Law

Lawyers ask Texas appeals court to immediately block investigations into gender-affirming care

Attorneys fighting against a directive to investigate gender-affirming medical care as child abuse have asked a state appeals court to stop the practice as the case winds through the judicial process.

Nell Gaither, with Dallas-based organization Trans Pride Initiative, is concerned about lasting mental health effects on trans kids in Texas. Texas leaders have called gender-affirming care “child abuse,” and called on state organizations to investigate families and providers offering supportive health services.

The American Civil Liberties Union of Texas and Lambda Legal are asking a state appeals court to ensure that investigations into allegations of child abuse for doctors and families who provide gender-affirming care to trans youth are put on hold.

The request for an emergency order from the Texas Third Court of Appeals comes after a Friday order from Texas District Judge Amy Clark Meachum that temporarily blocked the investigations. The case came in the aftermath of a non-binding opinion issued by Texas Attorney General Ken Paxton last month that stated certain "sex-change" procedures and the prescribing of puberty-blockers to certain children is "child abuse" under Texas law.

Paxton's opinion was followed by a directive from Abbott to the Texas Department of Family and Protective Services "to conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas".

But Meachum ruled Friday that the directive went beyond the scope of Abbott's authority under the Texas Constitution and put a halt to the investigations while the case plays out in court. Paxton immediately appealed the decision and said in a tweet Friday night that: "Much-needed investigations proceed as they should" pending the appeal. His office has not responded to requests for comment about how the investigations are allowed to continue despite the injunction.

A spokesperson for the DFPS would only say the agency will "continue to follow the law" but would not elaborate on whether that means adhering to Abbott's directive or to the court's injunction.

"The attorney general appealed, and the attorney general has argued that the appeal potentially authorized DFPS to keep targeting and investigating families," said Brian Klosterboer, an attorney with the American Civil Liberties Union. "We disagree with that we believe the district court made it abundantly clear that what DFPS is doing is illegal and unconstitutional."

The ACLU and Lambda Legal filed the lawsuit on behalf of a state employee with a transgender child, her husband, and the teenager.

Paul D. Castillo, the senior counsel at Lambda Legal, said in a statement that the appeals court should act to ensure "families and mandatory reporters should not be subjected to the very same deprivation of rights and imminent injury that Friday's injunction was designed to prevent."

"It is unconscionable that AG Paxton is in effect demanding that DFPS continue investigations notwithstanding the fact that the courts have ruled against him three times, most recently granting a statewide injunction based on defendants' lawless and patently void executive actions," Castillo said.

The request for the emergency order comes days after Ron Beal, an attorney and expert in administrative law, filed an amicus brief with the court asserting that the appeal is a "waste of time" because, in part, the directive was illegally implemented, and proper procedures were not followed.

While the directive has led to fears about how families and medical providers will be investigated, it's also caused concern about its possible effects on the mental health of transgender children. Carter Brown, the executive director of the Carrolton-based National Black Trans Advocacy Coalition, said the state's efforts could be stigmatizing for some.

"As children, the way that we’re socialized is so important to the type of adult that we’ll grow to be,” Brown told KERA News earlier this month. “If everybody is telling you that you’re wrong or you don’t fit, or even more so, that you’ll be punished along with your parents for living the way that you are, what message is that for a child? How could that not be detrimental to anybody’s mental health?”

There has also been pushback from local prosecutors. Shortly after the directive was announced, district and county attorneys from around Texas said they were deeply disturbed by the order and said it wasn't a law enforcement priority. And just last week, dozens of corporations published a letter in the Dallas Morning News condemning the move. The signers included Apple, Johnson & Johnson, South by Southwest, IKEA and Google.

"The recent attempt to criminalize a parent for helping their transgender child access medically necessary, age-appropriate healthcare in the state of Texas goes against the values of our companies," the letter states.

Joseph Leahy of The Texas Newsroom contributed to this story.

Got a tip? Email Julián Aguilar at jaguilar@kera.org.You can follow Julián on Twitter @nachoaguilar.

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