Texas Gov. Greg Abbott’s Anti-Trans Directive

On February 23 2022, a letter attributed to Texas Gov. Greg Abbott (R) directing the Texas Department of Family and Protective Services around matters concerning transgender children circulated heavily on social platforms like Twitter and Reddit:

The above tweet states that Abbott “officially directed Family and Protective Services to begin investigating all trans children in Texas and prosecuting their parents as child abusers,” and “instructed all teachers, doctors, and caregivers to begin reporting any trans students they see.”

The letter was dated February 22 2022, and it appeared not long after discourse about Florida’s “Don’t Say Gay” bill came to national attention:

Search returned a somewhat similar post on Reddit’s r/politics in October 2021, linking to an article about Texas withdrawing a webpage of resources for LGBTQ youth in the state:

On Twitter, the tweet referenced a letter attributed to Abbott and included an image of the document (which consisted of one page). On gov.texas.gov, we located a copy of the letter [PDF] in a 15-page long upload dated February 22 2022.

The first page matched the letter seen on Twitter, and it read:

Dear Commissioner Masters:

Consistent with our correspondence in August 2021, the Office of the Attorney General (OAG) has now confirmed in the enclosed opinion that a number of so-called “sex change” procedures constitute child abuse under existing Texas law. Because the Texas Department of Family and Protective Services (DFPS) is responsible for protecting children from abuse, I hereby direct your agency to conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas.

As OAG Opinion No. KP-0401 makes clear, it is already against the law to subject Texas children to a wide variety of elective procedures for gender transitioning, including reassignment surgeries that can cause sterilization, mastectomies, removals of otherwise healthy body parts, and administration of puberty-blocking drugs or supraphysiologic doses of testosterone or estrogen. See TEX. FAM. CODE § 261.001(1)(A)–(D) (defining “abuse”).

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. See id. §§ 261.101(b), 261.109(a-1). There are similar reporting requirements and criminal penalties for members of the general public. See id. §§ 261.101(a), 261.109(a). Texas law also imposes a duty on DFPS to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures, and on other state agencies to investigate licensed facilities where such procedures may occur. See TEX. FAM. CODE § 261.301(a)–(b). To protect Texas children from abuse, DFPS and all other state agencies must follow the law as explained in OAG Opinion No. KP-0401.

Abbott described “so-called ‘sex change’ procedures” in the letter. However, it later referenced “removals of otherwise healthy body parts, administration of puberty-blocking drugs,” and administering hormones like testosterone or estrogen.

Abbott’s letter referenced “correspondence” from August 2021, and the same search returned an earlier letter [PDF] addressed to Commissioner Jaime Masters. That letter, which was dated August 6 2021, seemingly had largely to do with gender reassignment surgery (a procedure so rarely performed on individuals under the age of majority that a 17-year-old undergoing it is nationally newsworthy.)

As was the case with the February 22 2022 letter, Abbott encouraged advising “all licensed professionals … including doctors, nurses, and teachers” of the “penalties for failure to report such child abuse”:

Dear Commissioner Masters:

The Texas Department of Family and Protective Services (DFPS) is responsible for protecting children from abuse. Please issue a determination of whether genital mutilation of a child for purposes of gender transitioning through reassignment surgery constitutes child abuse.

Subjecting a child to genital mutilation through reassignment surgery creates a “genuine threat of substantial harm from physical injury to the child.” TEX. FAM. CODE § 261.001(1)(C). This broad definition of “abuse” should cover a surgical procedure that will sterilize the child, such as orchiectomy or hysterectomy, or remove otherwise healthy body parts, such as penectomy or mastectomy. Indeed, Texas already outlaws female genital mutilation of a child, and presumably that also constitutes child abuse. See TEX. HEALTH & SAFETY CODE § 167.001.

DFPS’s determination should consider making explicit what is already implicit in the statute: that genital mutilation of a child through reassignment surgery is child abuse. The determination should consider whether an exception should be made for medically necessary procedures for a child whose body parts have been affected by illness or trauma; who is born with a medically verifiable genetic disorder of sex development, such as the presence of both ovarian and testicular tissue; or who does not have the normal sex chromosome structure for male or female as determined through genetic testing.

