Doe v. Abbott: Texas’s Latest Affront to Constitutional Rights

On Wednesday, Mar. 2, 2022, District Judge Amy Clark Meachum issued a temporary order to stop an investigation of child abuse under Texas’s newest anti-trans directive. Judge Meachum’s order halted the investigation by the Texas Department of Family and Protective Services (DFPS) into the parents of a transgender teen for providing their child with gender-affirming care

In February of this year, Texas Attorney General Ken Paxton formally opined that performing or prescribing gender affirmation care on transgender, gender-diverse, and nonbinary youth constituted “child abuse” under Texas law. On February 22, Texas Governor Greg Abbott wrote to the DFPS directing it to investigate any youth’s gender-affirmation care as child abuse. The directive from Governor Abbott targeted both parents that supported, and medical providers that offered, gender-affirmation care. Governor Abbott advocated for “licensed professionals” and “members of the general public” to turn over parents to state authorities if it appeared that their child had received or is receiving gender-affirming care. The directive threatened criminal penalties not only for professionals that offer gender-affirming care, but also those professionals that fail to report “suspicions” of gender-affirming care to the state. In 2021, Texas legislators proposed 47 bills intended to restrict the rights of gender diverse, trans, and nonbinary youths. One of these bills, Senate Bill 1646, introduced by Senator Charles Perry aimed to criminalize gender-affirming care. The bill ultimately did not pass, but Governor Abbott’s directive and Ken Paxton’s opinion attempt to enforce it all the same. Though neither Paxton’s opinion nor Abbott’s directive is legally binding, the DFPS has already initiated multiple investigations against parents with children that receive gender-affirming care. 

The ACLU and Lambda Legal initiated this suit on behalf of the plaintiffs when the DFPS investigated one of its own employees, the parent of a trans teen. The Plaintiffs, two parents of  a trans youth—proceeding under Jane, John, and Mary Doe to protect anonymity and privacy— along with Dr. Megan Mooney, petitioned the court for a temporary restraining order, temporary injunction, permanent injunction, and request for declaratory relief against Governor of Texas Greg Abbott, Commissioner of the DFPS Jaime Masters, and the Texas Department of Family and Protective Services. 

Judge Meachum found that without an immediate restraint on the Defendants, the Plaintiffs “will suffer irreparable injury.” Jane Doe, the mother of the trans youth, was placed on administrative leave and is at risk of losing her job. All three Does are faced with deprivation of their constitutional rights, the loss of medically necessary care, and are subject to the stigma of an unfounded child abuse investigation. If found guilty of child abuse both parents could lose the ability to work with youths and volunteer within their community. Dr. Mooney faces potential suits from patients she cannot treat in accordance with professional standards under this directive. She also could lose her license for a failure to practice ethically and face criminal prosecution if she does not comply with the directive. Judge Meachum found that these grievances cannot be remedied; therefore, the Defendants had to be enjoined from taking further action under the directive against the named Plaintiffs. 

Next Friday, March 11, the Defendants have the opportunity to argue against issuing the temporary injunction. At issue at the hearing are the enforceability of the directive as well as the violations of the Plaintiffs’ constitutional rights. At the hearing, Judge Meachum will determine if a statewide injunction should enjoin the Defendants from investigating reports of gender-affirming care, prosecuting reports of gender-affirming care, and imposing requirements to report gender-affirming care. 

The American Medical Association, the American Academy of Pediatrics, and the American Psychological Association all support gender-affirming care. Gender-affirming care refers to healthcare services that affirm gender and/or treat gender dysphoria. The American Medical Association directly opposes state legislation that prohibits gender-affirmation care because the denial of gender-affirming care “can have tragic health consequences.” The American Academy of Pediatrics argues that bills aimed to restrict this care are entrenched in misinformation and present extreme danger to youths. Statistically, access to gender-affirming care leads to long-term mental health benefits for trans individuals. It lowers the risk of depression and reduces the risk of death by suicide. Overall, gender-affirming care can dramatically improve the mental and physical wellbeing of a trans, gender-diverse, or nonbinary youth. 

Texas is not the only state attacking the rights of gender-diverse, trans, and nonbinary people. Only three months into 2022, dozens of states are considering legislation that further discriminates against the LGBTQ+ community. Last year in Montana, Governor Greg Gianforte signed into law a number of anti-transgender bills. It is naive to ignore concerns that Montana’s next legislative session might mirror Texas’s multiple affronts to constitutional rights. 
Gender-affirming care is not child abuse. In many instances gender-affirming care can prove to be lifesaving. To criminalize the care that trans, gender-diverse, and nonbinary youths know is in their best interests not only heightens the violence and discrimination they already endure, it sends a horrifyingly clear message that their very existence is illegal.

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