The Texas Supreme Court issued its opinion today in In re Abbott, addressing the interim injunctions issued to prohibit DFPS from acting on Governor Abbott and Attorney General Paxton’s directives that gender affirming care constitutes child abuse.

Procedural result

Recall that the suit originates from the plaintiffs’ underlying causes of actions (1) a claim for a declaratory judgment that DFPS’s statement regarding its implementation of the Governor’s directive amounts to an invalid rule under the Administrative Procedures Act (APA), (2) a claim for a declaratory judgment that the Governor and the Commissioner engaged in ultra vires conduct, and (3) claims of various constitutional violations. The merits of those claims were not before the Court in this mandamus proceeding. Further, the merits of the underlying claims are not affected by the narrow ruling today, which only addresses the injunctive relief while the case pends.

The issue in the mandamus appellate proceeding before the court was only what authority the courts have to issue injunctive relief to the parties in the case and/or the state as a whole to allow DFPS to investigate and act upon claims of child abuse committed by parents seeking gender affirming care of transgender children. The result of the mandamus proceeding is a mess with all of the justices participating (Justice Young was not participating) unanimously voting in favor of part of the decision, but only a majority voting in favor of the last portion of the decision. Justice Deborah Lehrmann wrote a concurring opinion agreeing in the result, but commenting further on the global issues. Justices Blacklock, Boyd, and Devine — known to be the most right of the conservative court — dissenting in the last part of the court’s decision.

Summary by the Court

The Texas Supreme Court provides the following summary of the ruling:

On February 18, 2022, the Texas attorney general issued an opinion letter concluding that certain “‘sex change’ procedures and treatments . . . when performed on children, can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code.” The governor then sent a letter to the Texas Department of
Family and Protective Service (DFPS) stating that “a number of so-called ‘sex change’ procedures constitute child abuse under existing Texas law” and instructed “DFPS and all other state agencies” to “follow the law as explained in” the attorney general’s opinion. DFPS issued a media statement that it would follow the governor’s instructions.

Parents of a child diagnosed with gender dysphoria and a doctor who treats such children sued the governor, the DFPS commissioner, and DFPS, challenging the governor’s and DFPS’s statements. The district court granted plaintiffs a temporary injunction that restrained the defendants from: “(1) taking any actions against plaintiffs based on the governor’s and DFPS rule . . . as well as Attorney General Paxton’s opinion;” “(2) investigating reports in the state of Texas against any and all persons based solely on alleged child abuse . . . where the only grounds for the purported abuse or neglect are either the facilitation or provision of gender-affirming medical treatment or the fact that the minors are transgender, gender transitioning, or receiving or being prescribed gender-affirming medical treatment;” “(3) prosecuting or referring for prosecution such reports;” and “(4) imposing reporting requirements on persons in the state of Texas who are aware of others who facilitate” the above actions.

The state filed an interlocutory appeal, which automatically superseded the district court’s injunction. The court of appeals reinstated the injunction under its authority in Texas Rule of Appellate Procedure 29.3 to “make any temporary orders necessary to preserve the parties’ rights until disposition of the appeal.” The state petitioned the Supreme Court for mandamus relief from the injunction.

The Supreme Court granted partial relief. The Court first clarified that neither the governor nor the attorney general could bind DFPS’s investigatory authority. The Court then granted mandamus relief as to the parts of the court of appeals’ order that purported to bind nonparties, reasoning such an injunction was outside of the court of
appeals’ authority to protect parties’ rights under rule 29.3. The Court also granted mandamus relief as to the parts of the court of appeals’ order binding the governor, as the governor does not have authority to investigate, prosecute, or impose reporting requirements regarding child abuse allegations. Lastly, the Court denied the state relief as to the order’s impact on the plaintiffs.

Justice Lehrmann filed a concurring opinion. The concurrence agreed with the Court’s opinion and judgment but highlighted the narrow scope of the Court’s partial grant of mandamus relief, particularly its lack of effect on the merits of the underlying suit. The concurrence also viewed the scope of the court of appeals’ order as narrower than the state presented. The concurrence viewed the injunction as returning DFPS’s investigative policies to the status quo which the concurrence reasoned implicated whether the state indeed has an adequate remedy by appeal.

Justice Blacklock filed a partially dissenting opinion, in which Justice Boyd and Justice Devine joined. The partial dissent would have granted the state mandamus relief as to the part of the court of appeals’ order regarding the plaintiffs. The dissent reasoned that the plaintiffs did not establish that they were entitled to an injunction against DFPS beginning an investigation of potential child abuse. According to the dissent, the proper time for courts to review DFPS’s actions is after the investigation stage when DFPS tries to act based on the investigation.

