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Another injunction issued to halt DFPS investigations of trans kids’ families

New case, different families.

A Travis County judge on Friday granted a narrow injunction against the state of Texas that will continue to block investigations of child abuse for two families who allowed their children to receive gender-affirming care.

The suit was brought by three Texas families and national LGBT advocacy group PFLAG in response to the Department of Family and Protective Services resuming the investigations this spring, after the Texas Supreme Court ruled it could in a similar but separate case.

“The DFPS Rule was given the effect of a new law or new agency rule, despite no new legislation, regulation, or even valid agency policy,” said Judge Amy Clark Meachum, a Democrat, in granting the injunction, which will last until the case’s resolution.

Like another Travis County judge who granted a temporary restraining order that blocked the investigations into the plaintiff families, Meachum wrote in her ruling Friday that restarting the inquiries would cause “immediate and irreparable injury” to them.

Unlike the previous injunction, however, Meachum’s order does not apply to all members of the chapter-based group PFLAG.

Meachum said Friday that she will “consider legal and factual consideration” and “rule as soon as possible” on whether to do so. Adam and Amber Briggle, the third plaintiff family, was also not included in Friday’s injunction, as their CPS case was closed after the lawsuit was filed.

[…]

There have been 11 investigations of parents of Texas transgender youth, testified Marta Talbert, a director of the state’s Child Protective Investigations unit who was called as a witness by state lawyers. Talbert said five have been closed and two are close to being closed.

The other four cases are stayed by the court through litigation. Talbert said this was either because the state found the youth were not on any kind of puberty blockers or hormones or, more often, because their doctor was able to provide information about their care to investigators.

Lawyers for the plaintiffs disputed that the investigations were being held up for purely administrative reasons and said there seemed to be “further activity” by the child welfare agency on them, contradicting Talbert’s testimony.

See here for a copy of the judge’s order. As the story notes, the state has already filed an appeal, so this will end up before the Supreme Court again in fairly short order. I’m going to go through a bunch of previous posts to review the history so far, but first let’s look at the Statesman story for some further details.

Meachum’s temporary injunction blocked the child-welfare agency from taking any action against the families other than to close its investigations — if that can be done without further contact with the parents or children.

The controversy began in February when Paxton issued a nonbinding legal opinion that said gender-affirming care was prohibited by state child-abuse laws. National medical experts said Paxton relied on false claims, exaggerations and errors to reach that conclusion, but Abbott followed with a Feb. 22 letter directing the Department of Family and Protective Services to investigate such care as abuse, and the state’s child-welfare agency agreed to do so.

Legal challenges followed.

The first lawsuit was filed by a mother, identified only as Jane Doe, who worked for the Department of Family and Protective Services and came under investigation after asking a supervisor what Abbott’s directive meant for her transgender teen. Meachum responded in March by issuing a statewide injunction barring all abuse investigations based solely on providing gender-affirming care.

Paxton’s bid to overturn the injunction is still before the Austin-based 3rd Court of Appeals, but in the meantime, the Texas Supreme Court substantially limited the scope of the judge’s order, striking down the statewide injunction in May while allowing it to apply only to the Doe family.

When Child Protective Services resumed child abuse investigations, three more families filed suit, this time joined by PFLAG, a leading LGBTQ advocacy organization. Last month, a different Travis County judge responded by issuing a temporary restraining order blocking investigations into the three families and any member of PFLAG.

On Wednesday, during a daylong hearing in Austin on whether to convert the restraining order into a longer-lasting injunction, lawyers for Paxton argued that state law gives the child welfare agency the authority to protect minors from abuse, including the potentially improper use of puberty blockers and hormone therapy.

To recap, the first lawsuit to block investigations resulting from Greg Abbott’s executive order, which in turn followed Ken Paxton’s nonbinding opinion, came on March 1, with a DFPS employee and her family, including her 16-year-old daughter, as plaintiffs; Amy Clark Meachum was the judge in this case as well. They won a restraining order, which was then appealed and upheld by the appellate court. On March 11, Judge Meachum issued a statewide injunction to stop the state from investigating anyone for child abuse based solely on the allegation that they provided gender-affirming medical treatment, and anyone from being prosecuted for child abuse for providing gender-affirming care and lifts the mandatory reporting requirements laid out in the directive. This was upheld by the appellate court after some shenanigans by Ken Paxton. On May 13, the Supreme Court upheld the original injunction for the first family that sued but overturned the statewide injunction, which allowed DFPS to pursue other investigations if it had grounds to do so. At that time, DFPS employees said that “agency leadership has acknowledged that these investigations do not meet the current requirements for child abuse and have said policy would need to be generated to match the governor’s directives”, which I believe is what Judge Meachum is citing in this ruling. DFPS did resume some investigations, which led to another lawsuit filed on behalf of three families, who were granted a restraining order by a different Travis County judge, Jan Soifer. One of the three plaintiff families in that case is the Briggles, whose investigation has since been closed by DFPS, which I believe means they are no longer party to that suit, though I could be wrong about that. And that, I believe, catches us up. Whew!

