The American Civil Liberties Union has filed suit in Texas to prevent government officials from investigating parents for child abuse if they seek medical treatment for their transgender children.
Last week Republican Gov. Greg Abbott, responding to a memo from Republican Attorney General Ken Paxton, ordered the state’s Department of Family and Protective Services (DFPS) to launch these investigations. Paxton argued in his memo that any sort of medical treatment of a trans minor constituted child abuse because some treatments may interfere with the child’s ability to reproduce.
However, this threat didn’t just cover gender reassignment surgery—something that normally doesn’t happen to minors anyway—but also hormonal treatments that block the impacts of puberty on a trans teen—something that doesn’t sterilize them and is reversible. The order also came with a massive threat to any government official or health worker inclined to look the other way: They could also be prosecuted if they knew a parent was pursuing medical treatment for a trans child and did not report them to the authorities.
While this might have looked like the latest loudmouthed culture war fight—the memo doesn’t change the state’s statutory definition of child abuse—the Texas DFPS has begun investigating parents of trans kids. The first target was one of their own. The New York Times reports that the DFPS put one of its own staff members on leave as the agency investigates her over the medical treatment her 16-year-old trans daughter is receiving. The agency has attempted to demand the mother (who is not identified) provide the teen’s medical records. She’s refusing, and now with the ACLU’s help, she’s suing to attempt to stop both the investigation and enforcement of Abbott’s order.
The ACLU’s lawsuit, filed Tuesday in the District Court of Travis County, Texas, after spending pages explaining the process by which this banned treatment is recommended by medical professionals, zeros in on a position libertarians can appreciate: The governor, attorney general, and the DFPS do not have the authority to do any of this under Texas’ own laws. The parent and child (both listed as Does) are joined as plaintiffs in the lawsuit by Megan Mooney, a psychologist who treats trans patients and is legally required by Texas law to report actual child abuse to the state.
Texas lawmakers considered a bill just last year, S.B. 1646, that would have amended the state’s statutory definition of “child abuse” to include medical treatments for trans youths. The bill didn’t pass. The ACLU notes that after the bill failed, Abbott went on a radio to explain that he had a “solution” to this alleged problem. That solution was for the attorney general’s office to administratively declare that this treatment could count as child abuse anyway, deliberately ignoring all the professional medical organizations who say otherwise (including the Texas Pediatric Society).
This decision, according to the ACLU, puts Abbott, Paxton, and the DFPS at odds with Texas’ Administrative Procedure Act, which controls the process by which Texas agencies implement new rules. The ACLU argues that the decision to start investigating parents of trans kids as possible abusers obviously constitutes a change of rules, but it didn’t go through the process indicated by law. In short, nobody involved in this decision has the authority to just declare any of this.
“Every major medical organization in the United States considers the treatment now effectively banned and criminalized by DFPS to be medically necessary,” the lawsuit argues. “Such a radical disregard of medical science and the medical needs of a subset of minors in Texas cannot be squared with the agency’s authority by prescribed by Statute.”
The ACLU is asking the court to stop the DFPS from using Abbot’s and Paxton’s memos as justification to investigate parents of trans kids for child abuse over medical treatment; a judgement that the policy violates the state’s Administrative Procedure Act; a declaration that Abbott and DFPS have acted outside of their constitutional authority; and potentially a permanent injunction.
Critics of helping minors transition say parents are rushing into major decisions without a full understanding of the risks. Whether that’s true, the solution is not to put politicians and the government in control of what constitutes legitimate medical treatment. We’ve just endured two years of bizarre and seemingly arbitrary COVID-19 public health rules, many of which were not supported by science. Conservatives in particular should be very aware by now that politics is a poor mechanism for determining proper medical treatment. Politicians don’t decide what medical treatments work or don’t work. They decide which ones are legal or forbidden.
The ACLU includes in their lawsuit an appeal to parents’ rights, something that Abbott claims to support:
By, in effect, cutting off the ability of parents to treat their minor adolescent children in accordance with doctor-recommended and clinically appropriate care, the agency’s new rule infringes on the Does’ parental rights. The agency’s new rule substitutes parents’ judgment as to what medical care is in the best interests of their children for the judgment of the government.
But it turns out that in this case, throwing the parents of trans teens under the bus is a big political winner, according to Abbott’s political strategist. Don’t trust politicians in general, but especially don’t trust politicians who only believe in certain parents’ rights and not others.