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Judge to Weigh Blocking Texas Probes of Transgender Kids’ Care

March 10, 2022, 10:35 AM

A Texas judge could decide as early as Friday whether to block the state from investigating parents of transgender kids for alleged child abuse.

Civil rights lawyers have asked for a statewide injunction, but Texas says the court doesn’t have the power to stop its child welfare agency from investigating parents who seek out gender-affirming care for their kids, which Attorney General Ken Paxton (R) said in a Feb. 18 opinion can constitute child abuse.

Families are already being contacted by the Texas Department of Family and Protective Services (DFPS) and the state’s largest children’s hospital announced this week it’s pausing hormone therapies in response to Texas Gov. Greg Abbott’s (R) Feb. 22 letter telling state officials to investigate this kind of care. Since doctors, teachers, and nurses are legally required to report child abuse, the letter warned they could face criminal penalties if they don’t alert the agency.

“We’re definitely hearing of lots of folks that have had contact with the agency, and we also know that major medical providers, including Texas Children’s Hospital, are feeling like they’re in an impossible position,” said Karen Loewy, senior counsel at Lambda Legal, which has teamed up with the American Civil Liberties Union to sue Abbott, the state’s child welfare agency, and its commissioner.

Gender-affirming care for children with gender dysphoria often includes puberty blocking drugs, which are reversible. Sex hormone treatment isn’t recommended until around the age of 16 when a minor has the mental capacity to give informed consent, under the Endocrine Society’s medical guidelines. And genital surgeries aren’t recommended, and typically aren’t available, until a patient has reached the age of 18.

Judge Amy Clark Meachum of the Texas District Court of Travis County issued a limited order March 2 that stopped the state from investigating the one family and licensed psychologist whom ACLU and Lambda Legal are suing on behalf of.

Texas appealed, arguing Meachum implicitly denied its challenge to the court’s ability to hear the case by granting this emergency relief, but the appeals court disagreed and dismissed the state’s appeal on Wednesday.

Meachum will hear arguments Friday over whether to grant broader relief that stops the agency from investigating parents across the state. The hearing is likely to focus in part on the state’s argument that the court doesn’t have the power to decide this case.

Pleas to the Jurisdiction

These pleas to the jurisdiction, as they’re called in Texas, win all the time, said Charles “Rocky” Rhodes, a professor of state and federal constitutional law at the South Texas College of Law Houston.

“I don’t think this one is as strong as the ones that have prevailed, but this is something that the state oftentimes wins and it’s routine for them to make this argument,” he said.

Texas is arguing the court is powerless because the governor and the agency are acting within their legal authority to interpret state law.

“Defendants seek only to follow the law,” the state attorney general’s office said in its filing. “The Court has no jurisdiction to enjoin DFPS from undertaking child abuse investigations and ignoring entirely the information from mandatory reporters who bring allegations of child abuse to investigators’ attention.”

But Loewy argues the governor has created an end run around the proper way to change Texas law in issuing this directive.

“The agency has jumped to implement it, and is implementing it aggressively, and is doing so in a way that creates a presumption of child abuse whenever anyone has a trans kid,” she said.

Chilling Effect

The Texas state legislature failed to ban gender-affirming care for minors as other states have done. Arkansas passed legislation, but it was quickly blocked by a court in July. Idaho is considering a bill that threatens to send violators to prison.

Critics have called the timing of the attorney general’s opinion and governor’s directive suspect since they both came within a month of the Texas Republican primary on March 1.

“It was red meat for the Republican base, which is certainly something that could help the governor in firming up his position with the Republican base but probably more so it was important for Ken Paxton, who was facing some real serious primary challengers in the lead-up to the primary on March 1,” said Anthony Michael Kreis, a professor at Georgia State University College of Law, who teaches constitutional law, civil rights, and anti-discrimination.

In a letter to the U.S. Justice Department on Tuesday, New York State Attorney General Letitia James called on the Biden administration to investigate whether Abbott’s recent directive violates federal civil rights law.

“Gender-affirming treatment, like any other health care, is medical care that helps trans children grow up healthy and happy,” she said. “It is not child abuse.”

Lambda Legal said Abbott’s actions have already had a chilling effect on the availability of some transgender kids in the state to get care. In a statement Tuesday, Texas Children’s Hospital said it decided to pause hormone-related prescription therapies for gender-affirming services after assessing the attorney general’s and governor’s actions.

“This step was taken to safeguard our health-care professionals and impacted families from potential criminal legal ramifications,” the hospital said.

The Texas Attorney General’s Office did not respond to a request for comment.

The case is Doe v. Abbott, Tex. Dist. Ct., No. D-1-GN-22-000977.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com