, during which Jane Doe testified about the strain and stigma caused by the child-abuse investigation, Meachum issued a temporary injunction that blocked investigations based solely on medical care for transgender youth. Such action by the state violated the constitutional rights of the families, the judge ruled.
Texas Attorney General Ken Paxton immediately appealed, an act that halted enforcement of the injunction under state rules on court procedures.
The Austin-based 3rd Court of Appeals eventually reinstated the injunction, blocking the abuse investigations until it could rule on the legality of Abbott’s directive and the Department of Family and Protective Services’ implementation of it.
Paxton next asked the state Supreme Court to block the injunction
Contributing: The Associated Press