Case: Doe v. Abbott

This is a case about transgender children in Texas. For regular updates, please refer to the ACLU resource.

On February 18, 2022, the Texas Attorney General issued Opinion No. KP-0401, finding that gender-affirming care, including gender-confirmation surgeries and hormone-replacement therapy, was child abuse as defined by the Texas Family Code § 261.001(1)(A). The section defines "abuse" as mental, emotional, or physical injuries that harm a "child's growth, development, or psychological functioning." Citing this opinion, on February 22, 2022, the Governor of Texas directed the state Department of Family and Protective Services (DFPS) to investigate parents who provide gender-affirming care to their children as potential child abusers. The Governor also said that certain mandatory reporters such as medical providers and teachers, as well as the general public, were potentially subject to criminal penalties for failure to report gender-affirming care as child abuse.

In response to the governor's directive, DFPS investigated multiple families of transgender children. One of those families are Plaintiffs here––the mother, herself a DFPS employee, was placed on administrative leave in response to the letter because her transgender child received gender-affirming care. On March 1, 2022, the family, along with a licensed psychiatrist who works with transgender children and is a mandatory child abuse reporter, sued the Governor, DFPS, and the commissioner of state health services in Travis County district court. Represented by the ACLU, its Texas affiliate, Lambda Legal, and private counsel, Plaintiffs alleged that the directives "were issued without proper authority, in violation of the Texas Administrative Procedures Act, the separation of powers requirements of the Texas Constitution, and the [state] constitutional rights of transgender youth and their parents." Plaintiffs sought declaratory relief and an immediate and permanent injunction against enforcement of the law. 

The next day, on March 2, 2022, the district court granted Plaintiffs' application for a temporary restraining order, enjoining the law's enforcement against the family and the psychiatrist. 2022 WL 628912. The court found that the family and psychiatrist would face irreparable harm if the child abuse law were enforced against them. The court did not enjoin enforcement of the law against any other parties. Defendants appealed this TRO the next day. 

On March 9, 2022, the Texas Court of Appeals, 3rd District denied Defendants' appeal for want of jurisdiction. 2022 WL 710093. Defendants had argued that the March 2 TRO implicitly denied their "plea to the jurisdiction," which is the Texas state court vehicle for a claim that the court lacks subject matter jurisdiction. If that were the case, the appellate court would have jurisdiction to vacate the TRO. But the appellate court found that the trial court's TRO grant was not an implicit denial of the State's subject matter jurisdiction claim––the state had filed the claim in the trial court "minutes before" the trial court TRO hearing, and did not request a ruling on the plea. Since the TRO was not an implicit denial of the plea, the appellate court did not have jurisdiction to vacate it. 

Back in the district court, the parties litigated the application for a temporary injunction, which would apply to any enforcement of the child abuse law under the directive, not just the plaintiffs here. On March 11, 2022, the district court granted the temporary injunction after a hearing the same day. 2022 WL 831383. The court found the governor's directive was beyond the scope of his authority and unconstitutional because it "violate[d] separation of powers by impermissibly encroaching into the legislative domain." The court adopted its prior findings that the plaintiffs would be irreparably injured by enforcement of the law––the mother of the transgender child who worked at DFPS had already been placed on leave and anyone convicted of child abuse would be placed on a state registry. The court's order enjoined enforcement of the directive against anyone in the state until the issues in the case were resolved on the merits. The state immediately appealed the decision.

On March 21, 2022, the appellate court issued an order reinstating the temporary injunction, which had been suspended pending resolution of the appeal according to state law and the Texas Rules of Appellate Procedure. 2022 WL 837956. Two days later, Defendants filed a Petition for a Writ of Mandamus with the Texas Supreme Court requesting the court to issue a writ directing the appellate court to withdraw its March 21 order. 2022 WL 945519. On May 13, 2022, the Texas Supreme Court issued an opinion holding that the appellate court abused its discretion to issue a statewide order. 645 S.W.3d 276. Justice Blacklock, writing for the Court, noted that "[j]ust as the Governor lacks authority to issue a binding 'directive' to DFPS, the court of appeals lacks authority to afford statewide relief to nonparties." However, the Court left in place the injunction as it applied to the Plaintiffs in this case.

Because the injunction against the Governor's directive was narrowed in scope to only apply to Plaintiffs in Doe, on June 8, 2022, PFLAG National and three Texas families filed suit also challenging the directive. Please see here for updates on PFLAG v. Abbott. 

As of March 2024, this case is ongoing.