JudicialState May Continue Investigating Gender Transition as Child Abuse, Texas Supreme Court Rules

The court decided to preserve the order that stops DFPS from investigating abuse in the family that sued, a decision that split the justices.
May 13, 2022
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The Supreme Court of Texas ruled on Friday that the State of Texas may continue investigating child gender transition as abuse except in the family that sued over an investigation into their own child.

The high-profile case began as a lawsuit against Governor Greg Abbott and Texas Department of Family and Protective Services (DFPS) Commissioner Jaime Masters, filed by the anonymous parents of a child with gender dysphoria receiving puberty blockers and other hormonal treatments meant to aid transition. The judge in the case, Travis County District Court Judge Amy Clark Meachum, halted the DFPS investigation into this family and later blocked the agency from investigating these procedures as child abuse anywhere in the state.

Texas Attorney General Ken Paxton appealed this order, which automatically superseded Meachum’s injunction. However, the appellate court reinstated the injunction preventing any DFPS investigations around Texas.

In a unanimous opinion, the court reversed this order of the appellate court, thereby allowing the DFPS to continue investigating the use of puberty blockers and other gender transition procedures around the state.

However, the court decided to preserve the order that stops DFPS from investigating abuse in the family that sued, a decision that split the court.

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In other words, the Supreme Court agreed that the lower appellate court did not have authority to stop abuse investigations around the whole state. A majority of the Supreme Court decided that the appellate court did have authority to stop the investigation into the plaintiffs.

The appellate court reinstated the statewide block under Rule 29.3 of the Texas Rules of Appellate Procedure. The Supreme Court of Texas said this rule can only apply to the parties in the case, not the entire state.

“The text of Rule 29.3 plainly limits the scope of the available relief to that which is necessary to preserve the parties’ rights,” the Supreme Court wrote.

“Just as the Governor lacks authority to issue a binding ‘directive’ to DFPS, the court of appeals lacks authority to afford statewide relief to nonparties. The court of appeals abused its discretion by using Rule 29.3 to issue a statewide order.”

At the outset of the unanimous opinion, the Supreme Court observed that the governor has no authority over DFPS investigations.

“Although this case comes to us in its early stages, it appears already to have been infected by a misapprehension of the proper roles played by the various government actors involved,” the opinion reads.

DFPS decided to investigate child gender transition procedures as child abuse earlier this year after Abbott, bolstered by an official opinion by Paxton, said current Texas law considers these procedures to be abusive.

The Supreme Court of Texas said Paxton’s opinion and the letter from Abbott that followed do not legally control DFPS.

“In sum, we are directed to no source of law obligating DFPS to base its investigatory decisions on the Governor’s letter or the Attorney General’s Opinion,” the Supreme Court wrote.

“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.”

In other words, the directives and opinions by Abbott and Paxton did not change the agency’s discretion to investigate child abuse.

While all the justices of the Supreme Court of Texas agreed that the appellate court lacked authority to maintain a statewide injunction and that the governor lacked authority to issue a binding directive to DFPS, three justices — Jimmy Blacklock, Brett Busby, and John Devine — would have allowed DFPS to continue investigating the family that sued.

“The court of appeals’ injunction prohibiting any investigation of these matters by DFPS was an abuse of discretion, including as to the plaintiffs,” the dissent reads.

As the justices note, the DFPS can investigate child abuse but cannot remove the child from the family or otherwise interfere until a court rules that it can take action.

“The court of appeals’ order, however, would prohibit DFPS from even beginning an investigation to determine whether cause for concern meriting the pursuit of court orders might exist. In other words, the injunction amounts to one court ordering DFPS not even to look into whether it should seek orders from another court,” Blacklock wrote for the minority.

“All involved are entitled to their opinions, but the Legislature has assigned to DFPS — not to the Governor or to the plaintiffs’ experts and amici — the authority to investigate such matters on behalf of the State. In my view, an injunction preemptively prohibiting the executive branch from even investigating the possibility that injury to a child may result from the disputed treatments is likely beyond the proper scope of the judicial power.”

The family suing DFPS and the governor maintain that the agency’s newfound attention to child gender transition amounted to a new rule adopted without due process.

There were several bills filed in the 2021 Texas legislature that would have explicitly banned these procedures in state law, but all died without receiving a vote on the House floor.

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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.