From here the usual pattern will be followed. The restraining order is being appealed, and if history is any guide it will be upheld by the Third Court and go from there to SCOTx. In the meantime, there will be a hearing for a permanent injunction, which according to Judge Meachum’s order will be on December 5. SCOTx may or may not get around to weighing in on the restraining order before then. Most likely some other suits similar to these current two will be filed, and perhaps DFPS will publish an update to their requirements to make their investigations less susceptible to these lawsuits. I have no idea how long that process may take or what the new requirements might look like. I don’t think there’s any relevant federal activity that could have an effect, but that may change, and I might be wrong about that. Needless to say, the 2022 election will have an effect as well.

One more thing, from the Chron story:

The state called as a witness James Cantor, a clinical psychologist based in Ontario, Canada, who said his reviews of studies have found that the majority of children with gender dysphoria no longer end up having symptoms of the condition after hitting puberty and instead “tend to realize they are gay or lesbian.”

Most of the studies he cited in a blog post making the same argument were published before 1988. Gender identity disorder did not make an appearance in the nation’s manual of mental disorders until 1980.

The plaintiffs’ attorneys objected to Cantor’s testimony, saying the studies referenced were not of transgender youths but rather “tomboys” or “effeminate” youth. They also pointed to a North Carolina district court opinion that found that Cantor lacked personal experience or expertise treating minors with gender dysphoria and therefore gave his testimony “very little weight.”

“It’s a complete misrepresentation of the science, one that frankly is the basis and foundation for all of Paxton’s opinions, Gov. Abbott’s directive and the department’s actions,” said Omar Gonzalez-Pagan, senior attorney with Lamda Legal. “It’s a fundamental misunderstanding about trans kids because they don’t believe trans kids should exist.”

This is your reminder that the state’s entire case is built on bullshit and lies, and should be laughed out of the courtroom. The Los Angeles Blade has more.

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One Comment

  1. Kibitzer Curiae says:

    THE INJUCTION [SIC] ORDER

    While Kibitzer often disagrees with Kuff on interpretations and does not subscribe to the same set of underlying ideological priors, he commends Kuff for posting links to the actual order that is the subject of his posts on ongoing litigation. The Trib doesn’t always do so, and you can’t trust them to get the story right. When the source material is referenced and can be examined by all who can be bothered to make the extra effort, a meaningful critique and search for the truth is at least facilitated.

    So here, as you can see by clicking on the link to Judge Meachum’s order, it’s a TEMPORARY INJUNCTION, not a TEMPORARY RESTRAINING ORDER (TRO).

    Kibitzer, who is prone to commit typos on a regular basis, gleefully notes that that order is captioned “INJUCTION”. To err is only human …

    TRO VS. TEMPORARY INJUNCTION

    Regarding relevance and substance, a TRO expires within 14 days (the one in the In re Paxton case involving the pre-Roe criminal statute on Tuesday, for example), and cannot be appealed in the normal sense of the term.

    An attack on a TRO instead requires a petition for writ of mandamus to the appellate court (which is considered an “original proceeding” against the trial court judge, who is formally the “respondent”), and is often accompanied by an emergency motion for stay (temporary relief) because once the TRO expires (as it must) within 14 days, the whole proceeding in the higher court becomes moot.

    So, the higher court has to rush it. In the Harris County misdemeanor judges’ suit against Abbott Order GA-13 (the stay-in-jail-no-bail COVID order), for example, the SCOTX issued is mandamus opinion just 1 day before the expiration of the TRO issued by a Travis County judge in that case. Expect a ruling in In re Paxton hybrid civil/criminal abortion law case on Monday or Tuesday morning at the latest, or else a dismissal.

    A temporary injunction, by contrast, typically lasts until the date of trial (unless subsequently modified/vacated by the trial court or reversed/vacated by a higher court) and the trial date must be set in the injunction order.

    A temporary injunction – unlike a TRO – can be appealed immediately under the interlocutory appeals statute. TEX. CIV. PRAC. & REM. CODE § 51.014. Some such appeals result in an automatic stay of trial or all further trial-court proceedings in the interim, but it depends on who is appealing and what is being appealed. When state defendants/state agencies appeal, the AG regularly asserts that the notice of appeal automatically suspends (“supersedes”) the legal effectiveness of the order being appealed, and that appears to be the law now. In the TRO context, however, a motion for stay is needed.

    So, to deal with that instanter-suspension problem the parties in whose favor the temp. injunction was granted, then are left with the option of requesting relief from the appellate court under rule 29.3 of the Tex. R. App. Proc., which is to say under the higher court’s own authority to issue immediate interim relief in a docketed case. That’s loosely referred to as “reinstatement” of the trial court order, but it’s really the higher court issuing its own order, which may or may not be coterminous with the trial court TRO.

    Such temporary order by the court of appeals can then be attacked through a petition for writ of mandamus filed in the supreme court against the relevant court of appeals (which is what happened in the litigation over local mask mandates and the ballot drop-off disputes, for example prior to the start of the trans-kid litigation).

    In the first round of the trans-kids litigation, the Third Court of Appeals in Austin didn’t even bother to include a copy of the TRO it “reinstated” in its own rule 29.3 order or recite the TRO’s substance. That’s failing the public. It undermines transparency if the higher court issues an order and the substance of it requires reference to trial court documents that may not be easily accessible.

    Nor does it further an appreciation for the nuances of a case with complex legal issues not to mention factual ones concerning particular Doe plaintiffs and their particular situation. Alas, in a polarized society, there is little interest in nuances in any event. Minds have been made up and neither facts nor law are going to make any difference for the ideologically pre-committed.