In recent weeks, the parents of transgender kids in Texas have had to deal with a new source of stress. While the state government has long displayed hostility to trans Texans—most recently by passing a law during the 2021 legislative session that bans trans students from competing in school sports consistent with their gender identity—a February 22 letter sent from Governor Greg Abbott to the Texas Department of Family and Protective Services (DFPS) escalated matters considerably. In the letter, Abbott instructed the department to begin investigating reports of parents providing gender-affirming medical care to their children as child abuse.
Parents have understandably panicked at the thought that this policy could result in their children being taken from their homes, while teachers and doctors have struggled to understand whether Abbott’s letter means they are now required to report families whose children they know to be receiving such treatment to the agency. President Biden released a statement last Wednesday night decrying Abbott’s measure as “government overreach at its worst,” and accused him of “weaponizing child protective services against loving families.” Abbott, for his part, has been mostly quiet about the issue since sending the letter, sharing a single news story on Twitter about his new policy.
On Tuesday, the ACLU filed a lawsuit against Abbott and DFPS on behalf of a family currently under investigation, and on Wednesday night a federal judge in Austin granted a temporary restraining order enjoining the investigation. On Friday, Texas Children’s Hospital in Houston announced that it would no longer provide hormone therapy for transgender children due to “potential criminal legal ramifications” for doctors and families. There’s a lot to keep up with—and a lot to understand—as this unfolds, and you may have questions. Here are some answers, which we’ll update as the story develops.
What exactly is going on?
Greg Abbott sent a letter to the Texas Department of Family and Protective Services instructing the agency to investigate the families of transgender children as potential child abusers if their kids are receiving gender-affirming medical care, a model of treatment that the Texas Medical Association, the Texas Counseling Association, and the Texas Pediatric Society agree is the best approach to caring for transgender children. This includes drugs (“puberty blockers”) that delay the onset of puberty in preadolescent kids, as well as the use of hormones in older kids. (Abbott’s policy also targets genital surgical procedures, which existing medical guidelines do not recommend for children under the age of eighteen.)
Did Texas pass a new law to put this policy into effect?
No, there’s no new law at work here. The Texas Legislature, which meets every other year, isn’t in session in 2022. Rather, Abbott’s letter is based on an opinion issued by Attorney General Ken Paxton on February 15 that interprets existing Texas child abuse law (specifically Chapter 261 of the Texas Family Code) to mean that the law applies to parents who allow their children to be prescribed “medically unnecessary” gender-affirming treatment. Paxton’s opinion doesn’t carry the force of law, although, according to the Texas A&M Law Library, such opinions are “highly persuasive and are generally considered to be authoritative until and unless they are overruled by legislative or court action.”
What do medical experts say about the use of puberty blockers, hormones, and surgical procedures on minors?
Using puberty blockers to treat gender dysphoria—the clinical term that describes a mismatch between the gender someone was assigned at birth and the gender with which he or she identifies—is not unusual, according to standards of care from the World Professional Association for Transgender Health (WPATH). The idea behind the treatment is that, by delaying the onset of puberty with reversible drugs, children who are experiencing gender dysphoria are able to have more time to understand their gender identity before their body undergoes irreversible changes. Hormone treatment can be prescribed for teens; a peer-reviewed study published in January in the Public Library of Science found that transgender adults who received gender-affirming hormones as teens had significantly better mental health outcomes as adults. Genital surgery is not recommended for minors, according to WPATH, and is generally not performed on those younger than eighteen.
What about younger kids?
Medical organizations do not recommend hormones or puberty blockers—let alone surgery—for little kids. Puberty blockers aren’t given to kids who haven’t yet started puberty (which usually begins between ages ten and twelve), and hormones aren’t typically given to kids before their teen years. Preadolescent transgender kids can begin a social transition, in which they go by a name and wear clothes that are consistent with their gender identity. Medical interventions, in WPATH’s standards of care, are for use with kids whose bodies have begun producing hormones associated with puberty.
Does either Abbott’s letter or Paxton’s opinion affect transgender kids who aren’t being treated medically for gender dysphoria?
No, not at the moment. Nothing in either document addresses children who identify with a gender other than the one on their birth certificate but who aren’t being treated medically. Parents of children in this situation have expressed concern about whether the state’s decision to pursue cases involving medical treatment as child abuse opens the door to an even broader interpretation of Chapter 261 that might include nonmedical affirmations of a child’s gender identity (such as through dress or using a different name). Parents in professions such as medicine and law, who must maintain state licenses to practice, fear that being investigated for child abuse will cost them those licenses and their livelihoods.
Are parents who allow their kids to take puberty blockers or hormones at risk of having their kids taken from them by the state?
Yes, with some caveats. We don’t know exactly what is going to happen when Paxton’s interpretation of the existing law is heard in court. (Shortly after Abbott issued his directive, Democratic district attorneys in Bexar, Dallas, Fort Bend, Nueces, and Travis counties signed a joint letter condemning the policy.) The mere existence of an investigation can be punitive to its subject. “Investigations are really terrifying—these are people who are coming into your house and have the power to remove your children at any time,” said Kelley Fong, a child protective services researcher at Georgia Tech University. Transgender rights advocates recommend that families that could find themselves investigated under Abbott’s policy reach out to lawyers and advocacy organizations now.
