Analyzing The Texas A.G.’s Arguments To Prohibit Gender-Affirming Care to Transgender Minors
Nicole T. LeBoeuf
Owner, LeBoeuf Law, P.L.L.C.
Adjunct Professor, UNT Dallas College of Law
Derek Mergele-Rust
Founding Partner, DebnamRust, P.C.
ISSUE 12 | SPRING 2023 | GENDER & SEXUALITY |
I. Introduction
On February 18, 2022, at the request of Representative Matt Krause of Fort Worth, as Chair of the House Committee on General Investigating,¹Texas Attorney General Ken Paxton issued Opinion No. KP-0401 (“OAG Opinion”).² The OAG Opinion asserts that several procedures and treatments, when approved for minor children, “can” legally constitute child abuse.³ Such treatments, per the OAG Opinion, specifically include puberty-suppressing or puberty-blocking medications, hormonal supplements, and surgeries, labeled by Mr. Krause as “sex-change procedures.”⁴ Although Texas Attorney General opinions are advisory only and cannot make law,⁵ on February 22, 2022, Texas Governor Greg Abbott directed the Commissioner of the Texas Department of Family and Protective Services, Jamie Masters, to investigate “gender transitioning procedures” as child abuse (“Abbott Directive”).⁶ The Abbott Directive also expressly references Texas’s child abuse reporting requirements and the criminal penalties that may be levied against professionals “including doctors, nurses, and teachers” for failing to report abuse.⁷ Finally, the Abbott Directive directs “all other state agencies” to “follow the law as explained in OAG Opinion No. KP-0401.”⁸
Upon receipt of the Abbott Directive, the Texas Department of Family and Protective Services (“DFPS”) immediately began investigating families of transgender⁹ children, while internally directing its employees to refrain from using any emails or text messages for such investigations, and to pass all such investigations up the chain to high-level supervisors.¹⁰ A number of lawsuits have now been filed seeking to declare the directive in the Abbott Directive to be ultra vires (meaning that it was done beyond the scope of his powers) and a violation of separation of powers. The other legal arguments assert that gender-affirming care for minors, when provided in connection with a medical diagnosis of gender dysphoria¹¹ is medically accepted care that can be lifesaving, medically necessary, and age-appropriate.¹²
During the 87th Regular session, the Texas Legislature considered, but did not pass, proposed legislation that would have changed Texas law to include treatment for gender dysphoria under the definition of child abuse.¹³ If the OAG Opinion and the subsequent Abbott Directive are without legal authority, then the open investigations of the families of transgender children, based on the provision of medically prescribed gender-affirming care, would appear to be nothing more than the inappropriate politicization of private medical decisions made by Texas families and their children.
II. The Texas Attorney General’s Arguments
Child abuse has several definitions under the Texas Family Code,¹⁴ but the Attorney General specifically points to the first four definitions in the statute as relevant to the OAG Opinion. In the opinion, the Attorney General argues that:
elective “sex-change” procedures performed on minors often sterilize the minor in violation of the minor’s constitutional right to procreate;
insufficient evidence exists to prove that if puberty blockers are stopped, the body will resume a normal puberty process, potentially affecting a child’s ability to procreate;
no evidence exists to demonstrate long-term mental health benefits or a reduction in suicide rates from hormonal or surgical intervention;
the State has a duty to intervene in parental choices when procedures impose significant or irreversible effects on children; and
a conservator’s right to consent to medical treatment does not extend to elective medical procedures and treatments that infringe on a child’s constitutional right to procreate.¹⁵
The next sections will identify the current standards of care for a minor diagnosed with gender dysphoria, and then analyze the Attorney General’s arguments against the adopted standards of care.
III. Age-Appropriate Standards for Gender-Affirming Care
The World Professional Association of Transgender Health (“WPATH”) is an international interdisciplinary professional and educational organization dedicated to transgender health.¹⁶ WPATH has developed medical standards of care for treating persons with gender dysphoria.¹⁷ Gender dysphoria is the formal diagnosis from the DSM-V for when a person’s gender identity¹⁸ does not match the gender assigned to them at birth. The WPATH Standards of Care have been adopted by the American Medical Association, the American Pediatric Association, and the Endocrine Society, and are widely viewed as the standard practices for treating gender dysphoria.
Treating gender dysphoria in minors is critical because minors who experience gender dysphoria are nine times more likely to attempt suicide than their peers.¹⁹ For people who suffer from gender dysphoria, the condition is worsened as their body develops through puberty and further diverges from their gender identity.²⁰ Prescribed treatments of gender dysphoria—puberty blockers, hormone therapy, and surgery—are meant to alleviate the dysphoria and reduce the divergence between a person’s gender identity and their physical attributes.
