Texas Gov. Greg Abbott (R) has instructed the commissioner of the state’s Department of Family and Protective services to view gender-affirming care for trans children as a form of child abuse. Referring to an opinion by his beleaguered (and indicted) Attorney General Ken Paxton (R), Abbott noted that Texas law “imposes a duty on DFPS to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures.” A judge has halted an investigation in one case, but the judge’s order allows for investigations into other trans families to go forward.
Public outcry has been swift, while professional organizations, including the American Academy of Pediatrics and its local Texas chapter, have issued strong statements of condemnation. Yet already a leading pediatric hospital has paused providing gender affirming care to shield employees and patients from potential ramifications. There are real consequences to these policies.
For trans children and families, their very existence is at stake. Investigations may result in child removal and placement outside the home, as well as denial of essential medical care. But for Abbott, this is just one facet of a calculated political strategy. As his reelection strategist noted, this is a “winning issue” for Abbott’s campaign. Exploiting broad legal statutes to criminalize, punish and break up families of disfavored and disempowered groups has a long history. And systems of child protection have often been deployed in ways that harm the very ones they have been charged to safeguard.
Early mandated reporting statutes focused on requiring physicians and health-care workers to report concerns of physical abuse. These were gradually broadened and expanded, and the passage of the federal Child Abuse and Protection Act in 1974, set the standard for what situations required reporting.
These standards were exceedingly broad, reflecting relentless advocacy of groups such as the influential Parents Anonymous, which sought to equate all forms of abuse as equally harmful. This argument was taken to the absurd. In one booklet, Parents Anonymous argued that emotional neglect could be “worse than the murder of a child.” The murdered child “at least” had “been shown negative emotional response,” while the neglected child did not even receive that. This was part of a bigger push to equate different forms of imperfect parenting with actual abuse and to portray abuse as omnipresent.
These broad definitions had practical implications. As states scrambled to meet the Child Abuse Prevention and Treatment Act (CAPTA) requirements, their reporting requirements included vague definitions such as “emotional neglect” or “mental injury.” But what states were primarily doing was reporting, not offering needed services. As Yale child psychiatrist Albert Solnit argued in 1978, overly broad definitions of abuse were leading to an “epidemic” of reporting, unmatched by funding for supportive services. Reports “based on life style [sic] difference, and on prejudice against minorities, single-parent families and low income families” could lead to coercive interventions that threatened “family integrity.” Sen. Walter Mondale (D-Minn.), who had championed CAPTA, also warned against further expansions of child abuse definitions. The government, Mondale explained, had a responsibility to “safeguard families — particularly those who are poor and from minority groups — from being enveloped in a system which may label them permanently as criminal or deviants.”
By the late 1970s, child welfare researchers across the political spectrum from liberal advocates for families to researchers affiliated with the conservative-leaning American Enterprise Institute cautioned that child abuse definitions were overly broad and vague and argued that they should be narrowed.
Yet politicians made the opposite choice.
Child abuse was a useful tool in culture wars, and the American public was particularly vulnerable to political scares involving the alleged harm to children.
Politicians could use the specter of child abuse to commit resources to state surveillance and oppression of poor communities and communities of color — even at times of fiscal crisis, and at a time when people of color and women were claiming more civil rights.
In 1977, California became the first state to attempt to criminalize the behavior of a pregnant woman under child abuse and maltreatment statutes. Prosecutors charged Margaret Velasquez Reyes with felony child endangerment for giving birth to twins who exhibited signs of withdrawal from heroin. The legal charges against Reyes, a Latina mother who had received little prenatal care, would prove to be a model for the forthcoming litigation over intrauterine “child abuse” cases. In the post-Roe era, where conservative politicians pushed what was termed “fetal personhood” policies, punishing pregnant women and other pregnant individuals who used drugs was seen as a political winner.
Physician groups including the American Medical Association, the American College of Obstetrics and Gynecologists and the American Public Health Association all cautioned against the criminalization of maternal drug use and addiction, concerned that pregnant mothers would delay seeking care for fear of prosecution.
Undeterred, some states rushed to update their child abuse statutes to include maternal drug use. By the 1980s, mothers across the country were prosecuted for the use of crack cocaine during pregnancy. Often this had nothing to do with actual harm to children. In 1998, an African American mother, Malissa Ann Crawley, was sentenced to five years’ probation after pleading guilty to child abuse. She had used crack cocaine during her 1991 pregnancy, which had resulted in a healthy baby boy. When Crawley’s probation was revoked over a fight with her boyfriend, she went to prison for a child abuse conviction in which no children had been harmed — leaving behind her son, by then 6 years old, and his two older siblings.
Prosecutions of pregnant women and other pregnant individuals for their behavior while pregnant, while unusual, instilled great fear and probably hindered their access to care. One study from 2013 identified 413 cases of pregnant women prosecuted for their otherwise noncriminal behavior while pregnant between 1973 and 2005 — almost certainly an undercounting of the true number of cases.
Today, parental drug use is a leading cause of child abuse investigation and removal, while we know that addiction is a relapsing disease and that, as advocates have noted, a drug test is not a parenting test. Many Americans use substances, yet Black mothers are disproportionately investigated and experience child removal.
And it’s not just the use of substances. As early as 1990, the United States Advisory Board on Child Abuse and Neglect reflected on a system focused primarily on investigations, rather than on the provision of services and necessary resources. In a system where reports of neglect abounded, it was “far easier to pick up one’s phone to report one’s neighbor” than to connect the neighbor in need with resources. For many observers, calling child protective services might appear to be the simplest way to respond to a crisis. Yet most reports and investigations don’t result in the provision of new services. Still, reports and investigations continue to be the primary response to families in crisis.
The same system ensnares families living their lives with no need for any intervention at all. In the past decade, states have investigated parents for allowing their children to play in a playground unsupervised, for running in for a quick errand while leaving a child in a car and for letting children walk home from school alone.
It is primarily poor mothers of color who are vulnerable to these coercive interventions into family decisions. A recent study has shown that more than half of all Black children will experience a child protection investigation before age 18. More than one in 100 kids in the United States will experience termination of parent rights, the ultimate loss of family integrity, with rates even higher for Native and Black children.
Broad definitions of neglect and abuse are ripe for cynical misuse. For example, Fox News host Tucker Carlson encouraged his viewers to report children wearing masks to the police or to child protective services. Florida Gov. Ron DeSantis’s (R) press secretary accused those who object to the controversial Parental Rights in Education bill of being “groomers” or supporting the sexual grooming of 4-to-8-year-old children, an accusation couched in language of sexual abuse.
Abbott’s latest cruel push to investigate families of transgender children is possible thanks to overly broad definitions of child abuse. These provisions have been weaponized and politicized for over half a century as a cudgel against disfavored families. Truly protecting children and families from these abusive policies requires more narrowly and carefully defining abuse and limiting coercive investigations into families.