In RE JEFF YOUNGER v. the State of Texas

          Supreme Court of Texas
                           ══════════
                            No. 22-1137
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                         In re Jeff Younger,
                                Relator

   ═══════════════════════════════════════
           On Petition for Writ of Mandamus
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      JUSTICE BLACKLOCK, joined by JUSTICE YOUNG, concurring in the
denial of the petition for writ of mandamus.

      This pro se mandamus petition arises from a child-custody
dispute involving twin boys, one of whom has exhibited confusion about
his gender. Mother, who has custody of the boys, recently moved to
California after a Dallas County district court, in September 2022,
authorized Mother to reside with the children anywhere in the
continental United States.     Father, the relator in this Court, is
concerned that Mother’s move to California will bring about the medical
“transitioning” of his son.   Three months after the district court
authorized the move to California, Father belatedly seeks an emergency
order from this Court requiring their return.
      I concur in the Court’s denial of the petition because Father is
already in possession of a court order prohibiting Mother from doing
precisely what he fears she will do with his son. In October 2021, the
district court—with Mother’s full agreement, and indeed at her
request—ordered that:
       neither parent may treat a child with hormonal
       suppression therapy, puberty blockers, and/or transgender
       reassingment surgery (if any) without the consent of the
       parents or court order.
       This agreed order is binding on both parents and enforceable by
contempt, no matter where they reside. The effect of the order is that
neither parent has the legal authority to consent unilaterally to
gender-transition therapy for their son, whether that therapy takes
place in California, Texas, or elsewhere. As long as this order is in effect,
Mother’s parental rights do not include the right to obtain
gender-transition therapy for her son. That is just as much the case in
California as it is in Texas. Mother freely acknowledges that she is
bound by this order in both Texas and California. What is more, Mother
has flatly denied to this Court that she will seek to evade the district
court’s order while she is in California. As a result, should she fail to
honor her promise as Father fears, contempt of the district court’s order
would not be her only concern.
       Father believes that California’s enactment of Senate Bill 107,
which goes into effect on January 1, 2023, will enable Mother to evade
the Texas court order prohibiting her from unilaterally consenting to
gender-transition therapy. Father misreads California’s new law. By
my reading of SB 107, Father’s fears are no more likely to be realized in
California under SB 107 than they were before the bill’s enactment.




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       Described by its lead author as a “trans refuge” bill designed in
part to respond to “executive and legislative action in Texas,”1 the bill
certainly casts a wide net in pursuit of its objectives. The bill contains
several provisions barring enforcement in California of “a law of another
state” or “another state’s law” that prohibits “gender-affirming health
care.” Thus, SB 107—both as advertised and as written—is California’s
response to other states’ legislative enactments or administrative rules
outlawing gender-transition therapy. While SB 107’s position on other
states’ laws is clear, I see no provision in the bill that would alter the
enforceability, in California, of a Texas court order requiring divorced
parents to agree before subjecting their child to gender-transition
therapy.
       Father reads SB 107’s prohibitions on the enforcement of another
state’s “law” against gender-transition therapy as a prohibition on
enforcement in California of court orders limiting access to such
therapy.   It is not.   A court order allocating the parental rights of
divorced parents based on case-specific judicial findings about the best
interests of their children is in no way “a law of another state.” And in
the very unlikely event California’s courts interpreted their statute in
such an odd way, they would of course run head long into the Full Faith
and Credit Clause. U.S. CONST. art. IV § 1.
       The bill’s authors were likely aware of the prevailing
interpretation of the Full Faith and Credit Clause, under which states


       1 Press Release, Scott Weiner, Senator, California State Senate, Senator

Weiner’s Statement on Bill to Provide Refuge for Trans Kids and their Families
(Sept. 30, 2022), https://sd11.senate.ca.gov/print/1042.




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have some leeway to deny enforcement of other states’ laws on policy
grounds but little or no leeway to deny enforcement of other states’
courts’ judgments. The U.S. Supreme Court’s “decisions support no
roving public policy exception to the full faith and credit due judgments.”
Baker v. Gen. Motors Corp., 

 (1998) (internal
quotations omitted).       Understanding this important distinction—
evident throughout the text of SB 107—between “another state’s law”
and the actions of another state’s courts is essential to correctly
understand the very limited extent to which California could refuse
recognition of the Dallas County district court’s child-custody
determinations, even if it wanted to do so. While SB 107 treads close to
territory prohibited by the Full Faith and Credit Clause—and
ultimately may be found to transgress it in various ways—nowhere does
the bill purport to prevent enforcement in California of out-of-state
child-custody orders establishing which parents may consent to
gender-transition therapy.
       To summarize, under an existing Texas court order that Mother
agreed to and that Mother acknowledges is binding on her, Mother lacks
the legal right to consent to gender-transition therapy for her son. This
legal disability is just as real in California as it is in Texas, and Mother
readily acknowledges this as well. When a custody order specifies that
joint parental consent is required, then a California doctor, just like a
Texas doctor, must ensure that the appropriate parents have consented
to treatment administered to their children.2 Under the district court’s

