The District Court in Travis County has blocked the Texas Department of Family Protective Services (DFPS) from investigating parents who are giving their children’s transgender therapy, that are affiliated with the organization PFLAG (Parents, Families, and Friends of Lesbians and Gays), who represented several families in the case.
The decision comes after several court decisions have slightly or temporarily blocked Governor Abbott’s memo to DFPS (known as the “DFPS Rule”) that directed the Department of Family Protective Services (DFPS), and CPS, to investigate families giving their children transgender therapy.
In February 22, 2022 Governor Abbott sent out a memo to DFPS after Texas Attorney General Ken Paxton wrote a 13 page opinion, arguing that transgender therapy is child abuse under the law.
In his opinion of the law, Patxon argued that giving transgender treatment to minors is a violation of Texas family code under the definitions of abuse which is defined as actions leading to mental, physical, emotional and psychological trauma done to the child that is observable and impairs the child’s growth, development, and psychological functioning.
Paxton stated that the Supreme Court recognizes a fundamental right under the Fourteenth Amendment to procreate under Skinner v Oklahoma. “To the extent that these procedures and treatments could result in sterilization, they would deprive the child of the fundamental right to procreate, which supports a finding of child abuse under the Family Code,” wrote Paxton.
The Texas Attorney General also stated that the state legally has interest in protecting children especially when their parents do not do so. “The Supreme Court has explained that children’s “inability to make critical decisions in an informed, mature manner” makes legislation to protect them particularly appropriate. Bellotti, 443 U.S. at 634.” wrote Paxton.
The Department of Family Protective Services and CPS deal with abuse against children and, when the situation arises, takes them out of the home of the parents. The office of the Governor believed that the same should be done to parents giving their children transgender treatment.
The Department of Family Protective Services and CPS then conducted these controversial investigations under the DFPS Rule, and have done so for the past year up until now. What has added to the controversy is that it was exposed weeks ago that DFPS, during the handling of these investigations, communicated on these types of investigations by conversation and over the phone to try to prevent any written communication done by email over text.
This was unusual for DFPS because they are supposed to assess who is involved in investigations, how the investigations are conducted, who is conducting them and communications with the parents as well. Furthermore, only higher level officials in the agency conducted the investigations.
Additionally, the Houston Chronicle stated that throughout the year of 2022 there was a mass exodus of around 2000 DFPS and CPS workers leaving the field. There have been problems with the agency’s workers having conflicting opinions on the matter.
The DFPS Rule under Abbott’s memo came with a string of lawsuits. Amongst the litigation throughout the year, immediately after the DFPS Rule was issued in February, a District Court quickly decided to block the Rule and prevent DFPS from investigating parents giving their kids transgender therapy. But this decision was later appealed to the Texas Supreme Court.
The Texas Supreme Court ruled that the specific family in the case cannot be investigated. Yet, the Texas Supreme Court did not extend that to all families and allowed the state to continue its investigations.
The Supreme Court did note that DFPS was not obligated under law to adhere to the Governor and the Attorney General’s “Rule,” since it is not codified into law. The Texas Supreme Court stated, “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.”
Later, the coalition PFLAG represented several plaintiffs being investigated by the state, and sued Governor Abbott and the Commissioner of DFPS.
The District Court in Travis County placed a temporary restraining order against the Rule, and was going to use the time to litigate the matter. It stated that the DFPS Rule violated the Administrative Procedure Act, because it did not go through the proper procedures and the families in the case would have immense harm done to them if the state took their child away.
The District Court noted that the DFPS Rule was acting upon Abbott’s and Paxton’s legal opinion as if it was law.
The Administrative Procedure Act (APA) “governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking.”
Furthermore, the court stuck with arguments that the status quo before the DFPS Rule was never investigation parents who are only giving their children transgender treatment, and was never, until the Rule, viewed as child abuse under the law.
The Court was deciding over the past two months if it would place a temporary injunction requested by PFLAG.
An Amicus Brief, which is a third party advisory argument for courts of law, was written to the District Court by 16 members that have resigned from, or are currently part of the DFPS. They argued that the district court should place an injunction.
The argument added that invesitgating parents giving their children transgender therapy was never part of the status quo of child abuse until the DFPS Rule.
Additionally the amicus argues employees already have massive caseloads and are overworked and get too much overtime. The caseworkers don’t all agree that what they’re investigating is child abuse and they believe that these cases are taking them away from what they believe actually constitutes child abuse.
That was a few months ago. This past weekend the District Court reached a decision to place a temporary injunction against the Department of Family Protective Services, and CPS, from investigating families on the grounds they are giving their children transgender therapy.
Specifically, it is families that are members of PFLAG, the organization that represented the plaintiffs in the case. PFLAG is a national organization with 17 chapters and 600 members alone in the state of Texas. All members are protected from these types of investigations by DFPS.
The District Court listed the same reasons for the temporary injunction, as it did for the restraining order two months prior. “The DFPS Rule was adopted without following the necessary procedures under the APA, is contrary to DFPS’s enabling statute, is beyond the authority provided to the Commissioner and DFPS, and is otherwise contrary to law, as alleged in Plaintiffs’ Petition. The Court finds this new rule was improperly promulgated by Defendants and interferes with or impairs – or threatens to interfere with or impair – the legal rights and privileges of PFLAG members and their families, as well as the legal rights and privileges of the Briggle Plaintiffs, as well as the other Plaintiffs in this case,” said the Court.
The Court still declared that the DFPS Rule under Governor Abbott’s memo and Ken Paxton’s opinion violated the Adminstrative Procedure Act, and before the Rule in Febrary of 2022, the status quo never held that giving children transgender treatment was child abuse.
The case is not over yet, however. The District Court is still going to have to work out all the issues in this case. Right now there is only an injunction preventing DFPS and the state investigating these types of cases. The Court does note that, “For the reasons detailed in Plaintiffs’ Application and accompanying evidence, there is a substantial likelihood that Plaintiffs will prevail after a trial on the merits,” said the Court.
The decision was given by Judge Amy Clark Meachum, Judge of the 201st Judicial District Court of Travis County, Texas. A trial for the merits of the case is set for June 12, 2023. Until then, DFPS cannot investigate families who are members of PFLAG on the grounds they are giving their children transgender treatment.
[Story by Jacob Lehrer]