Appeals court denies Paxton appeal of gender affirming care order


A Texas appeals court sided with the parents of a transgender teenager in a ruling Wednesday, rejecting Attorney General Ken Paxton’s efforts to allow a child abuse investigation to proceed.

The ruling will allow a lower court to hold a hearing, scheduled for Friday, where lawyers for the American Civil Liberties Union and Lambda Legal will ask a judge to stop the state from launching child abuse investigations against parents who have obtained gender-affirming care for their transgender children.

“This crisis in Texas is continuing every day, with state leaders weaponizing the Department of Family and Protective Services to investigate families, invade their privacy, and trample on the rights of parents simply for providing the best possible health care for their kids under the guidance of doctors and medical best practices. This appeal was always groundless and DFPS and the courts need to stop this egregious government overreach,” said Brian Klosterboer, an attorney with ACLU of Texas.


The state has opened at least five child welfare investigations into parents of trans children since Abbott issued his directive on Feb. 22, though the real number may be much higher. The state has declined to provide the number of active investigations, citing the pending litigation.

The ACLU and Lambda Legal have sued on behalf of a state worker who has a trans child and alleges she was put on leave and investigated by CPS after asking questions about the directive.

Last week, state District Judge Amy Clark Meachum granted a temporary restraining order blocking the state from investigating the family. Paxton immediately appealed that ruling, and on Wednesday, the Texas 3rd Court of Appeals ruled that it did not have jurisdiction to proceed.

Meachum also scheduled a hearing for Friday to hear arguments on whether to grant a temporary injunction until trial, and whether it should extend to all parents of transgender children.

See here and here for the background. I found a copy of the opinion here – it either wasn’t findable on the Third Court of Appeals website or they just didn’t have it loaded yet. The case information is here. This was a wonky and technical matter of whether the state could appeal a temporary restraining order at this time – you can just skim it to get the gist. Among other things, it means that if Judge Meachum does issue a statewide injunction following the Friday hearing, this will get appealed again, and I imagine it will be on an express lane to the Supreme Court. How it all might go is anyone’s guess. For now at least, this family has a bit of relief, and I hope every other family in that same terrible position will get the same soon.

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2 Responses to Appeals court denies Paxton appeal of gender affirming care order

  1. Kibitzer Curiae says:

    Kuff guessed right. This order was added only in the evening to the Third Court of Appeals’ order/opinion release page for March 9, 2022.

    You can find it there now, and click the link to the case docket also:

    This was essentially a procedural skirmish that most likely only appellate nerds will appreciate.

    Rather than bringing a mandamus proceeding against Judge Meachum, the AG filed an interlocutory appeal, which is normally not a way you can challenge a temporary restraining order (TRO). But, if warranted, it results in an automatic stay of the trial court case when a governmental entity does it.

    The AG’s theory was that by granting the TRO the trial-court judge implicitly exercised jurisdiction, which the AG claimed didn’t exist. They filed a jurisdictional plea to mount that jurisdictional challenge, which Judge Meacham says she didn’t get in time, so there was no ruling on that issue and nothing to appeal. That would otherwise have been appealable. See Civil Practice & Remedies Code § 51.014(a)(8) (authorizing interlocutory appeal of order that “grants or denies a plea to the jurisdiction by a governmental unit”).

    Since there was no order on the jurisdiction issue, the AG argued that the government defendants’ jurisdictional plea was denied *implicitly*, but didn’t succeed. You can’t generally appeal without there being a signed order.

    So, what the appellate court did was to dismiss the appeal for lack of *appellate* jurisdiction, which is not a ruling on anything in the case really.

    That’s the gist. There are some other finer points, such as whether and when a TRO may be considered the equivalent of a temporary injunction, which would then be appealable under the interlocutory-appeals statute. Salon owner Shelley Luther’s attorney tried that too last year in the Dallas Court of Appeals, and it didn’t fly there either.

    And the plaintiffs alternatively asked the appellate court to issue a temporary order coterminous with the trial court TRO, but given that court’s conclusion that it didn’t even have jurisdiction to get involved at this juncture, that request couldn’t be granted.

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