After clarifying whether genital mutilation of a child through reassignment surgery is child abuse, it may be useful to explain the reporting requirements for all licensed professionals who have direct contact with children who may be subject to that abuse, including doctors, nurses, and teachers, as well as the penalties for failure to report such child abuse. See TEX. FAM. CODE §§ 261.101(b), 261.109(a-1).

As you know, classifying genital mutilation of a child through reassignment surgery as child abuse would also impose a duty on DFPS to conduct prompt and thorough investigations of the child’s parents, while other state agencies would be obliged to investigate the facilities they license. See id. § 261.301(a)–(b).

Thank you for your swift response to this issue.

A February 22 2022 article about Abbott’s letter published by Dallas News included broader context about the state’s then-recent handling of matters concerning transgender youth. Moreover, an expert in child protection policy in Texas explained that the ambiguity of the letter left much open to interpretation:

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.

According to the story, others signaled they had no intention of acting on the letter from Abbott or Paxton’s then-recent “opinion” on the matter:

“My office will not participate in these bad faith political games,” Harris County Attorney Christian D. Menefee said in a statement Tuesday [February 22 2022]. “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.

Although policy and legal experts described the letter as not “binding” and expressed disinterest in enforcing its provisions, policy and advocacy strategist for LGBTQ equality at the American Civil Liberties Union of Texas Adri Pèrez spoke to NBC News about how the concurrent proclamations could affect or has affected the state’s transgender youth and their parents:

Pèrez added that attorney general opinions are not legally binding.

“Ken Paxton’s thoughts on this, no matter what they are, do not affect how a court would or should analyze these issues,” they said. “And as of today, there’s no court in Texas or the entire country that has ever found that gender-affirming care can constitute child abuse.”

However, Pèrez said the opinion could have scary consequences for transgender youth.

“The opinion has a section that says that it is mandatory for teachers, social workers and others of their duty to report child abuse,” they said. “So even though the opinion is not binding, some people could point to this opinion as a reason to report, and that could increase the amount of false reports that we see being done on parents, it could increase bullying and harassment in schools directed toward trans youth, and bullying and harassment directed to their parents and guardians.”

Pèrez said that several parents of trans kids in Texas have already faced false reports that have led to investigations, and that investigators have consistently trusted parents and medical professionals, who support gender-affirming care.

Discourse about Abbott and Paxton’s efforts to curtail gender affirming treatment largely centered around Texas. Notably, those directives directly conflicted with the American Academy of Pediatrics (AAP)’s consistently reiterated position on care for transgender youth:

As a record number of state bills targeting the rights of transgender youths were introduced in 2021, the AAP and other medical groups have stepped up efforts to protect them.

States introduced legislation to ban transgender youths from participating on athletic teams according to their gender identity, restrict access to school restrooms that align with students’ gender identity and prohibit health care professionals from providing or referring patients for gender-affirming care. Bills also seek to ban changes to birth certificates and uphold the right of religious refusal — allowing providers to refuse care based on claims of religious or moral beliefs.

The AAP has partnered with chapters and other entities to file amicus briefs in support of legal challenges brought by the American Civil Liberties Union (ACLU) in several states. AAP members and leaders also have been reaching out to state lawmakers to express concerns about harmful legislation.

“It is critically important for every child to have access to quality, comprehensive and evidence-based care — transgender and gender-diverse youth are no exception,” said AAP Immediate Past President Lee Savio Beers, M.D., FAAP. “As pediatricians, we will continue to speak up and advocate for our patients. We also want transgender and gender-diverse youth to know that not only do we care for them, we care about them, we value them and we will do all we can to ensure they have access to the care they need and deserve.”

A February 23 2022 tweet claimed Texas Gov. Greg Abbott “officially directed Family and Protective Services to begin investigating all trans children in Texas and prosecuting their parents as child abusers,” adding that Abbott “instructed all teachers, doctors, and caregivers to begin reporting any trans students they see.” Abbott indeed issued a letter on February 22 2022, declaring many gender affirming treatments “constitute child abuse under existing Texas law.” Abbott’s letter — described as not legally binding, but still of concern for children and parents — further singled out teachers, nurses, and doctors as at risk of “penalties for failure to report such child abuse.” Legal and policy experts acknowledged that the letter was “non-binding,” but some added that its ambiguity could have a chilling effect on resources and support for transgender youth and their families.