Texas Attorney General Ken Paxton filed a lawsuit Monday targeting a federal rule that prohibits discrimination in foster care and adoption services.
Paxton’s office is seeking a judgment against the US Department of Health and Human Services over an Obama-era administrative rule prohibiting foster care and adoption service agencies from using federal money on programs or companies that discriminate on the basis of gender identity, sexual orientation and same – sex marriage.
Paxton argues in the suit that the federal rule, known as the Sexual Orientation and Gender Identity rule, or SOGI, does not prohibit the state from contracting with child placement agencies that are not in compliance.
“There are so many vital religious institutions in Texas and around the country that can aid in making sure foster children are protected and able to find good homes,” Paxton said Monday in a news release announcing the lawsuit. “The SOGI Rule would force them either to adopt a radical woke agenda or surrender their mission of helping children.”
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While the federal rule has no conditions other than those relating to equal protections for all gender identities and sexual orientations, religious officials have previously petitioned that the mandate violates the First Amendment, the Religious Freedom Restoration Act and the Administrative Procedure Act.
Arguing that the rule violates faith-based organizations’ beliefs on “sexual behavior or the nature of marriage,” Paxton is asking the court to strike down the rule and find that Texas’ foster care system is not in violation.
The Texas Department of Family and Protective Services works with faith-based organizations without requiring those groups to comply with the federal standards on gender and sexuality that challenge the organization’s Christian beliefs.
Paxton is concerned that puts the department in jeopardy of losing federal funding unless it refuses to work with those organizations. If the court were to rule in Paxton’s favor, those providers would continue to operate as they do now.
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Paxton also argues that the statute that allows federal agencies to make rules does not allow the agencies to make broad guidelines on discrimination.
“Even if HHS otherwise had the power to promulgate the SOGI Rule, it would still be unlawful because HHS acted arbitrarily and capriciously,” the filing states.
The rule was unsuccessfully challenged in 2019 by a collective of the Archdiocese of Galveston-Houston, the Department of Family and Protective Services and the state of Texas. Trump administration challenges were also thrown out earlier this year.
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In February, Paxton issued a legal opinion on transgender care, which formed the basis of Gov. Greg Abbott’s directive requiring Child Protective Services to investigate as possible child abuse all reports of families with children who are receiving gender-affirming care.
In the following months, the opinion was challenged by medical and legal experts at Yale University and the University of Texas Southwestern Medical Center, who found repeated flaws and errors throughout Paxton’s opinion.
In the report, experts pointed to Paxton’s reliance on outdated and debunked studies, mischaracterization of puberty blockers and hormones, and exaggeration of the prevalence and protocols involved in the surgical removal of genitals and reproductive organs as reasons to call the opinion a “warped picture of the scientific evidence.”
Bill filing begins for the upcoming session of the Texas Legislature
Heading into the legislative session, which begins Jan. 10, lawmakers have filed several bills relating to gender and sexuality issues.
House Bill 42, filed by Rep. Bryan Slaton, R-Royse City, would define providing gender affirming health care as child abuse.
Meanwhile, Rep. Steve Toth, R-The Woodlands, filed House Bill 122, which would criminalize providing gender affirming health care.
A host of bills looking to add protections against gender and sex discrimination have also been filed.