Labeling Trans Kid Care ‘Abuse’ Mirrors Texas’ Abortion Tactic

Texas’ crackdown on gender affirming care for kids follows the chilling strategy the state used last year to limit abortion access, gay rights advocates warn.

Though Gov. Greg Abbott (R) and Attorney General Ken Paxton’s (R) announcement that gender-affirming care for transgender children is abuse that must be reported and investigated may not survive legal scrutiny, it will likely prevent at-risk children from seeking necessary medical treatment, advocates said. Similar to Texas’s recent abortion law (SB 8), the goal is to scare medical providers from offering certain services.

“What’s happening is you may have folks on the far right using scare tactics to chill behaviors,” said Shelly Skeen, senior attorney at Lambda Legal. “It’s the same with SB 8. Even though abortion is arguably still legal up to six or eight weeks, you’ve got providers saying, ‘Oh my gosh, I might get sued. Well, I’m not going to do it.’ And so, it’s creating this atmosphere that’s not based in reality.”

Abbott’s letter called for the state’s child-welfare agency to investigate “sex change” procedures for youth, including surgeries and puberty-blocking drugs. It also said licensed professionals who have direct contact with children, like doctors, teachers, and coaches, and members of the general public are required to report child abuse and may be subjected to criminal penalties if they don’t. This came a day after Paxton issued an opinion that deemed gender-affirming care to be child abuse.

Similar Strategy

Abbott’s letter to his agency heads “is very directly saying ‘members of the public report these families, report these children to the state and the state will potentially prosecute them,’” said Dara Purvis, a professor of law at Penn State Law and scholar of family law and gender identity.

“This combines the vigilante technique of SB 8 with I would describe it as state violence against families and against children,” she said.

Abbott’s office declined to comment and Paxton’s didn’t respond to requests for comment.

A local conservative nonprofit group that fights for faith and family freedoms, however, pushed back on critics who say the state is using vigilante tactics to limit transgender rights.

“Vigilantism implies someone without legal authority that attempts to carryout law enforcement functions, said Jonathan Covey, director of policy for Texas Values. “This is clearly a statement from the top law enforcement officer in the state indicating how his office interprets and ultimately enforces the law.”

Public Enforcement

Like the mandatory reporting requirements in the transgender care order, SB 8 also put enforcement power in the public’s hands. The law allows private citizens to bring a civil lawsuit against a health-care professional who performs an abortion after six weeks of pregnancy as well as anyone who aids and abets in that procedure.

It had an almost immediate chilling effect on abortion providers when it went into effect in September and its novel enforcement mechanism has created legal hurdles that have kept courts from blocking it so far. The Texas Supreme Court heard arguments Thursday over whether members of state licensing boards even have the power to enforce the law.

Medical guidelines don’t recommend children start puberty blockers until the first signs of puberty or start sex hormones until they have the mental capacity to give informed consent, which is typically 16. Sex reassignment surgeries aren’t recommended under the age of 18, under the guidelines from the Endocrine Society.

The recent actions still seem to be causing confusion in Texas’ medical community. The Texas Medical Association in a statement said it’s seeking answers from the governor’s office and others to determine what these orders actually mean for patients and the physicians who care for them.

While the state’s actions on gender-affirming care for transgender kids similarly calls on the public to report offenders, advocates say there are distinct and important differences between the two.

“In SB 8, the enforcement mechanism was civil procedure and here they are employing criminal procedure,” said Gillian Branstetter, press secretary for the National Women’s Law Center.

“Secondly, if SB 8 was a call for mercenary justice in their fight against abortion, right now they are drafting people whether they like it or not into their fight against trans kids.”