Texas Blocked From Investigating Transgender Teen’s Parents

(Bloomberg Law) -- A Texas judge temporarily blocked the state's child protective services agency from investigating the parents of a transgender teen for alleged child abuse.

Judge Amy Clark Meachum of the Texas District Court of Travis County on Wednesday issued a limited temporary restraining order against the governor and the Texas Department of Family and Protective Services, stopping them from investigating the parents of a transgender teen, the teen, and a licensed psychologist who brought a lawsuit challenging the state's recent actions.

The request came in litigation over the letter Texas Gov. Greg Abbott (R) issued Feb. 22 directing the state's child welfare agency to investigate families for child abuse if they're suspected of seeking gender-affirming care for a child with gender dysphoria. The letter followed an unprecedented opinion from Texas Attorney General Ken Paxton (R) that said gender-affirming care, including “sex change” procedures and puberty-blocking drugs, can constitute child abuse when performed on minors.

In a lawsuit filed Tuesday, the American Civil Liberties Union and Lambda Legal alleged Abbott, the Department of Family and Protective Services, and the agency's commissioner are violating the constitutional rights of transgender children by denying them equal protection under law.

“Their actions caused terror and anxiety among transgender youth and their families across the Lone Star State and singled out transgender youth and their families for discrimination and harassment,” the groups said in their request for the court order.

The governor's directive said teachers, doctors, and the general public are all required to report any person who provides or is suspected of providing medical treatment for gender dysphoria or risk criminal penalties.

In her order Wednesday night, Meachum scheduled a hearing for March 11 to decide whether to issue a temporary injunction that would block the governor, the agency commissioner, and DFPS's actions more broadly.

President Joe Biden in a statement Wednesday criticized the Texas order and said new measures from the Department of Health and Human Services would help protect families of transgender children.

“This is government overreach at its worst. Like so many anti-transgender attacks proliferating in states across the country, the Governor's actions callously threaten to harm children and their families just to score political points. These actions are terrifying many families in Texas and beyond. And they must stop,” Biden said.

The HHS Office for Civil Rights on Wednesday night issued guidance that it said provided additional information on federal civil rights protections and health privacy laws that apply to gender-affirming care. The office said it will “continue working to ensure that transgender and gender nonconforming youth are able to access health care free from the burden of discrimination.”

Opinion of Law

During a hearing earlier Wednesday over the request for a temporary restraining order, Texas Assistant Attorney General Ryan Kercher said the ACLU and Lambda Legal wrongly assert that the attorney general's opinion requires the investigation of trans youth simply because they are transgender.

The opinion says gender-affirming care can constitute child abuse under the law—not that gender-affirming care treatments are necessarily or per se abusive, he said.

“It's improper and incorrect to characterize the conclusions in the AG opinion as saying that they are calling for an investigation of every trans youth or every young person undergoing these kinds of treatments and procedures,” he said.

“The AG opinion does not change the law. It's an opinion about what the law is.”

Meachum asked Kercher what the purpose was of the governor's directive if not to change the way the child welfare agency was operating.

“How often does the governor send DFPS directives on doing investigations and types of investigations they should do?” she asked.

The ACLU and Lambda Legal are suing Abbott and the agency on behalf of an employee at the department, her husband, and their transgender teen, as well as a licensed psychologist who's required to report child sex abuse under Texas law.

Paul Castillo, an attorney at Lambda Legal, told Meachum he's aware of at least two other families who are being investigated in addition to the parents and teen he's representing.

The case is Doe v. Abbott, Tex. Dist. Ct., No. D-1-GN-22-000977, 3/2/22.

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