Court Halts Abbott's Department of Family and Protective Services Investigation Directive
"Abuse" directive hits a roadblock
Families with transgender children in Texas won a reprieve on Friday, March 11, after a court temporarily blocked a statewide directive issued by Gov. Greg Abbott that redefined gender affirming care as presumed child abuse.
The action came in a lawsuit brought by the ACLU and Lambda Legal on behalf of an anonymous family with a 16-year-old transgender teen, who'd found themselves under investigation by the state. The child's mother, referred to in court filings as Jane Doe, was an employee of the Texas Department of Family and Protective Services and had expressed concern about the Feb. 22 directive. The agency then put Doe on leave and opened an abuse investigation into her family. Another plaintiff is Dr. Megan Mooney, a Houston psychologist who feared the directive could force "mandated reporters" such as herself to turn in clients simply for offering their trans kids appropriate care. Brian Klosterboer, an ACLU of Texas attorney who represents Mooney and the Doe family, said the state was moving against trans kids with alarming speed. "It's really scary that they've weaponized the Department of Family and Protective Services to play politics with the very lives of transgender young people and to terrorize families in this state," Klosterboer told the Chronicle before the hearing.
This latest round of attacks on trans rights in Texas began Feb. 18, when Attorney General Ken Paxton issued a nonbinding legal opinion which stated that certain forms of gender affirming health care, when performed on minors, "can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code." Abbott followed this up four days later with his directive, which ordered DFPS to begin investigating parents and providers that have allowed trans youth to receive affirming care, including both surgery and hormonal treatments. In their lawsuit, the plaintiffs argued that Abbott's directive circumvented normal legislative procedures and violated the fundamental rights of Texas families. "What the government and DFPS are doing is unlawful and void," Klosterboer said. "They don't have the constitutional authority to trample on the rights of Texas parents and we hope that the state will see through this egregious abuse of state power."
Medical experts almost universally agree that providing gender affirming care for trans young people improves their mental and physical well-being, including dramatically reducing incidence of suicide. Doctors who treat trans kids also emphasize that the use of surgery on young people is exceedingly rare. More commonly, trans kids receive puberty blockers or hormones, under close supervision from a doctor, as well as psychological support through the social aspects of transition. But Texas Republicans haven't let sound medical science stand in the way of turning this into a hot-button issue.
In all, the court heard about seven hours of testimony from prosecution witnesses before Judge Amy Clark Meachum issued the restraining order, including plaintiffs Dr. Mooney and Jane Doe (who reportedly testified in a wig). Meanwhile, dozens of trans people, family members, and allies gathered to give comments at a separate DFPS hearing, where volunteers read letters from young people who could not safely attend.
Some of the most dramatic court testimony came at the start of the hearing, when Randa Mulanax, a Child Protective Services investigations supervisor, explained the profound effects the directive had already had on her agency. Under normal procedures, she said, CPS investigators receive a great deal of leeway in investigating abuse claims, including deciding that a claim doesn't merit any investigation at all. But with Abbott's anti-trans directive in place, CPS agents were forced to treat every report involving a trans kid, however specious, as potential abuse and launch thorough investigations, even having agents visit students at their schools. Further, agents had been instructed to avoid discussing the cases in writing, a move Mulanax found unethical and disturbing. She said the directive led her to resign from her post after six years at the job. "I've always felt ... the department has children's best interest at heart and families' best interest at heart," she testified. "I no longer feel that way with this order."
During her testimony, Mulanax said she'd found seven families under investigation by CPS, though a Dallas Morning News investigation found two more. In our interview, Klosterboer observed that "DFPS has many other things that they're working on such as the foster care crisis in the state of Texas, and for them to be spending any time and energy investigating families simply for taking their kids to the doctor and getting the best possible medical care, in line with best practices and decades of scientific research, it's beyond cruel and pointless."
Judge Meachum seemed to agree, ruling against the state immediately after the end of closing arguments. This hearing was just a preliminary one, with the case due back in court July 11 when Meachum will hear arguments about whether to ditch the directive entirely. According to the judge, her restraining order should apply until that hearing, and even through the anticipated appeal to the Texas Supreme Court. The state, however, filed an immediate appeal to the injunction, with Ken Paxton claiming on Twitter that this meant DFPS investigations can continue. Advocates for trans rights dispute this, saying the agency is enjoined from investigations until the case concludes or the injunction is overturned.
During a March 14 press conference, Ricardo Martinez, executive director of Equality Texas, condemned Paxton's disregard for court orders. "As we know, the attorney general has a troubled history following the law – there's no lies here," he quipped. "If any family is contacted by DFPS notwithstanding the court's decision, they should reach out to ACLU and Lambda Legal's help desk immediately."