Abbott edict threatens trans children, their families

Governor, attorney general define gender-affirming care as child abuse, call for citizen reporting, DFPS investigations

Ali+Cross+of+the+Austin+Cheer+squad+waves+a+trans+flag+at+a+rally+against+anti-trans+legislation+on+April+28%2C+2021.+The+Senate+passed+two+bills+in+2021+which+sought+to+restrict+gender-affirming+care%2C+but+neither+made+it+out+of+the+House+Committee+on+Public+Health.+%0APhoto+by+Evan+LRoy+of+The+Texas+Tribune.+Reposted+here+with+the+permission+of+Texas+Tribune+deputy+photo+editor+John+Jordan.

Evan L'Roy of The Texas Tribune

Ali Cross of the Austin Cheer squad waves a trans flag at a rally against anti-trans legislation on April 28, 2021. The Senate passed two bills in 2021 which sought to restrict gender-affirming care, but neither made it out of the House Committee on Public Health. Photo by Evan L’Roy of The Texas Tribune. Reposted here with the permission of Texas Tribune deputy photo editor John Jordan.

By Ingrid Smith, McCallum High School

Texas Attorney General Ken Paxton was asked by a Texas legislator for a legal opinion on whether gender-affirming medical and chemical procedures for transgender youth constitute child abuse under Texas law. Encompassed in the question were procedures that cause sterilization, surgeries that remove certain body parts and the prescribing and administering of puberty-blocking or other hormonal drugs. Relying on the United States Supreme Court’s precedent that children are particularly vulnerable and unable to make decisions maturely and in a fully informed manner, Attorney General Paxton said that he would answer the question with caution, mindful of the State’s duty to protect children.

There is no doubt that these procedures are ‘abuse’ under Texas law, and thus must be halted.”

— Attorney General Ken Paxton

Attorney General Paxton concluded in Opinion No. KP-0401 issued on Feb. 18 that allowing minors to undergo gender-affirming procedures and treatments constitutes child abuse under state law. Citing the Texas Family Code chapter 261, Paxton claimed that causing or permitting impairment to a child’s development defines child abuse. Gender-affirming procedures could constitute abuse by inflicting emotional or physical injury associated with sterilization on a child. According to Attorney General Paxton, medical and chemical gender-affirming procedures put a “fundamental human right” at stake: the ability to procreate. 

“There is no doubt that these procedures are ‘abuse’ under Texas law, and thus must be halted,” Attorney General Paxton said in a press release on Feb. 21. “The Texas Department of Family and Protective Services (DFPS) has a responsibility to act accordingly. I’ll do everything I can to protect against those who take advantage of and harm young Texans.”

Following the opinion, Gov. Greg Abbott wrote a letter to the Texas Department of Family and Protective Services on Feb. 22, directing DFPS to conduct “prompt and thorough” investigations of all “abusive” gender-affirming procedures reported. As with any suspected child abuse, an investigation could lead to removal from the family home, placement in foster care and even termination of parental rights. 

The guidance issued by the governor of Texas yesterday is unlawful — and it will not prevent us from providing 24/7 life-saving crisis services.”

— Amit Paley, CEO and executive director of The Trevor Project

Based on the attorney general’s opinion, Gov. Abbott emphasized the mandatory reporting obligation of all licensed professionals including doctors, teachers, therapists and nurses. He also stated that the reporting requirement extends to members of the general public and explained that Texas law provides criminal penalties for failure to report child abuse which, under Attorney General Paxton’s opinion, includes gender-affirming procedures. In the same letter, Abbott pointed out the supposed duty of DFPS to investigate the parents of a child who is taking part in gender-reassigning treatments and the facilities where such procedures take place. 

Attempts to criminalize gender-affirming procedures and require investigations related to trans youth are not new in Texas. Although largely unsuccessful, Texas Republican leaders have worked to restrict transition-related medical care for minors for years through bills like SB 1646 that reached the house floor in 2021 but ultimately didn’t pass, seeking to define gender-affirming medical care as child abuse and declare providing it a felony. 

In August 2021, Gov. Abbott asked DFPS to determine “whether genital mutilation of a child for purposes of gender transitioning through reassignment surgery constitutes child abuse,” to which they responded that it does. As early as 2019, Paxton sent a letter to DFPS stating that gender transitions through puberty-blocking drugs were considered abuse under the family code and calling upon DFPS to investigate. At least one state legislator, Rep. Matt Schaefer, R-Tyler, called for a special legislative session to enact legislation consistent with Paxton’s interpretation.

