Texas Supreme Court Gives Trans Kids a Partial Win

A glass half full

Gov. Greg Abbott smiles with Attorney General Ken Paxton (l) and Lt. Gov. Dan Patrick in 2017 (Photo by Jana Birchum)

The Texas Supreme Court last week criticized the state's governor and attorney general for bypassing normal policymaking procedures in their attempt to target families that include transgender young people. This came as part of a complex, nuanced decision in the ongoing lawsuit over Gov. Greg Abbott's trans "abuse" directive, which indicates the court may be skeptical of the state's standing in the case.

While neither side got exactly what they'd wanted from the May 13 decision, Shelly Skeen, a senior attorney at Lambda Legal representing the plaintiffs, told the Chronicle that the ruling was overall a win for trans young people and their families. The court emphasized the importance of the rule of law, which the state has tried to ignore. "The law is clear and the law says parents have to provide medically necessary care for their kids, and to not do so is child abuse," she told us. Medical experts overwhelmingly agree that providing age-appropriate care for transgender young people improves their lives and greatly reduces incidences of suicide.

Attorney General Ken Paxton sought to dismiss the suit entirely, but the court disagreed. It upheld a restraining order against Child Protective Services investigations of families with trans kids, but also narrowed the scope of the restraining order so that it no longer applies to all families in Texas, just the anonymous family and Houston-based psychologist involved in the lawsuit. This last may seem like a defeat for trans rights, and that's how many media outlets interpreted the decision (such as The New York Times, whose headline read "Texas Court Allows Abuse Inquiries of Parents of Transgender Children"). According to Skeen and other legal experts, that minimizes the actual text of the decision, which sharply criticizes the state government. On Twitter, Chase Strangio, the ACLU's deputy director for transgender justice, lamented the misleading headlines. "No family should be investigated solely because they are treating their adolescent child with medically prescribed care for gender dysphoria," Strangio tweeted. "That is the takeaway."

“No family should be investigated solely because they are treating their adolescent child with medically prescribed care for gender dysphoria. That is the takeaway.” – The ACLU’s Chase Strangio

Indeed, the judges emphasized in clear terms that Paxton's original legal opinion on gender affirming health care, issued late last year, is legally nonbinding, and that Abbott overstepped his abilities as governor with his subsequent attempts at policymaking: "Unlike the federal constitution, the Texas Constitution does not vest the executive power solely in one chief executive. … Unlike some executive orders of the Governor that are afforded binding legal effect by statute, the Governor's letter cites no legal authority that would empower the Governor to bind state agencies … and we are directed to none." Advocacy groups in Texas say the restraining order was only narrowed on a technicality, and that they are now waiting to see how the Department of Family and Protective Services reacts to the ruling. About a dozen families were under investigation prior to the restraining order.

It's important to remember that this is all just legal maneuvering before the main event. The suit began in March before District Judge Amy Clark Meachum here in Travis County, but the case awaits further rulings from the 3rd Court of Appeals before she'll actually be able to hear it. And regardless of her decision, the case is likely to be appealed back to SCOTEX, in a process Skeen said could easily continue into 2023. "We haven't gotten to the merits of our claims yet; we're not even there," she said. "Right now, all roads lead back to the trial court."

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