TEXAS HOUSE LGBTQ CAUCUS
An Official Caucus of The Texas House of Representatives
March 25, 2022
Jaime Masters
Commissioner
Texas Department of Family and Protective Services
701 West 51st Street
Austin, Texas 78751
Re: DFPS Investigations Into Parents Providing Their Children with Gender-Affirming Care
Dear Commissioner Masters —
We, the undersigned Members of the Texas House LGBTQ Caucus, the Mexican American Legislative Caucus (MALC), the Texas House Democratic Caucus (TxHDC), the Texas Legislative Black Caucus (TxLBC), the Texas Legislative Study Group (TxLSG), and the Texas Women’s Health Caucus (TxWHC) write to express ongoing concerns related to the Texas Department of Family and Protective Services (DFPS) investigations into Texas transgender children and their parents for the provision of life-saving, medically necessary gender-affirming care. The Texas Family Code is clear, families must provide medically necessary healthcare to their children. Moreover, the continuation of these invasive inquiries runs grossly afoul of the Texas Administrative Procedure Act (APA) and our state’s rulemaking processes designed to ensure robust public input. We request confirmation that these investigations have fully
halted as ordered by not one, but two courts.
I. The “Rule” Adopted by DFPS Through Implementation of Governor Abbott’s Directive is
Procedurally Void and Legally Ineffective.
As you are aware, Attorney General Ken Paxton recently issued a non-binding and widely-criticized1 opinion2 that equated the provision of life-saving gender-affirming care to transgender youth with child abuse as defined under Texas law. In response, Governor Greg Abbott sent you a letter directing DFPS to investigate these practices. The non-binding opinion and subsequent directive have no legal effect and cannot change Texas law nor usurp the constitutional rights of Texas families. Despite this fact, it is our understanding that investigations continued up until just a few days ago when the Texas Third Court of Appeals upheld3 a Travis County District Court statewide injunction.4
Based on undisputed facts and law as pled by the parties during arguments before the lower court, your
February 22, 2022 statement5 adopting Governor Abbott’s directive prescribes a new DFPS enforcement
policy with respect to the investigation of gender-affirming care to minors as child abuse and constitutes a
rule6 for the purposes of the Texas Administrative Procedure Act (APA). In so doing, you entirely bypassed
the APA’s mandatory procedural requirements for promulgating agency rules and provided no public notice
nor an opportunity for public comments.7 In its initial granting of the statewide temporary injunction, the
court explicitly opined that “The improper rulemaking and implementation by Commissioner Masters and
DFPS are…void.”8
Sources:
1 https://www.hrc.org/news/discrimination-is-bad-for-business.
2 The opinion released by Paxton cites highly partisan, outdated, and inaccurate information that ignores the consensus of every
major medical association and the evidence-based and peer-reviewed standards of care.
3 https://www.houstonpublicmedia.org/articles/news/politics/2022/03/22/421638/texas-appeals-court-reinstates-temporary-ban-
of-investigations-into-gender-affirming-care/.
4 https://www.kxan.com/news/texas/travis-county-judge-blocks-child-abuse-investigations-into-families-of-trans-kids/.
5 https://www.cnn.com/2022/02/23/us/texas-attorney-general-gender-affirmation-child-abuse/index.html.
6 Tex. Gov’t Code Section 2001.003(6).
7 Opportunities for public participation, mandated by the APA, serve as the foundation for open, inclusive, and transparent
government practices.
8 https://www.aclu.org/sites/default/files/field_document/court_orders.pdf.
Under no circumstances should DFPS continue to investigate current cases, nor open new ones, for how “can DFPS defend and apply a ‘rule’ with no legal effective date?”9 Adhering to fundamental rule-making procedures is critical to upholding the guardrails that protect those we serve.
II. The Investigations at Issue Violate the Constitutional and Due Process Rights of Texans and
the Separation of Powers.
