Updated: This article was updated to reflect recent legal developments.
Educators in Texas are watching with uncertainty and anxiety as a controversy unfolds over efforts by the governor and state attorney general to classify as “child abuse” some medical treatments for transgender children.
“It is concerning and ambiguous for people” in education who are legally responsible for reporting suspected cases of child abuse, said Kelsey Theis, the president of the Texas Association of School Psychologists.
Last month, Gov. Greg Abbott and Attorney General Ken Paxton, both Republicans, issued letters declaring that certain medical procedures and treatments for minors with gender dysphoria could constitute child abuse under state law. Both officials delivered reminders that teachers are among the mandatory reporters who must notify authorities about suspected child abuse or face criminal charges.
“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,” Abbott said in his Feb. 22 letter to the state commissioner of the Department of Family and Protective Services.
In his Feb. 18 opinion letter, Paxton wrote that some of these treatments and procedures—such as hormone therapy and surgery—amount to sterilization.
“The medical evidence does not demonstrate that children and adolescents benefit from engaging in these irreversible sterilization procedures,” Paxton wrote.
The letters prompted a firestorm. Critics contend the governor and attorney general were seeking to accomplish through executive action what the state legislature could not when legislation that would have criminalized certain treatments for gender dysphoria failed to gain approval.
The critics say the state family and protective services department quickly began conducting investigations into families with transgender children, including an employee of the agency who is the mother of a transgender daughter.
Professional groups in medicine, social work, and education also are speaking up, arguing that treatments for gender dysphoria are well-established and medically necessary.
The president of the Texas Pediatric Society said in a statement that “This directive undermines the physician-patient-family relationship and will cause undue harm to children in Texas.”
Theis, a school psychologist for an Austin, Texas-area school district, said the governor’s and attorney general’s interpretation would present a quandary for members of her profession.
“It would put people in an ethically challenging spot” if that interpretation became clearly established, she said. “We’re ethically obligated to speak up for the best interests of students and families.”
Megan A. Mooney, a Houston child psychologist in private practice, is a plaintiff in a lawsuit filed by civil-rights groups challenging the Abbott and Paxton letters. She serves many transgender young people, she said in an affidavit.
“The latest actions purporting to require me to report gender-affirming care as child abuse put me in an untenable situation,” she said. “If I fail to report my clients who receive this medical treatment, I face the prospect of civil and criminal penalties, the loss of my license, and other severe consequences. But if I report any of my clients for receiving critical and medically necessary care, I would be violating professional standards of ethics, [and] inflict serious harm and trauma on my clients.”
Nationwide controversy swirls around transgender youth
The Texas controversy, one of several around the country involving transgender students on issues that also include sports participation, attracted the attention of the White House.
President Joe Biden on March 2 issued a statement condemning the “cynical and dangerous campaign targeting transgender children and their parents.”
“Like so many anti-transgender attacks proliferating in states across the country, the governor’s actions callously threaten to harm children and their families just to score political points,” Biden said.
U.S. Secretary of Health and Human Services Xavier Becerra took several steps to remind Texas and other states that child-welfare agencies should support LGBTQ youths and that denying medical care based on gender identity would violate federal law.
Paxton pushed back on March 9, amending an existing lawsuit challenging federal guidance on transgender medical care. Paxton argues in court papers that Texas is not seeking to deny medical care based on gender identity, but to bar “unnecessary medical interventions” on children.
Although some in Texas have argued that Paxton’s legal opinion is not binding, Jaime Masters, the commissioner of the state’s DFPS and an Abbott appointee, ordered her department to carry out the governor’s instruction to investigate families.
That prompted a lawsuit in state court by the American Civil Liberties Union and the Lambda Legal Defense and Education Fund. The suit named Mooney, the Houston child psychologist, as well as the family of the state child-protection worker and her 16-year-old transgender daughter, as plaintiffs.
In an affidavit, the child-protection worker and mother says the governor’s and attorney general’s letter have “wreaked havoc in our lives.”
The worker, identified as Jane Doe, says her daughter, identified as Mary, began puberty-suppressing treatments last year after a diagnosis of gender dysphoria.
“Being able to be affirmed as who she is, including through the course of treatment prescribed by her doctors, has brought Mary significant relief and allowed her to thrive,” Jane Doe says in the affidavit.
The mother said that after she contacted DFPS to inquire about how the officials’ letters would affect department policy, she was placed on paid leave and later contacted by a department investigator to determine if she and her husband had committed abuse in affirming their daughter’s gender identity.
“Mary has been traumatized by the prospect that she could be separated from her parents and could lose access to the medical treatment that has enabled her to thrive,” Jane Doe says in the affidavit. “We are living in constant fear about what will happen to our family due to the actions by DFPS, the governor, and the attorney general.”
A Travis County District Court judge on March 2 issued a temporary restraining order blocking the investigation of the Doe family while the lawsuit proceeds. But the judge stopped short of issuing a statewide injunction pending further proceedings. Paxton’s office appealed the TRO, but a state appellate court dismissed his motion on March 9.
Updated Saturday, March 12: On March 11, District Judge Amy Clark Meachum held a hearing and issued a statewide injunction blocking any investigations under the governor’s directive to DFPS. She said there was a substantial likelihood that the plaintiffs would prevail in their suit, which argues that the Abbott directive violates the state constitution and state administrative law.
Paxton said on Twitter that he would appeal the injunction.
“Democrat judge tries to halt legal and necessary investigations into those trying to abuse our kids through ‘trans’ surgeries and prescription drugs,” he tweeted. “I’m appealing. I’ll win this fight to protect our Texas children.”
Educators still awaiting guidance
The Abbott and Paxton letters, and the governor’s request to the DFPS commissioner, have prompted concern among Texas educators whose legal responsibilities put them at the center of a heated controversy.
“Teachers don’t want to get involved with this,” said Clay Robison, a spokesman for the Texas State Teachers Association, an affiliate of the National Education Association. “Our members don’t want to be the transgender police for Greg Abbott.”
Robison says the Abbott and Paxton letters appeared motivated by political considerations. Abbott is seeking re-election as the Republican nominee and will face Democrat Beto O’Rourke in November. Paxton, seeking to keep his post, faces a Republican nomination runoff against George P. Bush in May.
Robison said teachers are awaiting guidance from their school districts on how the Abbott and Paxton interpretations will apply to mandatory reporters in schools.
The Texas Association of School Boards, which has issued guidance about reporting requirements in the past, said in response to a query from Education Week that it did not want to comment on the controversy.
Mandatory reporting laws can include criminal penalties
All 50 states have mandatory-reporting statutes that typically require teachers, social workers, therapists, doctors and certain others to report maltreatment of children to authorities. Some, such as Texas, contain criminal penalties for violations.
Some states require all persons to report abuse. Texas has such a provision applying to the general public, requiring anyone who has “a reasonable cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report.”
A separate provision of state law applies to professionals, including teachers, day care employees, and juvenile probation officers, to report suspected abuse within 48 hours.
Many state and national groups representing the professionals who are mandatory reporters have objected to the Abbott and Paxton letters, including the American Academy of Pediatrics, the American Psychological Association, and the National Association of Social Workers.
The interpretations are “alarming,” said Stacie LeBlanc, the board chair of the American Professional Society on the Abuse of Children. “We have a whole team working on this.”
The group issued a statement on March 7 that says, “Gender-affirming care is an important aspect of affirming the identity of, and mitigating the health risks to, transgender youth.” The group “strongly opposes the characterization of gender-affirming care as child abuse when provided in accordance with professional and ethical responsibilities and accepted standards of care.”