Puberty blockers were first approved by the Food and Drug Administration ("FDA") in 1993.²¹ Initially, puberty blockers were developed for children who were entering puberty at a very early age. In those cases, puberty blockers were prescribed by a doctor for a period of time, usually no more than two years, so that a child could enter puberty at a more “age-appropriate” time. Once a doctor determined that it was an appropriate time for the child to begin puberty, the child simply stopped taking the puberty blockers and entered puberty. Like any medication, puberty blockers are not side-effect free, and there is a possibility that taking puberty blockers could impact bone density, fertility, and mental health. In the case of gender dysphoria, the goal of puberty blockers is to stall puberty to give the minor additional time to evaluate their gender identity with mental health and medical professionals.²²
Hormone therapy treatments are also prescribed by doctors. Usually, if a minor is transitioning from male to female, the hormone treatment consists primarily of estrogen. If a minor is transitioning from female to male, the hormone treatment consists primarily of testosterone. The goal of hormone therapy is to allow the body to develop more consistently with the person’s gender identity and to reduce the dysphoria between the minor’s gender identity and the development of their body through puberty. Hormone therapy is only prescribed in consultation with a doctor, (preferably a mental health professional) and with the minor’s informed consent, because if the minor decides to stop taking the hormone therapy, some of the bodily developments may not be entirely reversible without surgery.
Finally, surgery is treated as appropriate only in rare circumstances. The WPATH Standards of Care only approve surgery in minors who are transitioning from female to male and where the gender dysphoria is having a severe impact on the minor’s mental health.²³ The only surgery that falls within the WPATH Standards of Care is what is commonly referred to as “top surgery,” which is the removal of breast tissue to conform to a “common” male appearance.
The prescription of puberty blockers, hormone therapy, or surgery by a doctor, require the consent of all parents with legal rights to the child. If one parent believes that the prescribed treatment is in the best interest of their child, but the other parent does not, the treatment may not proceed. This is true for any treatment of a minor child.
IV. Evaluation of the Attorney General’s Opinion, the Governor’s Directive, and DFPS’s actions
A. Neither the Texas Governor nor the Texas Attorney General have authority to change or dictate how the DFPS implements its work.
On May 13, 2022, the Texas Supreme Court noted, “DFPS’s press statement [] suggests that DFPS may have considered itself bound by either the Governor’s letter, the Attorney General’s Opinion, or both . . . but neither the Governor nor the Attorney General has statutory authority to directly control DFPS’s investigatory decisions.”²⁴
By attempting to redefine what constitutes child abuse and purporting to “direct” DFPS to investigate all reported instances of gender-affirming care being provided to minor children, the Governor exceeded his authority. Under the Texas Constitution, the Governor is authorized to “cause the laws to be faithfully executed,” but is not authorized to make the law (as the Legislature can).²⁵ Also, neither he nor the Attorney General can suspend laws under the Texas Constitution.²⁶ The power to make rules regarding investigations of child abuse resides with DFPS—not the Governor or the Attorney General—and must be done in conformance with the rulemaking process.²⁷
The Texas Constitution prohibits one branch of state government from exercising power inherently belonging to another branch.²⁸ The Legislature considered these very changes to the definition of “child abuse” during the 87th Regular Session of the Texas Legislature and declined to adopt such changes by amending existing statutes or passing new ones.²⁹ Any effort to do so through the Attorney General or the Governor is an overreach by the executive branch into the legislative branch.
The “power to make, alter, and repeal laws” lies with the state Legislature, and such power is “limited only by the express or clearly implied restrictions thereon contained in or necessarily arising from the Constitution.”³⁰ Texas law mandates that the executive branch and the courts must, in construing statutes, take them as they find them.³¹ In particular, the other branches are not empowered to “substitute what [they] believe is right or fair for what the legislature has written.”³² Doing otherwise impermissibly trespasses into the role of the Legislature.
B. DFPS’s changes to its definition of abuse and its targeting of the families of transgender children exceed its rulemaking authority.
Texas agencies operate under rules which, by definition, implement, interpret, and prescribe law or policy, or describe the procedure or practice requirements of a state agency.³³ The creation of an agency policy that enlarges the definition of child abuse to include the provision of evidence-based and medically necessary gender-affirming treatment to a minor with a medically diagnosed condition³⁴ constitutes rule-making.³⁵ Although DFPS Commissioner Masters is statutorily authorized to “develop and adopt standards for persons who investigate suspected child abuse or neglect at the state or local level” by rulemaking,³⁶ any such rulemaking is governed by statute.
