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No one has ever accused the Texas judiciary of an excess of bravery. And after today’s mush-mouthed opinion on the governor and attorney general’s effort to criminalize healthcare for transgender children, they’ll continue to not say that.

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The action was prompted by an Advisory Opinion issued by Attorney General Ken Paxton in February purporting to “help” trans kids by defining their medically supervised gender affirming care as “child abuse.” Governor Greg Abbott followed up by ordering all state agencies to begin initiating investigations of suspected “abusers” who provide medical care for trans kids in Texas.

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Jane Doe, an employee of the Texas Department of Family and Protective Services and the parent of a transgender child, asked a supervisor for clarification on February 23.  Doe was then immediately placed on leave while her family was investigated for child abuse as the DFPS rushed to carry out the governor and AG’s orders.

Doe and her family sued, and the trial judge issued a statewide injunction on the enforcement of Abbott and Paxton’s edicts. The appeals court refused to lift the injunction, but now the Texas Supreme Court has weighed in with a ruling that will allow Paxton and Abbott to declare victory, as long as none of their supporters read the actual opinion.

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The court was unanimous in vacating the injunction insofar as it purported to enjoin conduct by Paxton or Abbott, not because their position regarding children’s medical care was sustained by the court, but because their proclamations were a legal nullity.

“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 with the instruction contained in the letter’s final sentence, and we are directed to none,” wrote Justice Jimmie Blacklock. “Likewise, it is well-settled that an Attorney General opinion interpreting the law cannot alter the pre-existing legal obligations of state agencies or private citizens.”

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DFPS may have believed that it was bound to follow the orders of the state’s executive and top law enforcement official, but the court says they were mistaken, and so there’s no conduct to enjoin here.

“The Governor and the Attorney General were certainly well within their rights to state their legal and policy views on this topic, but DFPS was not compelled by law to follow them,” Justice Blacklock continued, adding later in the opinion that Abbott and Paxton “have every right to express their views on DFPS’s decisions and to seek, within the law, to influence those decisions—but DFPS alone bears legal responsibility for its decisions.”

There’s also some very strange language here suggesting that it would be totally fine to order an investigation based solely on a child receiving gender-affirming care, because DFPS would have to get a judge’s blessing to actually remove a child from their home.

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The normal judicial role in this process is to act as the gatekeeper against unlawful interference in the parent–child relationship, not to act as overseer of DFPS’s initial, executive-branch decision to investigate whether allegations of abuse may justify the pursuit of court orders.

The court vacated the statewide injunction on investigations predicated on trans-affirming medical care alone, holding that an emergency order could not apply to non-parties. But, it did uphold the injunction ordering DFPS to quit investigating the Doe family, which strongly suggests that any other family facing being investigated based solely on their transgender child’s medical treatment could obtain similar relief.

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Omar Gonzalez-Pagan, counsel and health care strategist for Lambda Legal, which participated in the case, acknowledged that DFPS could theoretically continue harassing parents of trans kids, but told the AP that “It would be both futile and a complete waste of resources for them to do so.”

Paxton reacted to the ruling, which, again, said that he had no authority over DFPS, by declaring total victory.

Just secured a win for families against the gender ideology of doctors, big pharma, clinics trying to “trans” confused, innocent children. SCOTX green-lighted investigations that lower Dem courts froze

“Transing” kids through surgery/drugs is abuse & I’ll do all I can to stop it

— Attorney General Ken Paxton (@KenPaxtonTX) May 13, 2022

Well, we’d expect nothing less from this paragon of integrity.

Partial Unanimous Opinion
Concurrence
Dissent

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Government, Greg Abbott, Ken Paxton, LGBTQ Rights