In the span of just four days, Texas Attorney General Ken Paxton and Gov. Greg Abbott have outlawed gender-affirming health care for trans minors, ordering everyone to report this care to the state or face criminal prosecution.
How did Paxton and Abbott pull this off? The Texas Legislature considered bills banning gender-affirming care for children last year, but Republicans have not mustered enough support to pass it. So GOP state Rep. Matt Krause, a sponsor of the legislation, took a shortcut: He asked Paxton to declare that such treatment constitutes illegal child abuse under existing state law. (The Texas attorney general can provide “interpretations” of the law that are generally considered authoritative until overruled by another branch.) At the time, Krause was planning to challenge Paxton in the 2022 primary, and he clearly hoped to use trans children as a wedge issue. Had Paxton declined to ban gender treatments for minors, Krause would have accused him of shrinking from the culture wars.
Krause wound up dropping out of the attorney general’s race, but that didn’t stop Paxton from issuing his “interpretation” on Feb. 18: Virtually all gender-affirming care for people under 18, he announced, is already illegal in Texas. Paxton reached this conclusion by reading Texas’ child abuse statutes as broadly as possible. These laws, for instance, bar any action that may cause a child to suffer a physical, mental, or “emotional injury” that “results in an observable and material impairment in the child’s growth, development, or psychological functioning.” The use of puberty blockers and cross-sex hormones, as well as gender affirmation surgery, violate these prohibitions, Paxton asserted. And because some of these procedures may eventually result in infertility, he claimed, they also infringe on a child’s “constitutional right to procreate.”
It is, to put it mildly, ironic that Paxton would rely on an unwritten constitutional right to procreate, since this liberty derives from the same doctrine that protects abortion access—a doctrine he stridently disavows. More importantly, his condemnation of gender-affirming care as a physical or emotional “injury” defies the scientific and medical consensus. Every major medical association—including the American Medical Association, the American Psychiatric Association, and the American Academy of Pediatrics—supports gender-affirming treatment for trans youth. Extensive research shows that such health care dramatically improves minors’ mental health and overall well-being. Paxton’s opinion to the contrary rests on cruel, bigoted, and antiquated presumptions about gender that fly in the face of evidence-based medicine.
Just four days after receiving the attorney general’s report, Abbott issued a sweeping ban on all gender-related care for trans youth. The governor wrote that anyone who approves or performs this treatment has committed a criminal offense. Abbott has spent months proclaiming that parents have an absolute right to control their children, and Texas law already gives parents the right to consent to medical treatment for their kids. Now the governor has decided that he can strip parents of this most basic right when he personally disapproves of the treatment.
Abbott even went a step further, ordering the Texas Department of Family and Protective Services to “conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas.” He also ordered all “licensed professionals who have direct contact with children” to report instances of gender-affirming care for minors. Teachers, nurses, doctors, day care employees, and health care professionals must now inform the state if they believe a child is receiving such treatment. If they do not, Abbott noted, they may face criminal penalties under Texas’ reporting statute, including one year in jail.
Then the governor took a final step toward vigilante enforcement. Under state law, he pointed out, anyone with knowledge of child abuse must report it to the state. Anyone who fails to report this “abuse” faces criminal prosecution and, upon conviction, up to a year behind bars. Members of the “general public,” Paxton wrote, now have a legal duty to inform upon any parents who allow their children to undergo gender-affirming care, any medical professionals who provide such care, and any parents who authorize it. Here, the governor borrowed an idea from S.B. 8, the Texas abortion ban that deputizes bounty hunters to sue abortion providers and their “abettors” for $10,000 in state court. Republican lawmakers are increasingly deploying this tactic in their culture war, allowing individuals to sue schools that teach forbidden ideas or allow discussions of LGBTQ issues.
Texas’ trans children already came under attack in 2021 when the state banned them from playing on sports teams that match their gender identity. The latest assault on trans kids further threatens their safety and well-being by criminalizing the very care designed to support them. Anyone who lives in the state of Texas and who declines to tell state authorities about a child undergoing gender transition may be arrested, prosecuted, and jailed simply for saying nothing. State bureaucrats are now empowered to take trans children from their homes. Physicians specializing in trans health care could have their practices shut down. All this to outlaw health care that can literally save a child’s life. Transgender youth living in Texas do not need to be protected from their doctors. They need to be protected from their state.