Judge temporarily blocks Texas investigations into families of trans kids

Empty seats reserved for transgender children and their parents sit empty as most were too afraid to publicly testify at a DFPS Committee meeting in Austin on Friday, March 11, 2022. (Jordan Vonderhaar For The Texas Tribune, Jordan Vonderhaar For The Texas Tribune)

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A state judge ruled Friday that providing gender-affirming care is not a reason for the state to investigate a family for child abuse, and halted all such investigations.

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The statewide injunction from District Judge Amy Clark Meachum will remain in effect until “this court, and potentially the Court of Appeals, and the Supreme Court of Texas” hear the case, she said.

Meachum said there is a “substantial likelihood” that lawyers for the American Civil Liberties Union and Lambda Legal will prevail in getting Gov. Greg Abbott’s directive for such investigations permanently overturned, calling his actions “beyond the scope of his duty and unconstitutional.”

This ruling came after a day of arguments about the Feb. 22. directive, in which Abbott told the Department of Family and Protective Services to open child abuse investigations into parents who provide gender-affirming care to their transgender children. Abbott specifically addressed puberty blockers, which are completely reversible, and surgeries that are rarely performed on minors.

Since the directive, the state has opened nine investigations into families who provide this medical care to their children. The injunction stops the state from investigating anyone for child abuse based solely on the allegation that they provided gender-affirming medical treatment. It also stops anyone from being prosecuted for child abuse for providing gender-affirming care and lifts the mandatory reporting requirements laid out in the directive.

Meachum ruled that Abbott’s directive had the effect of a new law or agency rule “despite no new legislation, regulation or even stated agency policy,” which improperly encroached on the legislative arm of the government.

A DFPS supervisor who was called to testify at the Friday court hearing said that the child abuse investigations into families of transgender children are being held to a different standard than other cases.

Investigators can’t discuss cases with colleagues via text or email, and they are required to investigate the cases, even if there’s no evidence of abuse, said Randa Mulanax, an investigative supervisor with DFPS.

Mulanax has decided to resign as a result of this directive after six years with the agency.

“I’ve always felt that, at the end of the day, the department had children’s best interest at heart,” she said. “I no longer feel that way.”

Abbott’s move to have families of transgender children investigated for abuse — made one week before the state’s March 1 primary election — followed a nonbinding legal opinion from Attorney General Ken Paxton.

The ACLU and Lambda Legal filed a lawsuit against the state on behalf of the parents of a transgender child who were investigated by child welfare workers after the mother, a state employee, asked questions about the new directive.

Meachum granted a temporary restraining order last week, which halted that particular case, but there are currently nine families under investigation for providing gender-affirming care, according to DFPS.

Lawyers for the ACLU and Lambda argued in court Friday that Meachum should grant a statewide injunction on all of these investigations until the legitimacy of this directive can be argued in trial.

“The defendant’s directives and actions are traumatizing,” said ACLU of Texas attorney Brian Klosterboer. He added that the actions are “killing the ability of transgender youth to continue to get necessary care, and forcing physicians and mandatory reporters … to decide between civil and criminal penalties … and doing what’s right for the health of their patients.”

A lawyer for the state argued that simply opening a child abuse investigation into a family is not necessarily evidence of harm to that family, and that it would be overreach for “the judicial branch to infringe on the executive branch’s ability to perform such a critical task as ensuring the welfare of the state’s children.”

Mulanax said employees have been told not to communicate with colleagues about these cases via email or text message, which she described as unusual and “unethical.”

She said investigators have been told they cannot mark these cases as “priority none,” a designation staff members use when they believe a report does not merit investigation, and must alert department leadership and the general counsel when they’re working on one of these cases.

A lawyer for the state asked Mulanax if any transgender children had been removed from their homes or been taken off of medication prescribed by a doctor. Mulanax said the cases had not been resolved and to her knowledge, no one had been removed or taken off of medication.

A psychologist who treats children with gender dysphoria testified to the court about the “outright panic” that her patients and health care providers have been feeling since this directive went into effect.

Megan Mooney is a plaintiff in the lawsuit. She testified about the conflict this directive has created for herself and other professionals whom the state considers mandatory reporters of child abuse.

A requirement to report her clients for receiving “medically necessary and professionally upheld standards of care” would be devastating to her clients and her business, Mooney said.

She said she doesn’t believe she is in violation of any laws, since Paxton’s opinion was nonbinding, but the governor's directive has sowed confusion and anxiety, as well as created an ethical conflict.

Assistant Attorney General Courtney Corbello asked whether Mooney’s personal ethical disagreement with a policy means that she doesn’t have to follow it.

“My ethical code from the American Psychological Association suggests that when our ethics and our laws are in conflict, we take every effort to remedy that,” Mooney said. “That is in part why I am here today.”

Corbello walked Mooney through the World Professional Association for Transgender Health standards for providing care for minors with gender dysphoria — assessing the child, providing family counseling and psychotherapy to children, treating any co-existing mental health concerns and providing fully reversible physical interventions, among other steps.

Mooney agreed with these steps, though she said sometimes they happen simultaneously.

At a Department of Family and Protective Services meeting on Friday, Heather Crawford said children will die because DFPS complied with Abbott's order. Her own child, who is transgender, attempted suicide when she did not at first affirm their gender identity. She read a note at the meeting that her child had written before the attempt.

"This note was written in blue, glitter pen. They were 12 years old. This is what happens when trans children are not giving the affirming care that is their God-given right," Crawford said. "If DFPS fails to comply with your moral and legal obligation to protect all of the children of Texas, the department and each person working in the or for the department will be complicit in every single one of those deaths."

Since the guidance was announced, crisis counselors at the Trevor Project reported young trans and nonbinary Texans are having suicidal thoughts as they fear losing access to medical care and being separated from their families, said Sam Ames, the director of advocacy and government affairs at organization, which works to prevent suicides in the LGBTQ community.

More than 80 other people spoke during public comment at the DFPS meeting, and many read written testimony from trans children and their families who were terrified to attend themselves. Sarah Orman, an advocate for children in the foster care system with Court Appointed Special Advocates, read testimony on behalf of an 8-year-old transgender girl.

"Before the Texas Legislature in 2021, I never really spent much time thinking about how different I am that other kids. My friends who know I'm trans don't care. They love me just the same," the girl wrote. "It wasn't until last year that I've worried about not being treated the same as others. And just last week, I found out what a lawyer is and who CPS is. My mom had to explain that so people might come to talk to me and ask me a bunch of questions that might hurt to hear."

Late Friday, Paxton said on Twitter that his office would be appealing Meachum’s ruling. “I’m appealing. I’ll win this fight to protect our Texas children,” Paxton tweeted.

Meanwhile, Lambda Legal attorney Currey Cook said his organization was “thrilled” by Meachum’s decision.

“It’s been such a harrowing past week for everyone living under the threat of being persecuted just for supporting your kids,” he said. “What the governor did put in stark relief the steps that some government officials are willing to take for political gain.”

Disclosure: The ACLU of Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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