USA: Texas Supreme Court: state may investigate gender affirming care as child abuse
The Texas Supreme Court Friday ruled that state agencies in Texas may investigate gender affirming care as child abuse but that the Department of Family and Protective Services (DFPS) is not bound to undertake any such investigations.
On February 18, Attorney General Ken Paxton issued an opinion stating that many forms of gender affirming care “can legally constitute child abuse” under Texas law. On February 22, Governor Greg Abbott directeddirected state agencies in Texas to investigate gender affirming care as child abuse in accordance with Paxton’s opinion. The ACLU and Lambda Legal filed a lawsuit on behalf of the Does, a family with a transgender daughter, and Dr. Megan Mooney, a doctor who provides care to transgender youth.
On March 2, a district court implemented a temporary injunction halting any investigations. Texas took an interlocutory appeal, superseding the injunction. However, a court of appeals issued a temporary order on March 21 “reinstating the temporary injunction in its entirety.” The state sought relief from the supreme court from that order.
The supreme court recognized that, under Rule 29.3 of Texas appellate procedure, the court of appeals may make temporary orders “to preserve the status quo and prevent irreparable harm.” However, the rule “plainly limits the scope of the available relief to that which is necessary to preserve the parties’ rights.” Therefore, the supreme court ruled that portions of the injunction which apply to “any and all persons” in Texas are invalid.
The court also noted that Abbott’s letter cited “no legal authority that would empower the Governor to bind state agencies with the instruction contained in the letter’s final sentence, and we are directed to none” although DFPS may have believed that it was bound to follow the directive.
As a result, the court explained:
[W]e are left with (1) a court of appeals order that protects only the plaintiffs as against DFPS and its Commissioner’s actions, and not as against the Governor; (2) a nonbinding Attorney General Opinion; (3) a nonbinding statement by the Governor; and (4) a state agency, DFPS, with the same discretion to investigate reports of child abuse that it had before issuance of OAG Opinion No. KP-0401 and the Governor’s letter.
The ACLU, ACLU of Texas and Lambda Legal issued a statement calling the decision “a win.” The organizations commented, “[t]hough 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.”
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