By Antonia Gelorme, Staff Writer
A broadened reading of what constitutes “child abuse” may serve as the new front in state governments’ push to regulate transgender youth healthcare.
On Feb. 18, 2022, Governor Greg Abbott directed the state’s Department of Family and Protective Services (“DFPS”) to investigate the parents of a child who have consented to “gender transitioning” procedures on the charge of child abuse.[1] The governor’s direction came in the form of an opinion letter, alongside an opinion issued by the state’s Attorney General, Ken Paxton.[2]
In his opinion, the Attorney General indicated that the word “abuse” encompasses those actions taken by parents to provide their children with “sex change procedures.”[3] The opinion includes both surgeries, like vaginoplasties and mastectomies, to the prescription of puberty-suppression drugs or hormone injections.[4]The Attorney General noted these procedures, which vary in terms of invasiveness and reversibility, as especially concerning because they collectively endanger a child’s fertility.[5] This concern was derived, according to the opinion, from the “unsettling” phenomenon of sterilizing minors and other vulnerable populations without clear consent.[6] Specifically, the Attorney General cited to the U.S. Supreme Court’s finding in Skinner v. Oklahoma, where the Court determined that reproduction rights were protected under the Fourteenth Amendment from the compulsory sterilization criminal sentencing measures.[7]
Here, though the opinion only addressed elective procedures performed as part of gender-affirming care, it suggested that even voluntary procedures imposed a danger to minor patients. Such procedures were further likened to procedures performed as a result of Munchausen by proxy, a form of medical abuse that has been recognized in the state prior to this opinion.[8] In a “Munchausen” case, a parent may be held liable for child abuse where they “seek[] to procure—often by deceptive means, such as exaggeration—unnecessary medical procedures or treatments” for their children.[9]
Ultimately, the opinion concluded that these “sex change procedures” impose “physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child,” or, in the alternative, “’mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning’ by subjecting a child to the mental and emotional injury associated with lifelong sterilization.”[10]
Shortly after the opinion was released, the DFPS initiated investigations into families based solely on their providing gender-affirming care to transgender children, according to a petition filed by the American Civil Liberties Union (“ACLU”).[11] These investigations prompted the ACLU to file its petition, particularly on behalf of an employee of DPFS who has a transgender child, her husband, the teen herself.[12] The plaintiff mother and employee, who filed anonymously, was placed on leave at her position in the DFPS and subsequently investigated for child abuse on the basis of the teen’s gender identity alone.[13] Thus, the petition sought an immediate restraining order from the enforcement of the governor’s opinion, as well as eventual injunction against enforcement and declaratory judgment that the DPFS adherence to the policy is illegal and unconstitutional as a matter of proper rulemaking.[14]
In addition to the insecure footing of the governor’s opinion, which cannot create any binding law, the ACLU also pointed to the fact that no other state in the country has categorized gender-affirming care as child abuse.[15] Arkansas is the only state to implement a similar measure that criminalized the “gender transitioning” medical treatments, which was enacted in 2021 and shortly blocked thereafter.[16] In enjoining the state from enforcing the law, the United States District Court for the Eastern District of Arkansas determined that the law too narrowly targeted transgender youths and was only implemented to “ban an outcome that the State deems undesirable.”[17]
On March 2, 2022, the District Court of Travis County, Texas granted the temporary restraining order against the enforcement of the policy against the plaintiffs in the case.[18] Though the court will continue to hear arguments with regard to the broad state-wide injunction, those outside of the lawsuit may still be liable under the new policy. As a result, institutions like the Texas Children’s Hospital are halting transition healthcare in order to “safeguard [its] healthcare professionals and impacted families from potential criminal legal ramifications.”[19] Thus, even though the authority of the opinion letter is tenuous, it has demonstrated to have real-world effects on the young citizens of the state seeking medical transition care, as well as their families.
[1] Letter from Governor Greg Abbott to Department of Family and Protective Services Commissioner Jaime Masters (February 18, 2022).
[2] Letter from Ken Paxton to Chair of the House Committee on General Investigating Matt Krause (February 18, 2022) (hereinafter “Paxton Letter”).
[3] Id. at 1; see also Tex. Fam. Code §261.001.
[4] Paxton Letter at 1.
[5] Id. at 5.
[6] Id. at 3.
[7] Id. at 3; Skinner v. Oklahoma 316, U.S. 535, 541 (1942).
[8] Paxton Letter at 7.
[9] Id. at 7; see also Williamson v. State, 356 S.W.3d 1, 19–21 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
[10] Paxton Letter at 11 (quoting Texas Fam. Code §261.001(1)(B)).
[11] Plaintiffs’ Original Petition and Application for Temporary Restraining Order, Temporary Injunction, Permanent Injunction, and Request for Declaratory Relief at 7, No. D-1-GN-22-000977 (filed March 1, 2022).
[12] Id. at 1.
[13] Id. at 22–23.
[14] Id. at 48–49.
[15] Id. at 19, 36.
[16] Brandt v. Rutledge, 2021 WL 3292057 (E.D. Ark. Aug. 2, 2021).
[17] Id. at *4.
[18] Order Granting Plaintiffs’ Application for Temporary Restraining Order at 2, No. D-1-GN-22-000977 (filed March 2, 2022).
[19] Amir Vera & Gregory Lemos, Texas Children’s Hospital halts hormone therapies for transgender children in response to governor and AG’s recent actions, CNN (March 6, 2022), https://www.wlfi.com/news/national/texas-childrens-hospital-halts-hormone-therapies-for-transgender-children-in-response-to-governor-and-ags/article_3e97e5c2-1489-5683-bdab-5d997468f849.html
