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Texas is trampling parents’ rights in its investigations of trans kids

Gov. Greg Abbott’s order isn’t just cruel — it also runs counter to basic legal principles

Demonstrators gather on the steps of the Texas Capitol in Austin in May 2021 to protest legislation that would have restricted the rights of transgender people. The state is now treating gender-affirming care for trans youths as child abuse. (Eric Gay/AP)
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In recent months, politicians in many states have introduced measures that aim to disrupt the everyday lives of transgender Americans. But an executive directive issued by Texas Gov. Greg Abbott in late February is far more intrusive than the rest. The order directs the Texas Department of Family and Protective Services (DFPS) to conduct child abuse investigations of parents who give medically necessary gender-affirming care to their transgender children. Even after a Texas judge temporarily stayed such investigations, Texas Attorney General Ken Paxton insisted that they were legal and would continue.

The mere prospect of these probes terrifies families with transgender children. But Abbott’s order should also worry everyone who lives in Texas — and in other states that may try copycat efforts. If the child abuse investigations are allowed to proceed, they will signal a radical expansion of the power of the state to interfere with parents’ constitutionally protected right to make decisions about how best to raise and nurture their children.

Many anti-transgender initiatives target the well-being of trans children, imposing painful and unnecessary burdens on these young people and their families. Some bills bar transgender youth from playing competitive school sports with their same-gender peers. Others ban health professionals from providing youngsters with gender-affirming care. On Thursday, the Alabama legislature passed a law that makes it a felony, punishable by up to 10 years in prison, for doctors to give such care to transgender youth. Other measures, including the Florida law criticized as the “Don’t Say Gay” bill and similar legislation introduced in Alabama, Louisiana and Ohio, forbid teachers in the early grades to discuss LGBTQ issues in their classrooms, while still others say schools can’t require teachers to use the pronouns consistent with students’ gender identities.

Abbott’s order is far more invasive than any of these. The Texas investigations do not merely intrude on the operations of school officials or the practices of health-care professionals: They repudiate the authority of parents to nurture their children. According to the order, parents who follow the advice of the American Academy of Pediatrics to provide gender-affirming care that is “developmentally appropriate, nonjudgmental, supportive” and clinically safe are committing child abuse, for which they — and their doctors — must be investigated, prosecuted and punished. Abbott’s order even encourages community surveillance of families with transgender children by explicitly reminding members of the public that they, no less than health-care professionals, have a duty to report suspected cases of child abuse.

Abbott’s executive action is all the more disturbing because it is entirely outside the democratic process. In fact, the Texas legislature previously failed to pass a statute outlawing gender-affirming care for minors. To support his unilateral decision to bar parents from following their pediatricians’ well-considered advice, Abbott relied on an opinion issued by Paxton’s office that said some “sex change” treatments, if “performed on children, can legally constitute child abuse.” (After a court blocked the order from taking effect, Paxton announced on Twitter that he had appealed and that he would “win this fight to protect Texas children.”) As numerous commentators have remarked, Paxton’s opinion is empirically unsound and misleading. In addition to the American Academy of Pediatrics, the American Medical Association and the American Psychological Association also recommend that gender-affirming treatment be given to children and adolescents with gender dysphoria.

The child welfare system already hurts trans kids. Texas made it a nightmare.

The practical effects of Abbott’s order were swift and devastating for parents, children and their health-care providers. Texas Children’s Hospital in Houston, the largest children’s hospital in the country, stopped providing gender-affirming care. DFPS opened child abuse investigations of a number of parents with transgender children. One DFPS employee testified that investigators were told to prioritize the transgender cases and were denied the freedom — which they exercise in all other cases — to find that reports involving trans children probably did not involve child abuse at all.

Texas courts have temporarily blocked the investigations by granting an injunction in a lawsuit filed by Jane and John Doe, pseudonyms for the parents of a transgender daughter who was receiving gender-affirming health care after extensive consultations with her doctors. The Does’ complaint claims that Abbott’s order violates their constitutional rights as well as Texas law. A Texas district judge stopped the investigation of the Does on the ground that there is a “substantial likelihood” that their case will succeed on the merits when it goes to a full trial this summer, and that the family would suffer “imminent” and “irreparable injury” unless the investigation was immediately blocked. The Texas Court of Appeals issued an order upholding the injunction, and that order is now on appeal before the Texas Supreme Court.

As the Does’ complaint shows, the families of transgender children in Texas have every reason to be terrified. In a particularly painful irony, Jane Doe herself works as a child abuse investigator for DFPS. After Abbott’s order was released, Doe asked her boss to clarify how the order would affect her work. Within hours, the agency placed her on leave, and on the following day, she was told that her family was being investigated for child abuse because she and her husband had followed mainstream medical advice about how best to care for their daughter.

The Equality Act is a positive step forward for the LGBTQ community. But it came with swift backlash from conservative lawmakers. (Video: Monica Rodman, Sarah Hashemi/The Washington Post)

Paxton’s vow to continue investigating families with transgender children has frightening implications not just for those families but for all families, and even for the rule of law itself. The U.S. Supreme Court has repeatedly affirmed that parents have constitutionally protected interests in the care, custody and control of their children. Almost 100 years ago, the court struck down a Nebraska law that banned teaching school children a language other than English, in part because the law infringed on the right of parents to control the upbringing of their children as they saw fit. According to the Supreme Court, in a 2000 opinion, parental interests are “perhaps the oldest of the fundamental liberty interests” enshrined in constitutional law. Likewise, the Texas Supreme Court has emphasized that parental liberty interests are of enduring constitutional magnitude, calling them “essential” and “far more precious than property rights.” Parental interests are explicitly enshrined in the Texas Family Code.

Like many Texas women, I had a safe, legal abortion. What happened to our state?

Again, the irony is glaring and painful. Some of the politicians who want to ban schools from teaching about sexual orientation or critical race theory allege — without offering any evidence — that these measures are necessary to protect “parents’ rights.” Meanwhile, Texas politicians want to investigate and punish parents who simply are following their doctors’ recommendations on the best care for their children.

Usually, the Texas courts jealously protect families from unreasonable or arbitrary state action, requiring the state to shoulder a “serious burden of justification” before it tries to intervene in parental decision-making. But the justification for Abbott’s intervention is not serious. There is no evidence to support the governor’s claim that gender-affirming care poses a danger to children’s health and wellbeing. To the contrary, such care has been shown to reduce the risk of depression and suicide for transgender youth. Banning it creates an excruciating conflict for parents, as the steps they take to preserve their children’s lives may lead the state to investigate and punish them.

Transgender advocates have hailed the Texas courts’ decision to halt the child abuse investigations. As the Does and their transgender child must know all too well, however, the reprieve is temporary. Texas is likely to appeal any ruling invalidating Abbott’s order, and Texas politicians, like their counterparts in other states, may look for new ways to intimidate the parents who seek gender-affirming care for their children and the professionals who supply it. To shut down these hateful political efforts once and for all, allies must step up and denounce them whenever and wherever they occur. And courts throughout the country must act speedily to reaffirm the constitutional protections that families enjoy, and apply those protections equally to families with transgender children.

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