Texas appeals court upholds block on abuse investigations into families of trans minors

An Austin-based appellate court on Friday upheld several lower court rulings blocking Texas from investigating several families that provided gender-affirming medical care to their children for child abuse.

The 3rd Court of Appeals' 67-page order in PFLAG v. Abbott preserves two 2022 temporary injunctions that bar the Texas Department of Family and Protective Services from pursuing such inquiries into families who are members of PFLAG National, an LGBTQ+ rights group.

The court's ruling in another 2022 case, Doe v. Abbott, protects a family and a psychologist from an investigation by the department while a final ruling is pending, but it lets Gov. Greg Abbott off the hook for the lawsuit.

"In addition to their right to be free from an unlawful government investigation, the families of transgender children have the fundamental right to direct their children’s medical care without fear that they will be investigated and their children have the right to receive that medical treatment," Justice Gisela Triana wrote in the decision.

The legal battle centers around probes that the Department of Family and Protective Services opened after Abbott directed the agency on Feb. 22, 2022, to "conduct a prompt and thorough investigation" of any reports that minors have undergone "sex change" procedures, building upon an opinion days earlier from Texas Attorney General Ken Paxton that supposedly expanded the legal definition of child abuse to include gender-affirming medical care.

In its decision, the appeals court defined gender-affirming medical care as the use of puberty blockers and hormone therapy, for the treatment of diagnosed gender dysphoria, a condition characterized by "clinically significant distress" that is experienced by some people whose gender identity doesn’t match their sex at birth.

Paxton claimed in his opinion that removal of reproductive organs or genitals is standard care for trans youth, a contention that medical professionals and other experts swiftly debunked as false.

Advocates for the families and PFLAG, which has 17 chapters in Texas, argued that gender-affirming care can be lifesaving and highlighted that the ruling prevents the state from separating transgender children from their families while it is in effect.

“Nothing could be further from abuse than parents loving and supporting their transgender children," Ash Hall, policy and advocacy strategist with the ACLU of Texas, said in a statement. "This decision is another much-needed victory for trans youth and those who love and support them.”

PFLAG v. Abbott injunctions affirmed

Chief Justice Darlene Byrne and Justices Rosa Lopez Theofanis and Triana of the 3rd Court of Appeals, all Democrats, participated in the ruling.

PFLAG National and three families being investigated by the family services department under the governor's directive sued the state agency and Abbott in June 2022.

They argued that the state had discriminated against transgender youth and denied parents the right to direct care for their children, and PFLAG and the families contend that the department failed to comply with the Administrative Procedure Act.

The Department of Family and Protective Services has argued that no new rules were needed to allow it to investigate families for child abuse that provided such medical care.

Travis County state District Judge Amy Meachum granted two injunctions blocking the department from continuing to investigate those families solely based on reports that their children were prescribed gender-affirming medical care — one for two anonymous families (Voe and Roe) and another for PFLAG members and the Briggles family.

Meachum based her ruling on her finding that the department's rule implementing Abbott's order "was given the effect of a new law or new agency rule, despite no new legislation, regulation or even valid agency policy," and that it went beyond the agency's authority and "enabling statute."

The three appeals court justices affirmed Meachum's orders in their entirety.

Paul D. Castillo, senior counsel at Lambda Legal, celebrated the ruling Friday. Lambda Legal filed the lawsuits in conjunction with the ACLU of Texas, Jon L. Stryker and Slobodan Randjelović LGBTQ & HIV Project, the ACLU Women’s Rights Project, and the law firm of Baker Botts LLP.

“The Court recognized yet again that being subjected to an unlawful and unwarranted investigation causes irreparable harm for these families who are doing nothing more than caring for and affirming their children and seeking the best course of care for them in consultation with their medical providers," Castillo wrote in a statement.

Abbott, Paxton and the Department of Family and Protective Services did not respond to American-Statesman requests for comment Friday.

Court upheld injunction but vacated ruling in Doe v. Abbott

The appeals court on Friday also issued an appellate ruling in Doe v. Abbott, a case brought by the parents of a transgender adolescent diagnosed with gender dysphoria and by Dr. Megan Mooney, a psychologist who treats transgender children.

The lawsuit, which was filed soon after the Department of Family and Protective Services announced it would follow Abbott's directive, sought injunctive relief against the new rule that would apply for families across the state. That relief was at least temporarily stymied by the Texas Supreme Court when it ruled that a lower court did not have the authority to issue a statewide injunction in May 2022. The merits still have not been litigated in trial, and the Supreme Court did not rule on the merits of the case.

Justices Edward Smith, Byrne, and Triana upheld an injunction stalling an investigation that the department pursued into the Doe family based on gender-affirming care.

But they also diverged from the lower court in vacating its ruling against the governor on the basis that the plaintiffs did not have standing to sue him or Paxton, only the department.

"The Governor and Attorney General were free to share their legal and policy views, but the Department 'was not compelled by law to follow them,'" Smith wrote, quoting the Texas Supreme Court opinion.

Next steps

The state could choose to appeal the appellate court's decisions to the conservative Texas Supreme Court. If it doesn't, the cases would likely return to the Travis County state District Courts that made the original rulings, where they will proceed to trial on the merits.

In the meantime, families that are PFLAG members cannot legally be investigated by the family services department for providing medical care to transgender youths.

The cases are among several that are ongoing relating to the state's effort to eradicate gender-affirming care for minors, including a Texas Supreme Court case on Senate Bill 14, which lawmakers passed in May 2023 to make such medical procedures illegal in the state.

"It's hard not to see (the DFPS rule) as anything but outrageous targeting of the parents of trans kids who are just trying to make the best decision they know how for their own children's health and well-being, and they're doing this in conjunction with their medical providers, and that's exactly what you want parents to do," Karen Loewy, senior counsel and Director of Constitutional Law Practice for Lambda Legal, said in a phone interview with the Statesman. "It's great to see that the court understood the harms."

More:Travis County district judge blocks Ken Paxton's demands for PFLAG gender-affirming care records

You can read the court's ruling in PFLAG v. Abbott below.