But what does all of this mean?

Procedurally, the Court dismisses the global and broad injunctive relief that prohibited DFPS from conducting investigations of child abuse generally for gender affirming care. Instead, the Court restricted the power of the trial court to issue injunctive relief *only* as to the specific parties to the case at hand. This means that other families who are being investigated solely as a result of the Governor and AG’s opinions must affirmatively file suit in order to be entitled to injunctive relief.

Left after the opinion is (1) a court of appeals order that protects only the plaintiffs as against DFPS and its Commissioner’s actions, and not as against the Governor; (2) a nonbinding Attorney General Opinion; (3) a nonbinding statement by the Governor; and (4) a state agency, DFPS, with the same discretion to investigate reports of child abuse that it had before issuance of OAG Opinion No. KP-0401 and the Governor’s letter, says the opinion.

So the injunctions against the actions of DFPS as it relates to the parties to the pending suit remain.

Noteworthy, however, the opinion clearly states that that neither the AG nor the Governor have the ability to change the laws regarding child abuse and the Department cannot rely on the AG opinion or the Governor’s Directive as a basis for these investigations.

Footnote 3 of the opinion addresses the elephant in the room, so to speak: “We are not blind to the many informal  mechanisms by which a governor or an attorney general may validly seek to influence the behavior of state agencies as part of the normal give-and-take between departments of state government. Ultimately, however, one department or another has the final say, and a court must correctly identify the true decision-maker before assessing the decision.” In other words, DFPS needs to stand up for themselves and their independent right to do the job they are commanded to do under the code — investigate child abuse — without kowtowing to the interference of other elected officials peacocking around the state for votes in an election year.

Justice Lehrmann’s concurring opinion — gender affirming care approved by a medical doctor is not child abuse

Justice Lehrmann, a former family court trial judge from Tarrant County, filed a concurring opinion to “…write separately to highlight the narrow scope of what is before us in contrast to the broader underlying dispute, lest we lose the forest for the trees.” She seems to be the Justice with the most relevant perspective and experience with the issues as a whole. (As a side note, her opinion is the only opinion which uses proper reference to the issues.) She goes on to clarify:

The reinstated injunction prohibits DFPS from investigating reports “based solely on . . . facilitating or providing gender-affirming care . . . where the only grounds for the purported abuse” are “facilitation or provision of  gender affirming medical treatment.” (Emphases added). The order further makes clear that the injunction is intended to restrain enforcement of “the Governor’s directive and DFPS rule, both issued February 22, 2022.”

In other words, the order temporarily reinstates DFPS’s policies as they were prior to the February 22 directive, leaving DFPS free to screen and investigate reports based on its preexisting policies regarding medical abuse and neglect…. That is, it does not preclude DFPS from investigating reports that a child diagnosed with gender dysphoria is receiving treatment that is medically unnecessary or inappropriate. To the contrary, it requires DFPS, as has always been its responsibility, to investigate reports of child abuse or neglect allegedly committed by a person responsible for a child’s care, custody, or welfare. TEX. FAM. CODE § 261.301(a). And DFPS has a detailed process for screening reports and initiating and conducting those investigations. See TEX. ADMIN. CODE §§ 707.447–.517. These standards apply regardless of a child’s diagnosis with gender dysphoria. The order would simply bar DFPS from initiating investigations and making referrals based solely on the new grounds set out in the Governor’s directive.

Accordingly, DFPS itself recognizes that the court of appeals’ order—even if it were not deficient under Rule 29.3—does not bar it from investigating child abuse and neglect associated with inappropriate or medically unnecessary treatment for gender dysphoria; it simply must use preexisting criteria and procedures in determining whether a particular case justifies intervention.

Footnote 3 of Justice Lehrmann’s concurring opinion, importantly, she writes: “There is no plausible argument that DFPS is foreclosed from investigating these types of nonmedically approved procedures as possible child abuse, either before or after the injunction. This is in stark contrast to medically accepted treatments like the administration of puberty-suppression drugs prescribed by a treating physician. By essentially equating treatments that are medically accepted and those that are not, the OAG Opinion raises the specter of abuse every time a bare allegation is made that a minor is receiving treatment of any kind for gender dysphoria. In my view, a parent’s reliance on a professional medical doctor for medically accepted treatment simply would not amount to child abuse.”

Let’s restate that for those who are still unclear: Reliance on a professional medical doctor for medically accepted treatment simply would not amount to child abuse. Thank you, Justice Lehrmann for showing the courage to be the voice of reason here!

Now the case returns to the trial court for proceedings addressing the merits of the underlying case.