       2 People v. Superior Ct. (Humberto S.), 

, 605 n.3 (Cal. 2008)

(“Under Family Code section 3083, a court entering a joint custody order must




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order, any doctor in any state giving gender-transition therapy to
Father’s son without Father’s permission would do so without the
lawfully required parental consent.3 Nothing in SB 107 changes any of
this.
                                     ***
        Father’s further concern is that a California court could
undermine the Texas order at Mother’s request.             He points to the
following provision of California law, amended by SB 107 as shown in
bold:
        A court of this state has temporary emergency jurisdiction
        if the child is present in this state and the child has been
        abandoned or it is necessary in an emergency to protect the
        child because the child, or a sibling or parent of the child,
        is subjected to, or threatened with, mistreatment or abuse,
        or because the child has been unable to obtain
        gender-affirming health care or gender-affirming
        mental health care, as defined by Section 16010.2 of
        the Welfare and Institutions Code.
        Cal. Senate Bill 107, § 5 (modifying CAL. FAM. CODE § 3424(a)).
Under the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), a version of which is the law in both California and Texas, a
California court is obligated to respect a Texas court’s custody orders
and cannot modify the Texas court’s orders unless the Texas court
relinquishes jurisdiction—an action reviewable by mandamus. TEX.


specify the circumstances in which joint parental consent is required; in all
other circumstances, the consent of one parent is sufficient.”).
        3 See Am. Acad. of Pediatrics v. Lungren, 

 (Cal. 1997)

(“The requirement that medical care be provided to a minor only with the
consent of the minor’s parent or guardian remains the general rule, both in
California and throughout the United States.”).




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FAM. CODE §§ 152.201(a)(2), .203; accord CAL. FAM. CODE §§ 3421(a)(2),
3423.
        Father is nevertheless concerned that the above-quoted provision
could be used to temporarily authorize gender-transition therapy in
direct contravention of the Texas order.4          Yet to obtain such an
emergency order from a California court, Mother would have to take the
position that an existing court order she agreed to now poses an
emergency threat to her child. Mother has repeatedly asserted in court
that the Texas order is desirable and in the child’s best interests, which
would make it quite difficult for Mother to argue the contrary position
to a California court, even if that were her intention. Mother would also
have to claim that the emergency is so dire that there is no time to ask
the Texas court to amend its order—a highly doubtful proposition in the
age of video hearings. The California court would have to consult with
the Texas court. CAL. FAM. CODE § 3424(d). And the California court
would have to decide to take the extraordinarily unusual step of issuing
an emergency order directly undermining another state’s court order
even though the other state’s court was readily available to hear a
request to modify the order.


        4 Even before SB 107, a California court that considered lack of
gender-transition therapy to be an emergency case of mistreatment of a child
could have invoked temporary jurisdiction under section 3424(a)). SB 107
makes lack of gender-transition therapy an explicit ground for finding an
emergency that qualifies for temporary emergency jurisdiction. But a judge
inclined to view such a situation as an emergency threat to a child was already
empowered to invoke temporary emergency jurisdiction. And SB 107 does not
mandate that courts find that the lack of such therapy constitutes an
emergency justifying temporary jurisdiction. It leaves that question entirely
up to the courts, as it was before SB 107.




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       Concern that any of this will happen would be entirely speculative
in any case. In this case, given that Mother has now represented to both
this Court and the district court that she has no intention of trying to
make it happen, it is not merely speculative but potentially prohibited
by principles of estoppel.
       This Court cannot intervene based on tenuous speculation about
what other courts might do in the future at the request of a party who
may never ask. The only court to have acted so far has preserved
Father’s right to withhold consent to gender-transition therapy for his
son. That right is enforceable in California, where Mother lacks the
legal authority to consent to such therapy for the child, both before and
after SB 107. If the district court modifies the October 2021 order
regarding medical care—or attempts to acquiesce in a California court’s
desire to do so—Father could seek immediate appellate relief.5 That
case might raise important questions about whether medically or
surgically “transitioning” a child against the wishes of a fit parent can
ever be in the child’s best interests.6 This is not that case.




       5 This Court makes every effort to consider pro se filings with rigor and

with leniency. Apart from its misunderstanding of the law, Father’s petition
suffers from other procedural and substantive defects that would make
granting it problematic. Given the complexity of this case’s history and the
sensitivity and novelty of many of the legal arguments involved, Father would
be well-advised to seek competent counsel if he again pursues relief in this
Court.
       6 With regard to these children’s best interests, I find it troubling that

Father has refused to see either of his children in over a year despite abundant
opportunities to do so.




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     I respectfully concur in the denial of the petition for writ of
mandamus.




                                    James D. Blacklock
                                    Justice

OPINION FILED: December 30, 2022




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