Texas Supreme Court justices will decide how much information PFLAG will have to give Attorney General Ken Paxton鈥檚 office for his investigation into medical providers allegedly violating the state鈥檚 ban on gender-affirming care for minors 鈥� a request the LGBTQ rights organization says is unconstitutional.
After a Travis County district court ruled in March that PFLAG could withhold some of its records from the Office of the Attorney General (OAG), the question in front of the high court Tuesday was whether the trial court followed the proper steps in coming to its decision.
Solicitor General William Peterson told justices the trial court dragged out the first step of the OAG鈥檚 investigation: getting relevant information.
鈥淲e think the best this court can do is to tell the trial court these are not proceedings that initiate the traditional trial process,鈥� Peterson said. 鈥淭hese are just discovery objections that you should handle like any other discovery objection and attempt to resolve expeditiously.鈥�
The state鈥檚 ban on gender-affirming care for minors, also known as Senate Bill 14, took effect in September 2023 after an 鈥� in which PFLAG was a plaintiff 鈥� challenging its legality.
The OAG enforces the law through its Consumer Protection Division, which also enforces the Deceptive Trade Practice Act (DTPA). The division is investigating whether medical providers are trying to get around the ban by prescribing hormones under the guise of treating an 鈥渆ndocrine disorder鈥� or something else besides , psychological stress over one鈥檚 gender identity that is often the precursor to transitioning.
Specifically, the OAG claims some providers prescribe medicine under the endocrine disorder diagnosis because some insurers would automatically reject payment for 鈥済ender-incongruent鈥� treatments. That violates the DTPA, Paxton鈥檚 office alleges.
The investigation brought the OAG to LGBTQ advocacy groupPFLAG 鈥� a national organization with a membership model 鈥� which the office says has information about providers who were trying to get around the ban. It points to a July 2023 affidavit in the lawsuit against in SB 14 which PFLAG CEO Brian Bond said he had spoken to various parties about 鈥渃ontingency plans,鈥� 鈥渁lternative avenues to maintain care in Texas,鈥� and 鈥渁ffirming general practitioners鈥� in case the law was allowed to go into effect in September of that year.
PFLAG says Bond made those comments before the gender-affirming care ban had taken effect, and they have no documents or communications showing anyone evading the law.
Still, Paxton鈥檚 office put in to PFLAG for records on families trying to access gender-affirming care. the OAG in Travis County district court, arguing the agency鈥檚 demands were overbroad and violated their members First and Fourth Amendment rights to free speech and freedom from unreasonable searches, respectively.
After a temporary restraining order and injunction in PFLAG鈥檚 favor and a trial in 2024, Travis County District Judge Amy Clark Meachum ruled earlier this year to limit the scope of the information PFLAG had to give the OAG to only non-confidential information.
Paxton鈥檚 office made a direct appeal to the state鈥檚 highest civil court. The OAG argued Meachum improperly held a full merits trial in the case, taking months to let the office enforce its civil investigative demand. The OAG also argued PFLAG didn鈥檛 show the good cause required to avoid following the OAG鈥檚 demand.
Paxton鈥檚 office wants to enforce its revised demand that would require the LGBTQ advocacy group to hand over documents and communications about what Bond said in the affidavit and any medical practitioners providing gender-affirming care that PFLAG has recommended to families, Peterson said.
鈥淭hose documents,鈥� he said, 鈥渋f they existed, and if they truly did refer to contingency plans of alternative avenues to maintain care in Texas after the effective date of SB 14, would be highly relevant to the investigation that's being conducted by the Consumer Protection Division into doctors misrepresenting the treatment that's been made.鈥�
PFLAG is asking the Texas Supreme Court to uphold the trial court鈥檚 ruling. Allissa Pollard, the organization鈥檚 attorney, told justices it has worked with the OAG to comply and reach a happy middle ground.
PFLAG is also concerned that the organization would be forced to stop doing business in Texas, Pollard said, referencing Seattle Children鈥檚 Hospital鈥檚 with the state in a lawsuit over documents related to Texas patients receiving gender-affirming care from the hospital.
鈥淧FLAG's mission is to support families, including families with transgender children," Pollard said. 鈥淚t in no way advocates that anyone break the law. It's not aware of people breaking the law. It wants to get them the information that they need while still protecting their members' First Amendment rights.鈥�
Toluwani Osibamowo is 四虎影院鈥檚 law and justice reporter. Got a tip? Email Toluwani at tosibamowo@kera.org.
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