AUSTIN — Texas Gov. Greg Abbott has ordered state agencies to investigate reports of transgender kids receiving gender-affirming care as “child abuse,” but it’s unclear what immediate effect the directive will have on kids, teachers, doctors and parents.
In a letter to the Department of Family and Protective Services sent Tuesday, Abbott said the agency “is responsible for protecting children from abuse.” He warned that educators, medical professionals and others who don’t report alleged abuse could face consequences.
“Texas law imposes reporting requirements upon all licensed professionals who have direct contact with children who may be subject to such abuse, including doctors, nurses, and teachers, and provides criminal penalties for failure to report such child abuse,” Abbott said.
His letter was CC’d to several other agencies, including the Health and Human Services Commission, Texas Medical Board and Texas Education Agency.
Abbott’s order came the day after Attorney General Ken Paxton released an opinion that said certain types of medical care for trans youth — including treatments like hormone therapy and puberty blockers — is a form of child abuse. Attorney general opinions do not have the force of law, but former officials said agency heads are mostly expected to follow them.
Abbott and Paxton’s directives could create uncertainty for transgender children and the adults in their lives. But the immediate and long-term consequences for access to these treatments is unclear: child welfare advocates say the future is uncertain, state agencies have stayed largely mum and some prosecutors have already begun to reject the directives outright.
“Since this is a nonbinding opinion by the attorney general right now, it’s unclear what will happen next,” Kate Murphy, senior policy associate for child protection at Texans Care for Children, told The Dallas Morning News. “Right now, we have more questions than answers.”
“If loving parents are following recommended medical care that they believe is in the best interest of their child, it’s hard to fathom why Texas would legally conclude that is child abuse,” she added.
Prosecutors, advocates respond
Some local government officials in liberal-leaning parts of the state are balking at acting on the new interpretation of the law.
County and district attorneys in two major cities have already said they will not take legal action against abuse allegations based on Paxton’s opinion.
“My office will not participate in these bad faith political games,” Harris County Attorney Christian D. Menefee said in a statement Tuesday. “As the lawyers handling these cases, we owe a duty of candor to the courts about what the law really says. We’ll continue to follow the laws on the books — not General Paxton’s politically motivated and legally incorrect ‘opinion.’”
The Travis District and County Attorneys echoed Menefee sentiments.
“The Republican leadership of this state is trying to turn loving and supportive parents into criminals, and this office will play no part in it,” County Attorney Delia Garza told The News.
The office of District Attorney Jose Garza confirmed they will likewise decline to prosecute any cases based on Paxton’s guidance.
Dallas County District Attorney John Creuzot declined to comment.
Few state agencies have yet to publicly weigh in on the issue.
The Texas Medical Board and Texas Education Agency did not respond to requests for comment Tuesday, and the Health and Human Services Commission is still determining next steps.
A spokesman with DFPS said the agency will investigate alleged abuse, but is not expected to change its current policies in response to Paxton’s opinion. Any reports will be dealt with on a case-by-case basis.
“We will follow Texas law as explained [by Paxton’s opinion],” Patrick Crimmins said. “At this time, there are no pending investigations of child abuse involving the procedures described in that opinion.”
Two former state officials told The News that agencies are expected to implement attorney general opinions, even though they don’t have the force of law. Since agency leaders are often appointed by the governor himself, Abbott’s support for Paxton’s opinion makes their choice more clear.
“People can not follow it, but there can be consequences for not doing it,” former health commissioner Charles Smith said.
Claire Bow, a former assistant attorney general and head of the State Office of Risk Management, agreed. She said other agencies that deal with teachers, professional licensing and health care will now need to decide how to handle this new directive.
Bow, who is also a transgender woman, said she feels fatigue over the state repeatedly putting the trans community in its crosshairs: “We’ve had the supports knocked out from under us again.”
Randall Erben, a professor at the University of Texas School of Law, said the issue could end up in court if a parent, teacher, doctor or other interested party filed suit. If it does, the court could use Paxton’s opinion as guidance.
“It’s up to the judge. You could find a judge that may interpret that provision of the family code the same way that Paxton does,” Erben said. “It could play out in any number of ways. … It certainly sets up an uncertain future for things of this nature.”
Transgender children in the spotlight
Nearly 14,000 Texans between the ages 13 and 17 self-identified as transgender in 2017, according to a survey by the Williams Institute at UCLA. The total size of the Texas transgender community at that time, the survey showed, hovered around 125,000 people.
Republican politicians have increasingly put health care for transgender children under the spotlight in recent years. During the 2021 legislative session, Texas lawmakers tried unsuccessfully to change state law to ban certain medical treatments for minors experiencing gender dysphoria.
Gender dysphoria is the feeling of discomfort or distress that can occur in people who identify as a gender that is different from the gender or sex assigned at birth.
After this legislative failure, under pressure from Abbott, DFPS changed its definition of abuse to include transgender “reassignment surgery” for minors. Paxton’s opinion this week addressed surgical interventions and other non-surgical treatments.
But surgery to treat gender dysphoria is not recommended until a patient has reached the legal age of maturity and lived continuously for at least a year in the gender role consistent with their gender identity, according to best practices set out by the World Professional Association for Transgender Health, or WPATH, the group that authors the standards of care for the health of gender-diverse people.
Best standards dictate that medical interventions like hormones should be explored only for youth who have experienced the onset of puberty and after undergoing mental health evaluation. For children who have not reached puberty, mental health care is the primary form of treatment for gender dysphoria.
The decision to redefine all treatment for minors experiencing gender dysphoria as “abuse” contradicts the advice of the largest and most established state and national medical groups.
The American Medical Association, American Psychiatric Association and American Academy of Pediatrics all support providing age appropriate, individualized care for children experiencing gender dysphoria. The Texas Pediatric Society and Texas Medical Association also both urged Paxton not to target transgender children’s access to these treatments, The News has learned.
WPATH blasted state leaders in a statement Tuesday.
“Targeting trans youth, their parents, and their health care providers for political gain is unconscionable. We strongly denounce this alarmist and misguided opinion which could obstruct access to medically necessary care,” WPATH said in a statement to The News.
Paxton’s opinion was also met with condemnation by LGBTQ rights groups. They accused Republican politicians who are duking it out in a competitive GOP primary seasons of using transgender Texans as punching bags.
Both Abbott and Paxton face primary opponents. The governor’s GOP challenger, former state Sen. Don Huffines, has repeatedly pressured Abbott to take a more aggressive stance against gender-affirming care for children.
“We urge all Texans to be skeptical about campaign stunts disguised as legal opinions from a corrupt politician who has no expertise in healthcare and who has built their career spreading disinformation about marginalized communities,” Ricardo Martinez, CEO of the LGBTQ rights group Equality Texas, said in a statement Tuesday.
Staff reporter Marin Wolf contributed to this report.
