Texas can resume investigating parents of children receiving gender-affirming care for "child abuse," though it is not required to do so, the state's highest court ruled Friday.
In the unanimous order, the Texas Supreme Court found that a lower court overstepped its authority when it reinstated a district court's temporary injunction blocking the Department of Family and Protective Services from acting on a Feb. 22 letter from Gov. Greg Abbott instructing the agency to conduct "thorough investigations" into trans youth getting gender-affirming care.
Abbott's directive came after the state's attorney general, Ken Paxton, issued an opinion deeming that "elective" gender-affirming treatments, such as mastectomies, puberty-blocking drugs, and sex reassignment surgery, could "constitute child abuse" under Texas law. But the letter was legally dubious and nonbinding, experts said.
Though the high court did not rule on the merits of the lawsuit brought by the mother who sued Abbott, DFPS, and its commissioner, it said the department was not bound by the governor's letter and that it's up to the agency to decide whether to investigate child abuse claims.
"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 order states.
The justices were split, however, on the question of whether the appeals court could stop the state from continuing its investigation into the plaintiffs in the case. But the majority decided that it could, acknowledging the lower court's authority to "prevent irreparable harm to the parties" while a case is pending.
In this case, a DFPS employee, who is identified only as Jane Doe in court papers, was placed on administrative leave on Feb. 23, the day after Abbott's letter, according to the complaint. Two days later, an investigator showed up at the house where she lives with her child, who the lawsuit states has been diagnosed with gender dysphoria and is receiving "medically necessary care," including puberty blockers and hormone therapy.
In a statement Friday, Lambda Legal, the American Civil Liberties Union, and the ACLU of Texas, which are representing Jane Doe, said that while the order only partially upheld the injunction, the court's decision was "a win" for their clients and for "the rule of law."
“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 organizations said.
The statement added that given the court's order it "would be unconscionable" for the agency to resume pursuing investigations into parents of children receiving gender-affirming care while their lawsuit is still pending.
"We will not stop fighting the protect the safety and lives of transgender youth here in Texas," the organizations said.