Inside the Fast-Moving Litigation Challenging Texas’ Anti-Trans Policy

FILE PHOTO: Donald Trump holds a rally in Conroe, Texas
Texas Attorney General Ken Paxton
REUTERS/Go Nakamura

After a judge temporarily halted investigations into families of trans children in Texas, Attorney General Ken Paxton appealed the ruling and said it was “frozen,” representing the latest development surrounding a legal battle over a directive issued by Governor Greg Abbott.

The issue first unfolded after the Texas legislature defeated a bill that would have made it a crime for parents to authorize or doctors to perform any gender-affirming treatment on minors. A legislative supporter of the defeated bill sought an opinion from Paxton about whether parents who provide such treatment for their children, as well as the doctors who performed it, could be found guilty of “child abuse” under existing state law.

Paxton issued Opinion No. KP-401, answering the legislator in the affirmative. Abbott issued a letter, and the state’s Department of Family and Protective Services (DFPS) issued documents on February 22 in which the governor directed DFPS to launch investigations of this so-called “child abuse” and DFPS purported to adopt formal policies consistent with the governor’s directive. The rule also required health care providers to report such suspected “child abuse” to the department.

The consequences for parents, doctors, and most particularly transgender teens could be momentous, including criminal prosecution and punishment for parents and doctors, in addition to jeopardizing professional licenses and jobs. Furthermore, the state could have power over the custody of transgender children, whose treatments in process might be abruptly halted with significant adverse medical and psychological effects.

One of the first families to fall victim to this outrageous move was a DFPS employee whose teenage transgender daughter is receiving treatment. The employee was suspended from her job and an investigation was launched against her family and their medical provider. The ACLU and Lambda Legal joined forces with the Austin law firm Baker Botts L.L.P., filing a lawsuit in the Travis County District Court seeking an immediate halt to any enforcement action against the family, and a temporary injunction against enforcement generally while the case is pending. District Judge Amy Clark Meachum, persuaded of the urgency of the situation, quickly issued a temporary restraining order (TRO) on March 2.

Judge Meacham wrote in her TRO, “The court finds Jane Doe [the DFPS employee] has been placed on administrative leave at work and is at risk of losing her job and that Jane, John [her husband] and Mary Doe [the transgender daughter] face the imminent and ongoing deprivation of their constitutional rights, the potential loss of necessary medical care, and the stigma attached to being the subject of an unfounded child abuse investigation. The Court further finds that if placed on the Child Abuse Registry, Jane Doe could lose the ability to practice her profession and both Jane and John Doe could lose their ability to work with minors and volunteer in their community.”

The lawsuit also includes as plaintiff Dr. Megan Mooney, a licensed psychologist who works with trans youth. The court finds that she “could face civil suit by patients for failing to treat them in accordance with professional standards and loss of licensure for failing to follow her professional ethics if she complies with Defendants’ orders and actions. If she does not comply with Defendants’ orders, Dr. Mooney could face immediate criminal prosecution, as set forth in the Governor’s letter.”

Judge Meachum’s order scheduled a March 11 hearing to determine whether the plaintiffs should get a more wide-ranging temporary injunction that would ban any enforcement of the governor’s directive and DFPS’s new policy against anybody pending a trial on the merits of the plaintiffs’ claims. In responding to the lawsuit, the state was arguing that the court had no jurisdiction to interfere with the state’s law enforcement activities.

The Biden Administration promptly reacted to the unfolding situation, with the Office for Civil Rights (OCR) of the US Department of Health and Human Services issuing on March 2 a “Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy.” The notice asserts the medical consensus that “gender-affirming care for minors, when medically appropriate and necessary, improves their physical and mental health.” The notice, directly addressing the Texas situation and similar legislative proposals in other states, says, “Attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous.” The notice makes clear the OCR, “as a law enforcement agency,” will take steps to enforce the anti-discrimination provisions of the Affordable Care Act and informs people with complaints about denial of treatment to contact OCR. The notice also asserts in boldface, underlined text that HIPAA, a federal statute, “prohibits disclosure of gender-affirming care that is [protected health information] without an individual’s consent except in limited circumstances.”

The state immediately appealed Judge Meachum’s March 2 TRO, but was rebuffed by the Court of Appeals, which found that the TRO was not an appealable order, in an opinion issued on March 9.

On March 11, Judge Meachum held the hearing and issued the requested temporary injunction, but this time stating a more expansive theory than what she mentioned in her TRO. In addition to the reference to “constitutional” claims in the TRO, she wrote that “there is a substantial likelihood that Plaintiffs will prevail after a trial on the merits because the Governor’s directive is ultra vires, beyond the scope of his authority, and unconstitutional. The improper rulemaking and implementation by Commissioner Masters and DFPS are similarly void.” (Ultra vires is a legal term for “beyond the powers” of those taking an action.)

The judge also issued a separate order rejecting as “not founded” the state’s claim that she lacked jurisdiction to hear this case. She ordered that a trial on the merits be held on July 11, 2022, and directed the Clerk of the Court to “issue a show cause notice to Defendants to appear at the trial.” Since Paxton and Abbott, as well as the Commissioner of DPFS, Jaime Masters, are named defendants in the case, this order would apparently require their personal appearance at the July 11 trial, where they can be questioned under oath.

Unfortunately, under Texas civil procedure a temporary injunction against the state government and an order rejecting the government’s argument that the court lacks jurisdiction over a case can be immediately appealed. Paxton’s office filed an appeal on March 12, stating that “upon filing of this instrument, the March 11, 2022 orders are superseded.”

Assuming this assertion is correct, Judge Meachum’s trial order, as well as the temporary injunction, are not now in effect, pending a ruling on this appeal by the Third District Court of Appeals. That court ruled with alacrity against the appeal of the TRO, and perhaps in light of the urgency of the situation, it will take prompt action on this appeal as well. Meanwhile, DFPS indicated that it will go forward with investigations, and there were press reports that several more families are being targeted for investigation.

Paxton also posted on Twitter, writing, “My appeal is now on file. Thankfully, Democrat judge’s order permitting child abuse is frozen. Much-needed investigations proceed as they should. This fight will continue up to the Supreme Court. I’m ready for it.”

The plaintiffs do have a strong constitutional claim. The US Supreme Court has repeatedly ruled that under the Due Process Clause of the 14th Amendment parents have constitutional rights regarding the raising of their children, and any interference with those rights requires strong evidence from the state that the parents are placing their children in danger. Furthermore, the separation of powers under the Texas constitution, just as under the federal constitution, places substantial limits on the ability of executive branch officials to create legal rules without legislative authority.

Courts can engage in statutory interpretation, as the US Supreme Court did in Bostock v. Clayton County in 2020 when it interpreted the federal Civil Rights Act’s ban on employment discrimination because of sex as including sexual orientation and transgender status discrimination, but this is a recognized part of the judicial function, which is distinct from the authority of legislatures to make laws or to establish administrative agencies that are empowered to interpret and enforce those laws. The degree to which actors such as the attorney general, the governor, or an administrative agency are free to find new criminal prohibitions that interfere with parental constitutional prerogatives without specific legislative authorization poses a serious separation of powers question, which ultimately may have to be answered by the Texas Supreme Court. The federal constitutional rights of parents coming into play in this case may require resolution by the US Supreme Court as well.

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