Under the Texas Administrative Procedure Act, a Texas state agency’s rulemaking authority is limited by the Texas Government Code.³⁷ In order to change its rules regarding what constitutes child abuse, DFPS must substantially comply with such statutes. DFPS has not done so as there has been no publication in the Texas Register of the proposed rule change, no reasonable opportunity for public comment, no legislative review of the proposed rule, and no formal adoption of the rule by the agency together with a summary of comments and the factual bases for the rule.³⁸ Nor has there been any showing of the need for an emergency rule.³⁹
A rule that is not properly promulgated under the mandatory requirements of the Texas Administrative Procedure Act is invalid.⁴⁰ But even if DFPS had complied with the rulemaking requirements of the Texas statutes, such a rule would be invalid because it stands in contravention of the agency’s enabling statute. Section 40.002 of the Texas Human Resources Code specifies that DFPS “shall . . . provide family support and family preservation services that respect the fundamental right of parents to control the education and upbringing of their children.”⁴¹ Thus, a rule is facially invalid if it (1) contravenes specific statutory language of an agency’s enabling statute; (2) runs counter to the general objectives of the statute; or (3) imposes burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions.”⁴²
Additionally, a rule that purports to govern matters outside the authority of an agency is also invalid as a matter of law. The definition of “child abuse” is provided by statute in Tex. Fam. Code § 261.001(1). A change to the statutory definition falls outside of the agency’s authority, and is a matter appropriately left to the Legislature.⁴³
C. The OAG Opinion, Abbott Directive, and DFPS’s decision to accept gubernatorial direction governing its practice constitute violations of the United States and Texas Constitutions.
Parents have a fundamental right to oversee the care, custody, and control of their children without government intervention.⁴⁴ This means that the government cannot interfere with child-rearing decisions because they do not like the decisions that the parents are making, without a showing that the child is in immediate danger.⁴⁵ This fundamental right is embedded in the Due Process and the Equal Protection Clauses of the United States and Texas Constitutions.⁴⁶ Additionally, parents are legally presumed to act in their child’s best interest.⁴⁷ Fundamental rights that are protected by the Constitution enjoy strict scrutiny.⁴⁸ Strict scrutiny requires the government to show that any law restricting a fundamental right is narrowly tailored to further a compelling governmental interest.
In 2021, Arkansas passed a law that banned gender-affirming care for minors.⁴⁹ The Government argued that its compelling governmental interest was “protecting the health and safety of its citizens, particularly ‘vulnerable’ children who are gender nonconforming.”⁵⁰ The Court held that the defendants failed to show that “Arkansas ha[d] a compelling state interest in infringing upon parents’ fundamental right to seek medical care for their children, or that [the law] was narrowly tailored to serve that interest.”⁵¹ Specifically, Arkansas’s goal was “pretextual” because the law allowed all of the same treatments for minors who did not suffer from gender dysphoria.⁵² In the case of puberty blockers, this would include minors who are entering puberty too early, thus allowing minors access to the same treatment as long as they have a different clinical diagnosis. In the case of hormone therapy, a similar situation would occur as many teenage girls are prescribed estrogen treatments in the form of birth control, but prescribing estrogen would be banned specifically for transgender girls under the guise of protecting the health and safety of children. As a result, the Eastern District Court in Arkansas expressly says that the purpose of the law in Arkansas was not to ban a treatment, but rather to “ban an outcome that the State deems undesirable.”⁵³ Therefore, the law does not stand up to strict scrutiny, and is not valid.
Texas, and specifically DFPS in child abuse investigations, faces a similar hurdle because, like the Arkansas law, the Government’s actions are not narrowly tailored, and because the medical treatments in question are consensus treatments adopted by the medical community. DFPS would struggle to argue why the exact same treatment would be harmful to minors with one clinical diagnosis, but not harmful to minors with another clinical diagnosis. Because the treatments are medically acceptable in other situations, the treatments fall within the scope of the parent’s decision-making authority and are protected by the Constitution.
V. Conclusion
The reality is that children’s lives are on the line. As identified above, transgender children are nine times more likely to attempt to commit suicide than their cisgender peers.⁵⁴ Not all parents agree on the best way to treat their children who suffer from gender dysphoria. However, that is a conversation to be had between parents, the child, and medical professionals. The government has no legal authority to insert itself into that conversation, especially when their goal is merely to politicize the definition of child abuse in an effort to ban an outcome the government or some of its officials consider to be undesirable.
