On Tuesday, American Oversight filed an amicus brief in Lambda Legal and the ACLU’s lawsuit against Gov. Greg Abbott and the Texas Department of Family and Protective Services (DFPS) over DFPS’s implementation of Abbott’s February directive calling for the provision of gender-affirming care to be investigated as child abuse.
While Abbott’s office and DFPS have argued that the implementation of the directive does not constitute an official “rule” under the Texas Administrative Procedure Act, records obtained by American Oversight reveal that the agency adopted new policies and procedures in response to Abbott’s directive, and agency staff and other affected entities interpreted the changes as a new rule under state law.
On Feb. 22, Abbott issued the directive the day after Texas Attorney General Ken Paxton had released a non-binding legal opinion labeling such care as abuse. In early March, Lambda Legal and the ACLU sued on behalf of the family of a DFPS employee with a transgender adolescent who was investigated because of the directive, arguing that the rule was improperly adopted. In March, a Texas judge issued an injunction blocking DFPS from further investigating the family, finding that the rule violated the state constitution and had been improperly adopted. Abbott and DFPS have appealed that decision to the Texas Supreme Court.
In its amicus brief, American Oversight details emails it has obtained through public records requests that reveal how DFPS officials and employees responded to Abbott’s directive.
In one email sent on Feb. 22 — the same day as the directive — DFPS Communications Director Patrick Crimmins told other officials that he had circulated to media outlets a statement affirming that the agency would begin investigating reports of gender-affirming care as child abuse “in accordance with Governor Abbott’s directive.” On Feb. 24, another DFPS official told staff that Abbott was “mandating that DFPS investigate” parents who had allowed their children to receive such care. That same day, a DFPS manager asked her team to review Abbott’s directive and wrote, “This new change is coming straight from the state office.”
Other records show that DFPS implemented several new policies in response to Abbott’s directive. DFPS officials directed staff not to discuss the cases or investigations over email or text, even with the families involved. As the Texas Tribune wrote when reporting on the documents obtained by American Oversight, the emails “show how the agency tried to limit the public trail of the cases and control public communications about the controversial investigations while employees across the state internally raised concerns.”
Furthermore, new staffing procedures were instituted, with related cases being assigned to certain DFPS employees rather than individual field staff. These staff were not allowed to assign those cases the lowest priority, ensuring that families providing gender-affirming care to their children were subject to DFPS investigations.
Several DFPS employees expressed confusion and distress over the policy change. On Feb. 24, one employee wrote, “I refuse to punish those that are part of the community simply because they are trans.” Another wrote, “I have told my boss I will resign before I RTB on a family whose child is transitioning.” (RTB refers to a “reason to believe” that abuse occurred.)
The agency also opened new investigations in response to Abbott’s directive. While on the day of Abbott’s announcement there were “no pending investigations of child abuse” related to gender-affirming care, by the next day emails show that there were several investigations in the intake stage.
American Oversight’s Tuesday amicus brief urges the Texas Supreme Court to review the records, as they are relevant to the question of whether DFPS’s implementation of the governor’s directive constitutes a new rule under state law, and asks the court to affirm the earlier statewide injunction barring DFPS from conducting investigations into families and medical providers solely on the basis of the individuals having provided adolescents gender-affirming care.
The brief is available here and below.