Even if it was determined that DFPS followed proper APA rulemaking procedures, and even if the Texas
Legislature endorsed these investigations, said practices would still suffer from constitutional and due
process deficiencies that would warrant an immediate halt. Through these invasive inquiries, the department
you lead has blatantly disregarded the protections afforded under the Texas Constitution against vague
governmental enactments10, the intrusion on parental rights11, and violations of the guarantee of equality
under the law.12
Furthermore, Article II of the Texas Constitution establishes a clear separation of powers that defines our
system of government. Unquestionably, your actions have violated this principle by impermissibly
encroaching into our legislative domain.13
Bills seeking to define the provision of gender-affirming care as child abuse have been considered, and
ultimately rejected, by the Texas Legislature. Should you choose to continue implementing Governor
Abbott’s directive as it relates to already opened cases, you would set a dangerous precedent establishing
that one man is above the law and not accountable to a co-equal branch of government that has jurisdiction
over all matters pertaining to DFPS.14 The rules should apply to everyone, and not be cast aside whenever
a political agenda is thwarted.
The irreparable harm of continuing to violate the Texas Constitution and flaunt the will of the Legislature
will have lasting detrimental effects on our system of governance. We ask that you do not let this happen
on your watch.
III. Confirmation is Needed on Whether Already Opened Investigations Have Halted.
It is our understanding that you directed your employees to stop opening new investigations into transgender
children and their parents in the wake of the Third Court of Appeals’ recent reinstatement of the statewide
injunction.15 However, it is unclear whether those investigations already in motion have been halted. When
asked about this, DFPS stated “as there are legal developments, we continue to follow the law each step of
the way.”16 Ominously, a similar reasoning was used by your agency to ignore the district court’s initial
injunction.
The injunction imposed on DFPS could not have been clearer. You are enjoined from “complying with the
terms” of Governor Abbott’s directive issued on February 22, 2022.17 In no way should this ruling be read
to allow for the continuation of already open investigations. Should you choose to interpret this ruling in
such an erroneous manner, you would be ignoring the express will of the courts designed to remedy
governmental transgressions deserving of the highest forms of scrutiny. Such disregard for the rule of law
would amount to your intentional participation in a scorched-Earth effort to dismantle our justice system.
We request that you do not go down this dangerous path and that you confirm that all investigations, both
open and new, have been halted.
IV. Conclusion
9 Doe v. Abbott. Brief amicus curiae of Professor Ron Beal. 15 Mar. 2022,
https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a6cbbd53-f83d-4649-a4d2-
713288805444&coa=coa03&DT=Other&MediaID=ef5c7db1-4627-4f5b-a33a-8f1848cd7171.
10 As described in Ex parte Jarreau, 623 S.W.3d 468, 472 (Tex. App—San Antonio 2020) (quoting Sessions v. Dimaya, 138 S.
Ct. 1204, 1212 (2018)).
11 As discsussed in Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); see also Tex. Fam. Code § 151.001(a)(11).
12 Under the Texas Constitution, all persons “have equal rights,” Tex. Const. art. I, § 3, and “[e]quality under the law shall not be
deneid or abridged because of sex.” Tex. Const. art. I, § 3a.
13 https://www.aclu.org/sites/default/files/field_document/court_orders.pdf.
14 https://house.texas.gov/committees/committee/?committee=C310.
15 https://www.dallasnews.com/news/politics/2022/03/23/ag-paxton-takes-fight-to-supreme-court-as-texas-halts-investigations-
into-parents-of-trans-children/.
16 https://twitter.com/lmcgaughy/status/1506766242882936841?cxt=HHwWkoCzqcX6jekpAAAA.
17 https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/03-22-00126-cv_cv22-126.ord_.pdf.
The law is clear — the execution of these investigations run grossly afoul of both our state’s rulemaking
processes designed to ensure robust public input and the Texas Constitution. To use Governor Abbott’s
defective directive as a basis to continue this terrorization of Texas families would set a dangerous precedent and put powerful individuals above the law.
Furthermore, these illegal attacks launched by DFPS have caused immediate, real, tangible, and significant
harm to trans youth and their families. Families are fleeing our state, health care providers are reconsidering whether to provide the medically necessary best practice healthcare that trans youth need, and trans youth are considering suicide. This weaponization of DFPS against innocent Texas children and their families represents the antithesis of your organization’s mission to promote safe and healthy families and to protect children from abuse, neglect, and exploitation. DFPS resources must be directed at the very real, documented problems facing Texas’ child welfare system and not at causing illegal and irreparable harm to vulnerable young people for political gain.
For the reasons articulated herein, we request confirmation of a full halt to harmful unfounded
investigations into transgender children and their families for the provision of live-saving medically
necessary gender-affirming care.
Sincerely,
Download this press release: