In Abbott v. Doe, (TX App., March 29, 2024), a Texas state appellate court upheld a trial court's preliminary injunction against the state's Department of Family and Protective Services and its Commissioner. The preliminary injunction barred these defendants from taking investigative or enforcement action based on the state Attorney General's Opinion, the Governor's letter and Statement by the Department implementing it that deemed many of the procedures used to treat gender dysphoria to be child abuse. (See prior posting.) The court, concluding that the trial court had not abused its discretion in entering the injunction, said in part:
The injuries Appellees allege, and that the injunction redresses, are that the application or threatened application of the allegedly invalid rule announced in the Department Statement interferes with or impairs the Doe Parents’ right to make imminent decisions about their child’s medical care, Mary’s guarantee of equal rights and equality under law, and Appellees’ rights to due process because the rule is unconstitutionally vague. See Tex. Const. art. I, §§ 3, 3a, 19....
The temporary injunction specifically precludes the Department from taking action against Appellees based on the rule announced in the Department Statement, which references the Governor’s Directive and the Attorney General’s opinion.... The temporary injunction remedies Appellees’ injuries because it temporarily reinstates Department policies and procedures for screening reports and conducting investigations as they existed prior to February 22, 2022.... At that time, the Department would have applied the same policies and standards to a report concerning gender-affirming medical care as to any other case of suspected child abuse.... Before February 22, 2022, the Department had no rule that categorically deemed the provision of gender-affirming medical care presumptively abusive or required investigation and a disposition for every report of gender-affirming medical care without regard to medical necessity....
In Muth v. Voe, (TX App, March 29, 2024), a second case upholding two temporary injunctions issued by a different state trial court, the appellate court said in part:
We hold that at a minimum the Families have established a probable right to relief on their claim that the Department Statement is an invalid rule because it is a rule within the meaning of the APA and it was adopted without following proper rulemaking procedures. This claim is sufficient to support the trial court’s temporary injunctions.
Reuters reports on the decision.