What’s the basis for the ACLU lawsuit?
The ACLU suit, filed in federal court on behalf of a pseudonymous Texas family under investigation by DFPS, along with their psychologist, Dr. Megan Mooney, lists Abbott, as well both the department and its head, Jaime Masters, as defendants. The suit argues that Abbott can’t use a single legal opinion—even one from the attorney general’s office—to effectively create a new law. “The Defendants have, without Constitutional or statutory authority, acted to create a new definition of ‘child abuse’ that singles out a subset of loving parents for scrutiny, investigation, and potential family separation,” the suit alleges.
While Abbott cited Paxton’s opinion in his letter to DFPS, the lawsuit argues that his actual instruction to the agency goes further than Paxton’s legal opinion; while Paxton says that “medically necessary” treatments are exempt from the opinion, Abbott’s letter makes no such distinction.
Are puberty blockers and hormones considered medically necessary treatment for transgender kids?
The short answer is yes, according to a broad consensus of medical associations in Texas as well as nationally and internationally, though, as with most medical decisions, this is usually left to the doctor and the patient, or, in the case of children, the patient’s parents or guardians. Both classes of drugs can be part of recommended treatments for gender dysphoria. But it appears that what Paxton calls “sex change” procedures are not what he is referring to when he cites an exemption for medical necessity. Rather, he gives the example of “a minor male with testicular cancer [who] may need an orchiectomy.” The question the ACLU’s argument invites is whether the question of medical necessity is best determined by nonphysicians such as Abbott and Paxton—a point the lawsuit makes repeatedly, by spending eight pages citing medical experts on the issue.
Is that the core argument in the lawsuit?
It’s one of them. The other is that the Texas Legislature considered bills during the 2021 session that would explicitly ban these treatments for minors, and they failed to pass. The suit argues that Abbott’s letter is an attempt to circumvent the Legislature and put into effect rules that it explicitly declined to pass, noting that after the legislation failed to win the approval of lawmakers, “Governor Abbott explained on a public radio show that he had a ‘solution’ to what he called the ‘problem of medical treatment for minors with gender dysphoria.’”
Does this new policy create a “bounty” system similar to the abortion law passed in last year?
It doesn’t create any sort of cash incentive for reporting a family with a child on puberty blockers or hormones the way that Texas’s SB 8 encouraged citizens to report those they suspected of aiding any Texan in obtaining an abortion after embryonic cardiac activity could be detected. But Abbott’s letter notes that “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 that “there are similar reporting requirements and criminal penalties for members of the general public.”
Does Abbott’s letter mean that Texans are legally required to tell DFPS if they are aware of a transgender child on hormones or puberty blockers?
It’s hard to say for sure. The current law does require adults who are aware of child abuse to report it. Until the issue is resolved in court, it’s not clear whether adults are required to report something that, in Ken Paxton’s opinion, now constitutes child abuse—but which didn’t just a few weeks ago. The ACLU lawsuit addresses this question, arguing that Dr. Mooney’s requirements as a mandatory reporter put her in an untenable position. Because Mooney is a medical professional whose expertise does not lead her to believe that gender-affirming treatment for minors is child abuse, Abbott’s letter effectively requires her to subject herself to “harsh penalties, including prison time, for the false reporting of child abuse,” as well as to violate professional ethics and the trust of her patients.
Even if Abbott’s letter doesn’t require Texans to report on one another, it certainly creates an opportunity for those who disapprove of their neighbors’ parenting of their transgender children to involve the state.
What happens next?
On Wednesday night, federal district judge Amy Clark Meachum, based in Travis County, granted a temporary restraining order that put a stop to the investigation into the Doe family. At a hearing on March 11, she’ll also decide whether to put a broader injunction in place against the policy while the case makes its way through the courts. (Texas appealed the ruling the night it was granted, and will likely do the same if a farther-reaching injunction is put into place.)
Beyond the current ACLU lawsuit, however, it seems clear that the state’s attempt to regulate what sort of treatments parents pursue for their transgender children isn’t going to end here. On a press call following this week’s primary election, Abbott campaign adviser Dave Carney told reporters that the issue “is a seventy-five percent to eighty percent winner,” and that “I don’t believe even [Democratic gubernatorial nominee Beto] O’Rourke would think that if a parent cut off the hand of their kid, that would not be child abuse.” Carney’s conflation of puberty blockers with cutting off a child’s hand suggests that Abbott has found a frame he is comfortable with in continuing to press the issue. The Biden administration, meanwhile, says it is “evaluating the tools at our disposal to protect trans and gender diverse youth in Texas.”
We still have nearly a year to go before the 2023 legislative session begins, but, barring an upset victory by O’Rourke or a slew of upsets in state legislative races, it seems likely that Republicans will pursue this issue again legislatively, as well. A similar law passed in Arkansas last year, and while it’s currently on hold pending a federal lawsuit, Paxton’s and Abbott’s actions tell us that there is a strong drive to find multiple ways to push on what the GOP believes is a winning political issue.