Legal Happenings with Texas Investigations into Gender-Affirming Care

As states continue to introduce legislation to restrict gender-affirming care for transgender children, Texas has taken a step further. In February, Governor Greg Abbott instructed Texas’ Department of Family and Protective Services (DFPS) to investigate gender-affirming practices and the families with children receiving these practices. Practices like puberty-blocking prescriptions and hormone-blocking medication are considered the standard of care by doctors treating transgender individuals, including those under 18. 

Texas Attorney General Ken Paxton had stated that he would enforce this nonbinding legal directive from the governor. This comes after several opinions written by Paxton raised issues “whether genital mutilation of a child for purposes of gender transitioning through reassignment surgery constitutes child abuse.” Paxton’s statement highlighted that surgery and prescription medication as gender-affirming care is also considered child abuse.

When evaluating the statements issued by Paxton and Gov. Abbott, Wade Goodwyn, an NPR Correspondent for Texas, shared that these are “… interpretations that threaten legal penalties, but there’s no force of law. But the threat of legal action certainly creates anxiety for hospitals, doctors and, of course, you know, the families involved in transgender treatment.”

NPR host Sacha Pfeiffer raised the issue of contradiction. “…There’s almost a contradiction here, which is, as we said, the Texas Legislature has not passed a law banning treatment for trans kids, yet it’s saying they may investigate families and kids for getting this kind of treatment. So if it’s not illegal, what’s the threat of being investigated?”

An investigation by the Texas Department of Family and Protective Services is a lengthy and invasive process. Typically DFPS investigations include home visits, interviews with parents, children, siblings, teachers, neighbors, and anyone accused of neglect or abuse of the child(ren). These investigations also include reviewing medical and mental health records of parents, children, and anyone who allegedly abused or neglected the child. DFPS is legally bound to provide the results of its investigation to law enforcement. At this point, law enforcement may begin their own investigation. Law enforcement and district attorneys work together to prosecute if charges are filed.

Five District Attorneys Against Prosecuting Families

Five district attorneys in Texas have already pushed back and announced that they would not be prosecuting charges tied to the governor and attorney general’s directive. While their job is to enforce the Constitution, they “will not irrationally and unjustifiably interfere with medical decisions made between children, their parents, and their medical physicians.”

The White House also condemned Gov. Abbott and his directive. “The Texas Attorney General’s attack on loving parents who seek medical care for their transgender children is dangerous to the health of kids in Texas and part of much larger trend of conservative officials cynically attacking LGBTQI+ youth to score political points,” a White House spokesperson told ABC News.

Civil Rights Groups File Lawsuit

Two civil rights groups, the ACLU and Lambda Legal, filed a lawsuit against Gov. Abbott and the Texas Department of Family and Protective Services on behalf of a family who came under investigation for their child’s gender-affirming care. It is believed that Jane Doe “was placed on leave from her employment because she has a transgender daughter with a medical need for treatment of gender dysphoria.” The lawsuit requested a Temporary Restraining Order, Temporary Injunction, Permanent Injunction and Request for Declaratory Relief. An injunction hearing was held on March 11 to hear arguments in this case.

After the hearing, a Travis County judge temporarily blocked the directive. District Court Judge Amy Clark Meachum is of the opinion that those named as plaintiffs, in this case, would suffer “imminent and irreparable injury” if the directive were permitted to stay in place. The ruling states that providing gender-affirming care is no reason to investigate a family for child abuse. “The governor’s directive was given the effect of new law or a new agency rule despite no new legislation, regulation, or even stated agency policy,” Meachum wrote as part of her ruling.

Investigations into child abuse due to gender-affirming care are halted for now. Meachum indicated that Gov. Abbott had overstepped his authority and that the directive to DFPS was unconstitutional. The injunction that applies Texas-wide will be temporarily blocked until “this court, and potentially the Court of Appeals, and the Supreme Court of Texas,” hear the litigation, Meachum included.

The Texas attorney general is expected to appeal the ruling. Upon hearing the outcome of this hearing, Paxton stated that DFPS investigations will continue, and this “fight will continue up to the Supreme Court.” 

It is estimated that nine families in Texas with transgender children are currently under investigation. Before this directive from the governor, no families were under investigation by DFPS related to gender-affirming medical care for children. The CDC estimates that between 60-70% of transgender people take prescription hormones. Twenty to 40% of those who identify as transgender have had at least one gender-confirming surgery. Gender-affirming surgery is rarely presented as an option to transgender patients under 18.