TX Supreme Court allows child abuse probes in cases involving provision of ‘gender-affirming’ care

The Texas Supreme Court recently issued a pivotal decision in another hot-button area of the law, determining whether that state’s child welfare agency may investigate cases in which gender-affirming medical treatment arguably constitutes child abuse, as the Daily Wire reports, and many Democrats are none too pleased with the rather mixed conclusion that was reached.

According to the outlet, the controversy arose when state Attorney General Ken Paxton issued a formal legal opinion on whether the prescribing of puberty-blocking drugs and sex-change procedures to minors identifying as transgender was akin to child abuse under state law, doing so in the wake of an August 2021 letter from Republican Gov. Greg Abbott to the state’s Department of Family and Protective Services (DFPS) seeking a determination of the same.

Abbott order sparks litigation

In response to Paxton’s declaration that the aforementioned gender-affirming treatments do fall under the umbrella of child abuse under Texas law, Abbott ordered that “all licensed professionals who have direct contact with children” would be required to report to state authorities anyone they suspected of receiving such medical interventions, under threat of criminal prosecution.

Almost immediately, a legal challenge was initiated by the ACLU of Texas and Lambda Legal, which filed suit on behalf of the mother of a teenage transgender individual who claimed she had been investigated by state authorities.

Soon after, Travis County District Court Judge Amy Meachum temporarily halted the specific investigation into that parent as well as of all others like it, as The Hill reported at the time, saying that Abbott’s order may not withstand legal scrutiny and went “beyond the scope of his duty.”

Texas Supreme Court weighs in

Though Meachum’s halt to the probes was initially upheld by a state appeals court, the Texas Supreme Court earlier this month unanimously ruled that child welfare authorities could indeed resume investigations of parents and physicians who facilitate gender reassignment interventions.

It should be noted, however, that in doing so, the high court issued something of a mixed ruling in that authorities were prohibited from restarting the probe into the specific plaintiff in the lawsuit, but the panel also determined that the appeals court that upheld Meacham’s prior halt on investigations more generally exceeded its powers by promulgating a statewide order, according to NPR.

The practical effect of the ruling, therefore, is to declare Abbott’s order and Paxton’s legal opinion “nonbinding” and to state that DFPS retains “the same discretion to investigate reports of child abuse that it had before” the opinion and order were issued.

Opposing sides react

As the Daily Wire noted, Paxton has declared the outcome to be a win in that the type of probes the governor directed were deemed permissible, though LGBT advocates also declared victory in the matter.

Following the ruling, the ACLU of Texas and Lambda Legal called the decision “a win for our clients and the rule of law,” adding, “[t]he Texas Supreme Court made clear that the attorney general and governor do not have the authority to order DFPS to take any action against families that support their children by providing them with the highest standards of medical care.”

“It would be unconscionable for DFPS to continue these lawless investigations while this lawsuit continues, and we will not stop fighting to protect the safety and lives of transgender youth here in Texas,” the groups added.

It remains to be seen whether the state’s child welfare agency will indeed delve into cases of suspected abuse related to the provision of so-called gender-affirming medical care to minors, but given that the litigation that brought this question to the courts in the first place remains ongoing, this case is certainly one to watch in the coming months.

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