A recent Texas attorney general opinion has threatened gender-affirming health care in Texas. Depending on a judicial clarification, parents are threatened for seeking such care for their trans children.
Texas attorney general’s attempt to criminalize gender-affirming care
Kenneth Paxton is serving his 2nd term as Texas attorney general and is seeking reelection in November 2022, but he faces a tough runoff in the May GOP primary. He’s currently awaiting trial for a 2015 indictment on charges of securities fraud and is being investigated by the FBI over allegations of bribery and abuse of office.
Paxton is the instigator of the issue addressed here. In February 2022, he issued an AG Opinion declaring that gender-affirming health care for transgender youths constituted child abuse under Texas’s child abuse law.
Many see his opinion as an anti-LGBTQ political stunt to reassure his ultra-right-wing base. Nevertheless, his opinion poses a threat to well-intentioned parents of transgender children.
The Texas attorney general said in an opinion that “gender-affirming health care” is a form of child abuse that should be subject to investigation and prosecution by the Texas Department of Family and Protective Services.
“The Texas Department of Family and Protective Services (DFPS) has a responsibility to act accordingly. I’ll do everything I can to protect against those who take advantage of and harm young Texans.”
Gender identity and gender-affirming health care
Paxton’s opinion demonstrates his ignorance of gender identity and gender-affirming health care.
Gender identity refers to an individual’s sense of their gender, which is unrelated to biological sex. Sex refers to the biological and physiological characteristics of female and male bodies.
Individuals are often expected to perform their gender in a way that ‘fits’ into socially constructed norms of external behavior and internal thought processes that align with the sex they were assigned at birth.
But individual behavior and thinking are not necessarily determined by social norms and expectations. DNA, as much as social expectations, determines a person’s gender identity. Just as people don’t choose to be gay or straight, they also don’t choose their gender identity.
Gender-affirming health care helps people align their gender identity with their outward appearance. A discrepancy between the two can lead to low self-esteem, depression, discrimination, exclusion and bullying.
Gender affirming treatment is a holistic approach that can include a wide range of treatments, from speech therapy to medications to surgery, which seek to align an individual’s outward physical characteristics with their inward identity.
Parental child abuse penalties for providing gender-affirming care
According to a report by the Office of Population Affairs, “Research demonstrates that gender-affirming care improves the mental health and overall well-being of gender diverse children and adolescents.” Instead of child abuse, it seeks to relieve a child from the inner turmoil they experience when their gender identity doesn’t coincide with their outward appearance.
Under Texas penal code §22.04, a person who intentionally causes “serious bodily injury or serious mental deficiency, impairment, or injury to a child” is guilty of a 1st-degree felony punishable by a maximum sentence of 99 years or life in prison and/or a maximum fine of $10,000.
Child abuse is defined by Texas Family Code §261 to include “mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning.”
Fortunately, an attorney general’s opinion does not constitute law. In 2021, the Texas legislature failed to pass proposed legislation that would have made gender-affirming treatments a felony.
For the moment, the Texas Department of Family and Protective Services (DFPS) is temporarily halted from investigating parents for gender-affirming medical care for their children.
Will Texas parents be prosecuted for providing gender-affirming care?
The temporary injunction against the DFPS is set for hearing on a permanent injunction. If a permanent injunction is not issued, parents of transgender children will be threatened.
The most viable defense is to argue factually that gender-affirming treatment does not constitute child abuse. This will require an experienced child abuse defense lawyer who will need to have expert trial experience and knowledge of the emerging and developing science of transgender affirmation.
When to contact a defense attorney
Child abuse cases that might emerge out of the attorney general’s opinion will require a Texas child abuse defense lawyer with extensive experience in other child abuse defenses.
