Legal Restrictions on Gender-Affirming Care for Youths

In February of 2022, Texas Attorney General Ken Paxton released a statement equating gender-affirming care of transgender children to child abuse. This statement was echoed by Texas Governor Greg Abbott who directed the Department of Family and Protective Services to open investigations into parents who provide this care. Abbott urged teachers, doctors, and the general public to report instances of parents providing this type of care. Following this order, DFPS opened investigations into at least nine families.

In March, one of these cases came before Judge Amy Clark Meachum who issued a temporary restraining order related to the parties of that case, which was later expanded to a statewide injunction against these investigations. In this case, the plaintiffs are anonymous John and Jane Doe, parents of a transgender child who have been investigated in regards to their teenager receiving gender-affirming care. The mother, Jane Doe, is an employee of DFPS and is at risk of losing her job and has been placed on administrative leave due to the investigation. Also included in the suit is a psychologist, Megan Mooney, who states that Abbott’s order is a violation of her ethical obligations. Mooney could face civil suits if she complies with the order, or face prosecution if she does not. She has also testified to the impact that this will have on rates of depression and other mental health issues.

Paxton appealed the injunction to the Third Court of Appeals who upheld the ruling of the lower court and reinstated the statewide temporary injunction. However, in May, the Texas Supreme Court issued a ruling that the appellate court had overstepped on procedural grounds. The Court stated that while the appellate court can reinstate an injunction to preserve the parties’ rights, the party at issue here is the parents directly involved in the suit, not all parents of transgender children in the state. The Supreme Court also issued additional restrictions on Paxton and Abbott’s order stating, ​​“DFPS’s preliminary authority to investigate allegations does not entail the ultimate authority to interfere with parents’ decisions about their children, decisions which enjoy some measure of constitutional protection whether the government agrees with them or not.”

In light of this ruling, many Texans are concerned about what this means for their children receiving medical care, and for them as parents subject to investigation. This has resulted in an increase of families considering relocation, at least temporarily, as many hospitals shut down their programs for gender-affirming care for minors and DFPS begins to investigate again.

While Texas and other conservative-leaning states may restrict access to gender-affirming care, state laws will continue to protect gender identity and expression in Colorado. On May 20, 2021, Colorado H.B. 21-1108 was signed into law which expanded Colorado laws on anti-discrimination to protect “all regardless of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry” in all places of public accommodation including schools.

Colorado also contains the only comprehensive care center in the Rocky Mountain region specifically set up for gender-diverse children, adolescents and young adults- the TRUE Center for Gender Diversity at Children’s Hospital of Colorado. Their multidisciplinary team includes experts in adolescent medicine, endocrinology, art therapy, nutrition, social work, psychology and other areas. Some services they offer include puberty-blocking medications, hormone therapy, gender counseling, nutrition services, referrals to therapy and support groups and assistance with legal name and gender marker changes.

As more states begin following Texas, Colorado promises to remain a safe haven for transgendered children, adolescents and adults.

References:

https://www.abajournal.com/news/article/texas-judges-statewide-injunction-blocks-investigations-of-parents-of-transgender-kids

https://www.abajournal.com/web/article/parents-of-transgender-child-win-tro-that-blocks-texas-from-investigating-them

https://www.nbcnews.com/nbc-out/out-politics-and-policy/texas-families-trans-kids-plan-flee-state-rcna23633

https://www.texastribune.org/2022/05/13/transgender-teens-child-abuse-texas/

https://www.bloomberg.com/news/articles/2022-05-13/top-texas-court-lifts-injunction-on-abbott-s-gender-care-rules

https://www.childrenscolorado.org/doctors-and-departments/departments/gender-diversity-center/

Protection Orders

What is a Civil Protection Order?

Commonly referred to as a “restraining order,” a civil protection order is an order issued by the court that prohibits the restrained person from contacting, harassing, injuring, intimidating, molesting, threatening, touching, or stalking the protected person. In Colorado, there are two types of civil protection orders: (1) Temporary Protection Orders; and (2) Permanent Protection Orders. A violation of any civil protection order is a criminal misdemeanor offense, which carries a maximum $5,000 fine and up to 18 months in jail.

What is a Temporary Protection Order?

