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Transgender Advocates Worry Texas ‘Abuse’ Policy May Spread

June 22, 2022, 9:35 AM

State policies that define gender-affirming health care as child abuse have faced early setbacks in the courts, leaving advocates watching to see what other states will do.

A directive from Texas Gov. Greg Abbott to investigate care for transgender kids as a potential form of child abuse has been temporarily enjoined by state courts twice in recent months. However, other states could look to adapt the governor’s action into legislation as gender-affirming care sees increased prominence as a wedge issue for political candidates.

Advocates are keeping a particularly close eye on Florida, where Republican Gov. Ron DeSantis has pushed for policies banning transition-related care and prohibiting instruction of sexual orientation and gender identity in schools. DeSantis told reporters June 8 he might ask Florida’s child protective services to investigate parents who take their children to drag shows.

Although it is difficult to predict what other states might do, advocates opposing such moves said the forces driving these issues are highly political and unlikely to give up because of the Texas court decisions.

“We’ve seen this as a consistent tactic by our opposition the last few years,” said Vivian Topping, director of advocacy and civic engagement at the Equality Federation, referring to policies considering gender-affirming care to be child abuse.

Neither Abbott’s office nor that of Texas Attorney General Ken Paxton responded to emails requesting comment on the court order.

“Abbott’s path is a new one,” said Jon Schweppe, director of policy and government affairs at the American Principles Project, so “people are waiting and seeing, they want to see how this plays out.” The American Principles Project is a conservative think tank that focuses on family-based political issues.

Other states want to see how the legal case goes, but there is also unlikely to be more action this year because most states have already had their legislative sessions, Schweppe said. When they return next year, he expects to see more.

Any new administrative actions or legislation would likely see immediately challenge in the courts by groups like Lambda Legal or the American Civil Liberties Union.

Six states—Arizona, Idaho, Indiana, Mississippi, Missouri, and New Hampshire—have considered legislation to make gender-affirming care child abuse. Those efforts all failed.

Chilling Effect

The Texas courts “quickly and persuasively deciding the plaintiffs bringing charges need to be protected” could have a chilling effect on other states, said Lindsey Dawson, director for LGBTQ health policy at the Kaiser Family Foundation.

A Texas district court temporarily blocked the state directive, but that was then narrowed by the Texas Supreme Court to block only the investigation for the family that filed the complaint. Another district court issued a temporary restraining order to stop any investigations of any members of PFLAG. PFLAG describes itself as the largest organization advocating for LGBTQ+ people and their families.

Texas Assistant Attorney General Courtney Corbello has argued the suits should be thrown out because the plaintiffs don’t have legal standing.

If the litigation blocking the Texas directive was in federal court, other states would likely wait to see what happens, said Matthew Cortland, a senior resident fellow at Data for Progress working on disability and health care.

However, because it’s staying in state court, Cortland expects to see other states, particularly Florida, follow suit.

Shannon Minter, legal director for the National Center for Lesbian Rights, hoped the court decisions in Texas would be a deterrent for other states, but “the forces driving this are highly political, so I don’t know that they will be,” he said.

Abbott’s strategy has been popular in polling, Schweppe said, and he “wouldn’t be shocked to see another Republican governor” try a similar approach if their legislature won’t pass a law.

States often iterate on one another’s legislation, so advocates expect that the Texas policy could morph as other states try to get it past their courts.

“What Abbott has done is a novel strategy of weaponizing the state’s child protection apparatus against trans kids and their families,” Cortland said.

Other states won’t carbon copy exactly what Texas did because of the temporary restraining order, but they will likely try to do it in different ways, said Fran Hutchins, executive director at the Equality Federation.

Schweppe said he expects to see more advertisements and political discussions about gender-affirming care in the coming year, and “that’s going to inject this into policy” to an intensity like abortion has seen.

Efforts to limit access to health care for transgender children are likely to continue and be an election issue in 2024, Topping said.

To contact the reporter on this story: Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com