Suggested Citation: Nicole LeBoeuf & Derek Mergele-Rust, Politicizing Child Abuse: Analyzing The Texas Attorney General’s Arguments To Prohibit Gender-Affirming Care To Transgender Minors, ACCESSIBLE LAW, Spring 2023, at 22.
Sources:
[1] Letter from Chairman Matt Krause, Tex. House Comm. on Gen. Investigating to Tex. Att’y Gen. Ken Paxton (Aug. 23, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0426KP.pdf [hereinafter Request Letter]; see also Letter from Comm’r Jaime Masters, Tex. Dept. of Family & Protective Servs. to Governor Greg Abbott, State of Tex. (Aug. 11, 2021), https://gov.texas.gov/uploads/files/press/Response_to_August_6_2021_OOG_Letter_08.11.2021.pdf (calling “genital mutilation” actionable and reportable child abuse, unless medically necessary, and proffering an opinion of “medical necessity”).
[2] Tex. Att’y Gen. Op. No. KP-0401 (2022), https://texasattorneygeneral.gov/sites/default/files/global/KP-0401.pdf.
[3] Id. at 2.
[4] Id. at 1–2; Request Letter, supra note 1.
[5] Tex. Govt. Code §§ 402.041, 402.042; cf. Opinions, KEN PAXTON ATT’Y GEN.
TEXAS, https://www.texasattorneygeneral.gov/opinions (describing a Texas Attorney General opinion as a “written interpretation of existing law” and explaining that such opinions “cannot create new provisions in the law or correct unintended, undesirable effects of the law”) (last visited Feb. 3, 2023); see also Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996) (citing Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177, 185 (Tex. Civ. App.—Houston [14th Dist.] 1975), writ ref’d per curiam, 536 S.W.2d 559 (Tex. 1976)) (“While Attorney General opinions are persuasive, they are not controlling on the courts.”).
[6] Letter from Governor Greg Abbott Letter to Comm’r Jaime Masters, Tex. Dept. of Family & Protective Servs. (Feb. 22, 2022), https://gov.texas.gov/uploads/files/press/O-MastersJaime202202221358.pdf [hereinafter Abbott Directive].
[7] Id.
[8] Id.
[9] A transgender boy is someone who assigned a female sex at birth but persistently, consistently, and insistently identifies as male. A transgender girl is someone who was assigned a male sex at birth but persistently, consistently, and insistently identifies as female.
[10] See Texas Department of Family and Protective Services Records Regarding State Directive Classifying Gender-Affirming Care as ‘Child Abuse,’ AM. OVERSIGHT (Aug. 19, 2022), https://www.americanoversight.org/document/texas-department-of-family-and-protective-services-records-regarding-state-directive-classifying-gender-affirming-care-as-child-abuse.
[11] According to the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders (“DSM-V”), “gender dysphoria” is the diagnostic term for the condition experienced by some transgender people of clinically significant distress resulting from the lack of congruence between their gender identity and the sex assigned to them at birth. In order to be diagnosed with gender dysphoria, the incongruence must have persisted for at least six months and be accompanied by clinically significant distress or impairment in social, occupational, or other important areas of functioning.
[12] See Abbott v. Doe, No. 03-22-00107-CV, 2022 Tex. App. LEXIS 1607, 2022 WL 710093 (Tex. App.—Austin Mar. 9, 2022).
[13] See S.B. 1646, 87th Leg., Reg. Sess. (Tex. 2021), https://legiscan.com/TX/text/SB1646/id/2332814 (Senate Bill 1646 would have amended Section 261.001 of the Texas Family Code to add certain treatments to the definition of “child abuse.”); see also H.B. 68, 87th Leg., Reg. Sess. (Tex. 2021), https://legiscan.com/TX/bill/HB68/2021 and H.B. 1339, 87th Leg., Reg. Sess. (Tex. 2021), https://legiscan.com/TX/bill/HB1339/2021 (House Bill 68 and House Bill 1339 would have prohibited medical treatment for gender dysphoria in minors).
[14] See e.g., Tex. Fam. Code §261.001(A)–(D) (“‘Abuse’ includes the following acts or omissions by a person: (A) mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning; (C) physical injury to a child that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child,
including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; [and] (D) failure to make a reasonable effort to prevent an action by another
person that results in the physical injury that results in the substantial harm to the child . . . .”).
[15] Tex. Att’y Gen. Op. No. KP-0401(2022), https://texasattorneygeneral.gov/sites/default/files/global/KP-0401.pdf.
[16] Mission and Vision, WORLD PROF’L ASS’N FOR TRANSGENDER HEALTH, https://www.wpath.org/about/mission-and-vision (last visited Feb. 3, 2023).