A Temporary Protection Order is a protection order that lasts for up to 14 days- or up to one year if the parties agree to continue it. A person seeking a Temporary Protection Order, called the Petitioner or Plaintiff, will first file a motion with the Court stating that the subject of the protection order places him or her in“imminent danger.” The Court will then hold a hearing -- generally on that same day -- in which the Petitioner further explains the “imminent danger” posed by the subject of the order. Unlike with permanent protection orders, the Respondent does not have to be present for the Court to issue a temporary protection order. Upon finding that the Petitioner has proven “imminent danger,” the Court will then set a date for a permanent protection order hearing, at which the Court will determine whether it is necessary to make the temporary protection order permanent. If the Court does not issue a permanent protection order, the temporary protection will automatically expire on the date of the permanent protection order hearing.

What is a Permanent Civil Protection Order?

As the name suggests, a permanent protection order is nearly identical to the temporary protection order except that it has no expiration date and may only be obtained at the permanent protection order hearing after the Respondent/Defendant has been served with the Temporary Protection Order. At the hearing, you will need to prove the following two elements by a preponderance of the evidence:

1) “That the respondent has committed acts constituting grounds for issuance of a civil protection order” and;

2) “That unless restrained [the respondent] will continue to commit such acts or acts designed to intimidate or retaliate against the protected person.”

However, unlike the temporary protection order hearing, the restrained person will have the opportunity to present evidence and testimony as to why the protection order should not be made permanent. After hearing from both parties, the Court will then decide whether to issue a permanent protection order or terminate the temporary protection order. Permanent Civil Protection Orders in Colorado are permanent forever unless they are later modified or dismissed.

How are Civil Protection Orders Different from Criminal Protection Orders?

Generally, both civil and criminal protection orders contain similar language and result in the same consequences if violated. However, the two different protection orders differ significantly in how they are obtained and issued. Unlike the civil protection order, which requires a request from the Petitioner, the criminal protection order is issued at the Defendant’s first court appearance -- even if the alleged victim does not request it. Accordingly, the criminal protection order is also referred to as a “Mandatory Protection Order.”

While a civil protection order can be made permanent, a criminal protection order only lasts until the case is dismissed or the Defendant completes his or her sentence or probation. Because a criminal protection order will eventually expire, if you believe the danger will continue, it usually is a good idea to obtain a permanent civil protection order regardless of whether you have a Mandatory Protection Order. At Boeckx Law, we specialize in both obtaining and defending against civil protection orders. Give us a call if you need assistance.

Collecting Evidence

If you have a divorce, custody, of protection order case that’s bound for court, then it’s time to start collecting documentary evidence to support your positions. Our expert trial attorneys can help you organize your documents to ensure maximum persuasive value in court. But, before we do that, consider these tips to get started on your own:

Start Recording: In cases involving domestic violence or verbal abuse, the perpetrators own words often do them in. Colorado is a “one party consent” state -- which means you can record telephone calls and in-person conversations without the other party’s consent or knowledge. There are many free apps you can download to record calls in the background. You can also download a voice recorder app to your phone and let it run in your pocket while talking to someone in person. Never stay in a dangerous situation for the sake of creating a recording. But, feel free to press that red circle if you know you are safe and there’s evidence in the air.

Social media posts: Screenshots are the best way to keep track of social media posts as the user can later delete them. Try to ensure you include identifying information about the poster and the date of the post in the screenshot. If you use Google Chrome as your internet browser you can highlight the part of the person’s facebook page you want to save and then right click and “print” the selection as a pdf. This makes a nice clean exhibit.

Text messages: Screenshots from your phone are also a great way to keep copies of text messages. Make sure you go far back enough to show the date and time of the message. With a lot of smartphones including iPhones it does not show up a date or time until a few days later. Make sure you take the screenshot after a timestamp has appeared on the message(s) before taking a screenshot. Try not to respond angrily or emotionally as the texts can also be used as evidence against you!

Backing up data: Make sure you backup all your screenshots, recordings and other evidence securely to the cloud in case you lose your phone or the other party gets a hold of your evidence and tries to destroy it. Forward emails to a new secret address or to a trusted family member. The safest option is to create a new cloud account that the other party is not aware of and ensure it is securely password protected.

Start now: Don’t wait to start collecting evidence until you know you need it or try to “bait” a person into giving you the evidence you need. This can put you in danger and also cause the court to question your motives. Also, it gives the other party the ability to start deleting information like social media posts once they know a court case is imminent. Start collecting evidence before you know you need it. This will also prove to the court that this is an ongoing issue, not a new or isolated incident.

Don’t worry: While documentary evidence is extremely helpful to prove a case, remember that your own testimony is also considered evidence. So, even if you don’t have any physical evidence you can still testify and present your case to the judge. A lack of physical evidence does not mean you will not prevail in your case.

At Boeckx Law we are experts in collecting evidence and presenting it at trial. Let us help you present your case!