While attorney general opinions are written interpretations of existing laws and cannot change the laws, they can affect how they are enforced. DFPS has said that they will follow Gov. Abbott’s direction. According to various news sources on Feb. 21, DFPS has not begun investigating any reports of gender-affirming care. 

Some officials and organizations have come out against the governor’s stance, saying they refuse to report trans youth to the DFPS.

“We protect all our kids at Austin ISD, no matter what, and that goes for our trans kids, too,” AISD Superintendent Stephanie Elizalde tweeted on Feb. 23.

Allowing your child to medically transition is quite the opposite of child abuse because you’re affirming them.”

— sophomore Adrian Recar

McCallum sophomore Adrian Recar, a transgender student, chose to attend the school because he could tell it was a safe environment. Now, he expressed concern about the effect these new directives may have on trans youth in their homes and their schools. 

While Paxton and Abbott have focused on medical and chemical treatments, reporting and investigations could affect all trans youth, the small percentage who have medically transitioned and the large percentage who have not. According to the Journal of Medical Ethics, gender-affirming surgery, because of its permanent nature, is currently recommended for people at least age 16 but often for those over 18. 

Recar anticipates that for trans kids who are still in the closet for safety reasons, coming out will become an even bigger and more dangerous challenge.

“Trans, and specifically trans youth already have a difficult time,” Recar said. “We feel like we owe people an explanation of our identity and an explanation of why we want to medically transition. Sometimes when people don’t get that, obviously you can spiral into a depression, which is why the suicide rates in trans youth are so high and this is only going to make it worse.”

The Trevor Project, a suicide preventing and mental health organization for LGBTQ youth reported in its 2021 National Survey on LGBTQ Youth Mental Health that 52% of transgender and nonbinary youth seriously considered suicide in the past year. A 2021 peer-reviewed study by the same organization found that when peers and adults accepted gender identity, attempted suicide rates decreased. Another reported that gender-affirming hormone therapy was associated with 40% lower odds of recent depression and suicide attempts in minors. 

We want to assure our residents with transgender children that they are safe to continue seeking the care their children need.”

— Travis Country District Attorney Jose Garza with other Texas DAs

“The Trevor Project strongly believes that the guidance issued by the governor of Texas yesterday is unlawful — and it will not prevent us from providing 24/7 life-saving crisis services,” Amit Paley, CEO and executive director of The Trevor Project said in a statement on the organization’s website.

The American Medical Association, the American Psychological Association, the Texas Nurses Association and the American Academy of Pediatrics all support gender-affirming care for minors. In a recent poll conducted for The Trevor Project, 85% of transgender and nonbinary youth reported worsened mental health following recent developments regarding state laws and the restriction of trans rights.

“Allowing your child to medically transition is quite the opposite of child abuse because you’re affirming them,” Recar said. “You’re saying, ‘I see you, I understand why you need to do this, and I’m going to support it.’” 

Recar described the recent news as scary. He explained, most people don’t understand how difficult it is for transgender people to live authentically. For many, it hurts to realize that the “next step” they seek in gender-affirming care may be harder to achieve.

Five Texas district attorneys from large cities, including Jose Garza, the Travis County district attorney, issued a joint statement condemning the directives from Abbott and Paxton.

“We will enforce the Constitution and will not irrationally and unjustifiably interfere with medical decisions made between children, their parents and their medical physicians,” the statement said. “We trust the judgment of our state’s medical professionals, who dedicate themselves to providing the highest degree of care not only for our transgender youth but for all youth in our communities. We want to assure our residents with transgender children that they are safe to continue seeking the care their children need.”

It’s not about what’s best for us, it’s just about trying to shut down the people who are different.”

— sophomore Adrian Recar

While it’s unclear what effect Abbott’s directives will have moving forward, people nationwide have responded strongly to resist them. Promises from AISD and Texas district attorneys to support the trans community seem to signify a challenge to the mandatory reporting requirements imposed by Gov. Abbott and Attorney General Paxton. Recar believes that for many, medical transitions and chemical treatments can be an important part of the transition process.

“It really does save lives,” Recar said. “The fact that people are actively trying to take it away just proves that it’s not about what’s best for us, it’s just about trying to shut down the people who are different.”

This story was originally published on The Shield Online on February 27, 2022.