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American Oversight Executive Director Chioma Chukwu

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American Oversight, “a non-partisan, 501(c)(3) nonprofit ethics watchdog that uses public records requests backed by litigation to expose official misconduct, threats to democracy and abuses of power at all levels of government, has filed an amicus brief with the Texas Supreme Court in support of families and medical providers challenging Gov. Greg Abbott’s February 2022 directive targeting the parents and caregivers of transgender youth, according to a press release from American Oversight.

The brief draws on records obtained by American Oversight from the Department of Family and Protective Services that “directly contradict the state’s claim that the governor’s order did not constitute a new rule under the Texas Administrative Procedure Act,” the press release says.

Chioma Chukwu, executive director of American Oversight, said, “These records make clear what Texas officials have denied in court — that Gov. Abbott’s directive was not symbolic, but a binding mandate that forced DFPS to change how its treats families and medical professionals.”

Chukwu added, “Texas law requires an open process. Instead, state officials imposed devastating changes in secret — leaving families at risk and the public in the dark.”

American Oversight, in its brief, is urging the Texas Supreme Court to recognize Abbott’s directive as a new rule imposed without transparency or accountability in violation of state law, with harmful consequences for transgender youth and their families. Such a ruling “would confirm that Gov. Abbott and state officials sidestepped the law by implementing sweeping new policies without the public notice and comment that the APA requires,” the American Oversight press release stressed,

“The Texas Supreme Court must reject this unlawful attempt to sidestep the law and affirm that accountability and transparency apply even when powerful officials would rather bully children and their families out of sight,” Chukwu said.

In court filings, both the Abbott administration and DFPS have argued that Abbott’s directive to treat gender-affirming care as child abuse did not amount to a formal rule change.

But, the press release states, records produced to American Oversight through a public records request “tell a different

story. Emails and other documents from DFPS show that agency employees and top officials understood Abbott’s directive as a binding mandate requiring DFPS to change its procedures and practices regarding families with transgender adolescents receiving gender-affirming care.”

American Oversight filed its records request in April 2022 after Abbott issued the directive that February. DFPS produced almost 1000 pages of internal email communications that August, including communications of top DFPS officials and instructions from DFPS leadership directing staff not to communicate in writing about gender-affirming care investigations, an apparent attempt to evade transparency, according to the press release.

“The documents now provide a contemporaneous and unambiguous account of how DFPS responded to Abbott’s order and Attorney General Ken Paxton’s legal opinion — and they confirm that the agency treated the directive as binding state policy,” the press release continued.

Since 2022, American Oversight has also filed amicus briefs supporting the families of transgender youth as challenges to Abbott’s directive have made their way through the Texas courts.

— Tammye Nash