Texas Supreme Court justices will decide how much information PFLAG will have to give Attorney General Ken Paxton's office for his investigation into medical providers allegedly violating the state's ban on gender-affirming care for minors — 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's investigation: getting relevant information.
"We think the best this court can do is to tell the trial court these are not proceedings that initiate the traditional trial process," Peterson said. "These are just discovery objections that you should handle like any other discovery objection and attempt to resolve expeditiously."
The state's ban on gender-affirming care for minors, also known as Senate Bill 14, took effect in September 2023 after an unsuccessful lawsuit — in which PFLAG was a plaintiff — 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 "endocrine disorder" or something else besides gender dysphoria, psychological stress over one's 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 "gender-incongruent" treatments. That violates the DTPA, Paxton's office alleges.
The investigation brought the OAG to LGBTQ advocacy groupPFLAG — a national organization with a membership model — 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 "contingency plans," "alternative avenues to maintain care in Texas," and "affirming general practitioners" 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's office put in two investigative demands to PFLAG for records on families trying to access gender-affirming care. PFLAG sued the OAG in Travis County district court, arguing the agency's 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's 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's office made a direct appeal to the state's 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't show the good cause required to avoid following the OAG's demand.
Paxton's 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.
"Those documents," he said, "if 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."
PFLAG is asking the Texas Supreme Court to uphold the trial court's ruling. Allissa Pollard, the organization's 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's Hospital's settlement with the state in a lawsuit over documents related to Texas patients receiving gender-affirming care from the hospital.
"PFLAG's mission is to support families, including families with transgender children," Pollard said. "It 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."
Toluwani Osibamowo is KERA's law and justice reporter. Got a tip? Email Toluwani at tosibamowo@kera.org.
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