Texas AG to Austin city personnel: follow state law or get sued

On Tuesday, Austin City Council members passed a resolution directing city personnel to not comply with a new state law that criminalizes gender-related services for children.

Last year, the Texas legislature passed SB 14. Gov. Greg Abbott signed the bill into law, which was challenged in court. The Texas Supreme Court ruled the law could go into effect Sept. 1, 2023.

The bill prohibits procedures and treatments for gender transitioning or gender reassignment from being performed on minors suffering from gender dysphoria and prohibits public money or public assistance from being used to fund such procedures and treatments. It also amends the state Health and Safety Code to prohibit a child health plan, including health care providers and Medicaid, from providing coverage for services "intended to transition a child's biological sex as determined by the child's sex organs, chromosomes, and endogenous profiles," according to the bill language, among other prohibitions.

On Thursday, the Austin City Council voted 10-to-1 to pass a resolution directing city personnel to not comply with the law in several ways. However, each directive it issued was prefaced by a clause, “except to the extent required by law.”

Despite the law prohibiting the action, the resolution states, “except to the extent required by law,” city personnel are prohibited from using “funds, or resources … to investigate, criminally prosecute, or impose administrative penalties upon: (1) a transgender, nonbinary, or gender expansive individual for seeking healthcare or (2) an individual or organization for providing or assisting with the provision of healthcare to a transgender, nonbinary, or gender expansive individual. The City shall not terminate or limit the eligibility for City funding, such as grants or contracts, to an individual or organization for seeking, providing, or assisting with the provision of healthcare to a transgender, nonbinary, or gender expansive individual.”

City personnel are also prohibited from responding to requests for information from jurisdictions if it relates “to that jurisdiction's laws, rules, or regulations imposing criminal punishment, civil liability, administrative penalties, or professional sanctions or the investigation” related to a transgender, nonbinary, or gender expansive individual for seeking healthcare” or individuals or organizations providing “health care” assistance to them.

The resolution states its policies “apply only to cases where individuals or organizations are facing criminal or civil action solely for the provision of or assistance in obtaining gender-affirming healthcare for transgender, nonbinary, or gender expansive individuals that affirms their gender identity and do not apply to investigation, prosecution, or any other criminal or civil action concerning negligence, malpractice, intentional tort, criminal act other than providing or assisting in obtaining healthcare for transgender or nonbinary individuals, or the breach of rules of professional conduct or licensing in the provision of, assistance in obtaining of, or referral to such healthcare.”

The Austin Police Department must follow the city council’s policy directives and the city manager must implement them, according to the document.

After the vote, Attorney General Ken Paxton issued a statement saying all municipalities must follow state law. He also said the resolution was “an empty political statement.”

“On May 2, 2024, the Austin City Council passed a resolution that purportedly directs the City Manager and city employees not to comply with Texas’s prohibition of puberty blockers, cross-sex hormones, and invasive surgeries for children who believe their gender is different than their biological sex,” Paxton said. “Riddled with problems, the resolution starts with the falsehood that such prohibited treatments have ‘proven to be evidence based, medically necessary, and lifesaving.’ In addition to a growing body of medical research rejecting such claims, Texas concluded that the proposed treatments for minors are dangerous and banned the practices by passing SB 14.”

If city personnel refuse to follow the law, Paxton says his office “will consider every possible response to ensure compliance. Texas municipalities do not have the authority to pick and choose which state laws they will or will not abide by. The people of Texas have spoken, and Austin City Council must listen.”

His office also issued a statement saying it will enforce all state laws, including against any physician or health care provider who violates Texas Health and Safety Code § 161.702. The office also “stands ready to act against any locality that adopts an ordinance or implements a policy or practice that provides, aids, or assists individuals or entities providing puberty blockers, cross-sex hormones, or surgeries to children diagnosed with gender dysphoria or otherwise seeking to medically change their biological sex.”