[17] Id.
[18] Gender identity refers to a person’s internal, innate, and immutable sense of belonging to a particular gender.
[19] Grimm v. Glouchester Cty. Sch. Bd., 972 F.3d 586, 595 (4th Cir. 2020).
[20] Id.
[21] About Puberty Blockers, OR. Health & Science Univ. Gender Clinic (Sept. 2020), https://www.ohsu.edu/sites/default/files/2020-12/Gender-Clinic-Puberty-Blockers-Handout.pdf.
[22] Id. at 2.
[23] E. Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, INT’L J. TRANSGENDER HEALTH, Sept. 15, 2022, at 48.
[24] In re Abbott, 645 S.W.3d 276, 281 (Tex. 2022) (reviewing on mandamus an order granting injunctive relief entered in a case addressing the OAG Opinion, the Abbott Directive, and the DFPS directive).
[25] Tex. Const. art. IV, § 10.
[26] Tex. Const. art. I, § 28 (“No power of suspending laws in this State shall be exercised except by the Legislature.”).
[27] See Tex. Fam. Code Ann. §§ 261.001, 261.301; Tex. Hum. Res. Code Ann. § 40.027(c)(3); Tex. Gov’t Code Ann. §§ 2001.023, 2001.029, 2001.032, 2001.033, 2001.035.
[28] Tex. Const. art. II, § 1.
[29] See sources cited supra note 13.
[30] Diaz v. State, 68 S.W.3d 680, 685 (Tex. App.—El Paso 2000, pet denied) (citations omitted).
[31] See City of Port Arthur v. Tillman, 398 S.W.2d 750, 752 (Tex. 1965); Tex. Highway Comm’n v. El Paso Bldg. & Const. Trades Council, 234 S.W.2d 857, 863 (Tex. 1950); Simmons v. Arnim, 220 S.W. 66, 70 (Tex. 1920).
[32] Vandyke v. State, 538 S.W.3d 561, 569 (Tex. Crim. App. 2017).
[33] Tex. Gov’t Code § 2001.003(6)(A).
[34] See the order of temporary injunction entered in Doe v. Abbott, No. D-1-GN-22-000977, 2022 WL 831383, at *1 (353rd Dist. Ct., Travis County, Mar. 11, 2022), in which the Court found after evidentiary hearing that “gender-affirming care was not investigated as child abuse by DFPS until after February 22, 2022” and “[t]he Governor’s Directive was given the effect of a new law or new agency rule, despite no new legislation, regulation or even stated agency policy.”
[35] See Tex. Alcoholic Beverage Comm’n v. Amusement & Music Operators of Tex., Inc., 997 S.W.2d 657, 658 (Tex. App.—Austin 1999, writ dism’d w.o.j.) (holding that memoranda constituted a “rule” because they “set out binding practice requirements” that “substantially changed previous enforcement policy”).
[36] Tex. Hum. Res. Code Ann. § 40.002(b); Tex. Fam. Code § 261.310(a).
[37] Tex. Gov’t Code § 2001.023.
[38] Tex. Gov’t Code §§ 2001.023, 2001.029, 2001.032, 2001.033, and 2001.035.
[39] See Tex. Gov’t Code § 2001.034.
[40] El Paso Hosp. Dist. v. Tex. Health & Human Servs. Comm’n, 247 S.W.3d 709, 715 (Tex. 2008).
[41] Tex. Hum. Res. Code § 40.002(b)(2).
[42] Gulf Coast Coal. of Cities v. Pub. Util. Comm’n, 161 S.W.3d 706, 712 (Tex. App.—Austin 2005, no pet.).
[43] See Williams v. Tex. State Bd. of Orthotics & Prosthetics, 150 S.W.3d 563, 568 (Tex. App.—Austin 2004, no pet.) (“An agency rule is invalid if . . . the agency had no statutory authority to promulgate it . . . .”).
[44] Troxell v. Granville, 530 U.S. 57, 66 (2000).
[45] Id. at 68–69.
[46] Id. at 66; see also In re C.J.C.,603 S.W.3d 804, 808 (Tex. 2020).
[47] Troxell, 530 U.S. at 68.
[48] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16 (1973) (“[T]his Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights . . . .”).
[49] See Brandt v. Rutledge, 551 F.Supp.3d 882, 887 (E.D. Ark. 2021).
[50] Id. at 887–88.
[51] Id. at 893.
[52] Id.
[53] Id. at 891.
[54] See Grimm v. Glouchester Cty. Sch. Bd., 972 F.3d 586, 595 (4th Cir. 2020).
