Constitutional Law Blog Essay

Texas Anti-Transgender Policy: Medically and Constitutionally Unsound A.G. Opinion Wields Trans Youth as Political Pawns

Ignore the medical needs of your children or the government will take them from you. This was the message Texas Governor Greg Abbott sent to families last month when he directed the state to investigate them for child abuse for providing medically necessary care to their transgender children. In wielding the state’s vulnerable youth as political pawns, the Governor’s directive denies these children and their parents their constitutional rights to substantive due process and equal protection under the law.

On February 18, 2022, Texas Attorney General Ken Paxton issued a legal opinion classifying gender-affirming medical care for transgender minors as child abuse under the Texas Family Code. Erroneously referring to the administration of hormones and hormone blockers as “sterilization,” he asserted that these treatments “permanently deprive minor children of their constitutional right to procreate” without their consent. While A.G. Paxton admitted that “Texas law generally recognizes a parent’s right to consent to a child’s medical care,” he analogized parents seeking gender-affirming care for their children to parents suffering from “Munchausen by proxy,” a psychological disorder whose symptoms include falsifying a child’s medical condition for attention. He closed his letter with a warning that a failure to report child abuse is a criminal offense. Four days later, Governor Greg Abbott followed suit with a letter to the Commissioner of the Texas Department of Family and Protective Services (DPFS). Relying on the Attorney General’s Opinion, the Governor directed the department to promptly investigate “reported instances of these abusive procedures in the State of Texas.” He reiterated that failure to report child abuse was a criminal offense and directed all other agencies to “follow the law as explained in [the Opinion].”

While the discriminatory actions of the Governor and Attorney General could be viewed as mere political posturing amidst a competitive primary campaign dominated by culture-war issues, investigations of parents have already begun. According to a recently filed lawsuit, on February 24, 2022, CPS initiated an investigation of a DFPS employee and her husband for providing their sixteen-year-old transgender daughter with treatment for gender dysphoria as recommended by her pediatrician and numerous specialists. The day after the complaint was filed, the court found, inter alia, that the family would “suffer irreparable injury” without the grant of a temporary injunction due to the “imminent and ongoing deprivation of their constitutional rights, the potential loss of necessary medical care, and the stigma attached to being the subject of an unfounded child abuse investigation.” The court enjoined the State “from taking any actions against Plaintiffs,” including employment action or investigating reports, “based solely on the Governor’s letter and DFPS statement[,] . . . Attorney General Paxton’s Opinion,” or “facilitating or providing gender-affirming care to transgender minors based on the fact that the minors are transgender, gender transitioning, or receiving or being prescribed gender-affirming medical treatment.” On March 11, 2022, the Court granted a statewide injunction blocking enforcement of the order, thus extending protection to all similarly situated parents and children across Texas, in addition to medical providers and mandatory reporters. The federal government also weighed in to condemn the Governor’s order, encouraging affected individuals to file civil rights complaints with the U.S. Department of Health and Human Services.  

To better recognize the constitutional implications of the Texas policy, it is important to first understand how the Governor’s directive blatantly contradicts the near-universal medical consensus regarding the appropriate course of care for transgender youth. Both the Governor and the Attorney General continually and misleadingly refer to several routine medical treatments, such as hormone therapy, as “sex change procedures” throughout their letters. This terminology, implying that transgender children are receiving genital surgery, is patently incorrect and a disingenuous attempt to play up talking points from conservative media channels. In actuality, such surgery for minors is “essentially nonexistent,” and the World Professional Association for Transgender Health (WPATH), widely endorsed by leading international medical associations, explicitly advises that no one under the age of majority should be provided surgical treatment for gender dysphoria. (The WPATH standards of care have also been called the “gold standard” by at least one federal appeals court.) In fact, WPATH advises against any form of medical intervention for transgender youth before puberty, recommending instead a focus on social transitioning, which includes the use of a child’s preferred name, pronouns, and clothing. Only after puberty, following careful monitoring and consultation with the youth and their parents, a medical professional may recommend the administration of puberty-blocking medication with an adolescent’s informed consent to prevent the exacerbation of gender dysphoria that often results from puberty. This allows more time to determine whether it is appropriate to continue treatment. Unlike puberty, puberty-blocking medication is “fully reversible” and has been safely administered for over three decades to cisgender children for conditions such as precocious puberty. Only after years of careful monitoring by a pediatric endocrinologist is the “partially reversible” administration of feminizing or masculinizing hormones then recommended.

While Texas politicians cry child abuse, the real abuse lies in denying youth the necessary care prescribed to them by their doctors. According to a study published in the Journal of the American Medical Association just after the Governor issued his letter, the “receipt of gender-affirming care, including puberty blockers and gender-affirming hormones was associated with 60% lower odds of moderate or severe depression and 73% lower odds of suicidality over a 12-month follow-up.” Again, despite Governor Abbott’s claims to the contrary, gender-affirming care is not a fringe medical position. It’s a consensus, forcefully affirmed by the country’s leading medical organizations, from the American Medical Association (AMA) to the American Psychiatric Association (APA) to the American Academy of Pediatrics (AAP).

The Governor’s policy is not just unethical but also unconstitutional. The Supreme Court has emphasized that its “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.” In Troxel v. Granville, the Supreme Court reaffirmed that the right of parents under the Due Process Clause to “direct the upbringing of their children” is “perhaps the oldest of the fundamental liberty interests” it has ever recognized. While the state has its own interest in protecting its youth, a child’s parent holds that “primary responsibility” and is “entitled to the support of laws designed to aid discharge of that ability.” If the State seeks to step in to usurp this parental authority, it needs a very good reason to do so: “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Under Texas’s regime, parents who support their children by adhering to the sound medical advice of their doctors—hardly a sign of unfitness—are being threatened with the forced removal of their children by CPS. This egregious infringement of parents’ medical decisionmaking autonomy eclipses the fact pattern of Troxel, in which the Court found unconstitutional a Washington State law that permitted any third party to petition for visitation rights of a child. This broaches a constitutional line that goes far beyond what the Troxel Court could have ever envisioned. Indeed, the Texas district court has already identified a grave, ongoing threat of “irreparable injury” as applied to the Doe family.

While parental due process claims perhaps provide the strongest avenue for challenging Texas’s policy, there are significant Equal Protection concerns implicated as well. As even the Attorney General’s letter acknowledges, treatments such as hormone therapy are routinely provided to cisgender children for certain medical conditions. In essence, Texas is saying that medically necessary hormone therapy for cisgender children is acceptable while the same medically necessary procedures for transgender children constitute child abuse. Such a policy is not grounded in any medical or otherwise rational legal basis. Likewise, Texas claims that effective endocrinological treatments infringe on transgender children’s “constitutional right to procreate,” while this consideration presumably does not matter for cisgender children who undergo the very same kinds of hormonal treatments. It’s difficult to view this uneven regime—which deprives transgender, but not cisgender, minors of medical care and threatens to tear them from their families—as justified by any legitimate government interest other than a “bare . . . desire to harm a politically unpopular group” under the specter of popular morality in order to score a partisan win. This is a legal justification that the Court has declared constitutionally unacceptable on numerous occasions. This case is no different. It is thus our responsibility as lawyers, legal scholars, and humans to stand up to the pseudolegal cruelty being perpetuated by Texas against its own children.