Trans Rights are Human Rights: Texas Children and the Right to Gender-Affirming Treatment

Illustration by Bob Daemrich, Zuma Press, on NBC News

Jack Verner, Associate Member, University of Cincinnati Law Review

I. Introduction

On February 22, 2022, Texas Governor Greg Abbott ordered the state Department of Family and Protective Services (“DFPS”) to investigate as child abuse any cases where children received “gender-transitioning procedures.”[1] The order came the day after Texas Attorney General Ken Paxton issued a letter to state representative Matt Krause, opining that “sex change procedures” and treatments performed on children could “legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code.”[2]

Section II of this note surveys the legal and scientific background of gender-affirming procedures and civil liberties of Texas minors. Section III highlights two challenges to the Governor’s order. Section IV concludes with a recommendation for courts interpreting the legality of the order.

II. Background

The order incorporates the AG opinion letter (“Opinion KP-0401”) and directs DFPS to “follow the law as explained” therein.[3] Opinion KP-0401 asserts two fundamental claims. First, that sex change procedures,[4] when performed on minors, constitute impermissible infringement upon the fundamental human right to procreation since minors cannot consent to sterilization.[5] Secondly, that sex change procedures performed on minors causes certain injuries which constitute abuse under Chapter 261 of the Texas Family Code.[6]

Opinion KP-0401 posits that Supreme Court precedent establishing a constitutional right to procreation in cases such as Skinner v. Oklahoma,[7]combined with the absence of legislative authorization for parents to consent to gender affirming treatment on behalf of their children, amounts to a conclusion that “no avenue exists for a child to consent to or obtain consent for an elective procedure or treatment that causes sterilization.”[8] Conversely, opponents of the opinion and order point to a different constitutional right: that of equal protection under the law.[9] The Texas Constitution mirrors the U.S. Constitution in precluding discrimination based on sex.[10] Opponents of the opinion assert that since the opinion and order classify certain treatments as abuse basely solely as the sex and transgender status of the recipient, the opinion and order necessarily discriminate based on sex and transgender status, both of which infringe upon the Equal Protection Clause as interpreted in cases such as Bostock v. Clayton County Georgia.[11]

The order has attracted strong opposition from civil rights groups[12] and medical professional groups.[13] The American Civil Liberties Union (“ACLU”) and Lambda Legal sued Texas on behalf of an affected minor and won a temporary restraining order preventing the state and DFPS from investigating the minor’s family; the broader issue of whether the order is enforceable in other cases is set for future hearing.[14] Even government officials have pushed back against the order. The district attorneys from five of Texas’ largest counties issued a statement forewarning that they would not seek to enforce this order.[15] Further, the U.S. Department of Health and Human Services has issued a memo opining that “[a]ttempts to restrict, challenge, or falsely characterize this potentially lifesaving care [of gender affirming care for minors, when medically appropriate and necessary] as abuse is dangerous.”[16] Notably, transgender people, even minors, are at disproportionate risk of suffering from depression and suicidal thoughts.[17] Access to gender affirming treatment for transgender youth who request such treatment greatly decreases the risk of suicide in this demographic.[18]

III. Discussion

Because ensuring access to gender affirming care for minors is beneficial, not harmful, to minors, the order is unenforceable on grounds that it denies the Equal Protection rights of transgender minors and it compels DFPS to harm transgender minors, contravening its authorizing statute.

As a constitutional matter, the state of Texas simply cannot restrict or discourage healthcare on the basis of sex or transgender status. The justification proffered by the state does not sustain its own argument. First, the supposed concern that families and physicians conforming to well-supported medical treatment guidelines would lead to sterilization of minors without their consent is nonsensical; almost all of the treatments identified in the opinion and order are reversible and/or do not lead to sterilization.[19] Indeed, many of these treatments are sufficient at treating gender dysphoria that they actually make it less likely for a transgender person to seek surgical treatments which could be considered sterilizing later in life.[20] But even if the state did have a legitimate interest in preventing or discouraging these treatments (it does not), the method of enacting that interest impermissibly discriminates on the basis of sex and transgender status. As the Supreme Court holds, “is impossible to discriminate against a person for being … transgender without discriminating against that individual based on sex.”[21] As the Eastern District Court of Arkansas has articulate while striking down a similar policy, “[i]f the State’s health concerns were genuine, the State would prohibit these procedures for all patients under 18 regardless of gender identity.”[22] The order only calls for investigation into the cases of transgender minors, while entirely ignoring the cases of similarly situated minors receiving similar care. This order is therefore inherently discriminatory.

As a statutory matter, Opinion KP-0401 posits that DFPS has a legal duty to protect children from “abusive [sex change] procedures.”[23] This line of thought fails for two crucial reasons. First, the provisions of the Texas code which define abuse are clear that abuse requires some legally recognizable injury.[24] But it is flatly more harmful to deny children gender affirming treatment than to allow this treatment.[25] In no statute is DFPS authorized to carry out an order that would harm children. Second, the Texas code authorizing DFPS’s activity compels the agency to cooperate with the United States Department of Health and Human Services (“HHS”).[26] After Governor Abbott issued the order, HHS released a Notice and Guidance “unequivocally stating that gender affirming care for minors, when medically appropriate and necessary, improves their physical and mental health.”[27] The opinion’s definition of “medically necessary” is clearly contrary to the guidelines offered by HHS; that gender affirming care ought not be categorized as abuse and that “[c]ategorically refusing to provide treatment to an individual based on their gender identity is prohibited discrimination.”[28]

Opinion KP-0401 does disclaim “[t]his opinion does not address or apply to medically necessary procedures.”[29] While it is true that the state of Texas has “wide discretion to pass legislation in areas where there is medical and scientific uncertainty,”[30] the requisite uncertainty for Texas to conclude that gender affirming care constitutes abuse simply does not exist. The Attorney General’s proclamation that any of these cited procedures is “medically necessary” is at odds with the medical community’s widely accepted position that these procedures are medically necessary to treat gender dysphoria in minors.[31] In at least one instance, Opinion KP-0401 misinterprets its own medical research. The opinion’s Footnote 2 cites a report on certain side effects of gender affirming treatment in minors; but this report is designed as a heuristic tool to explain that certain side effects exist. The report does not quantity how many individuals are affected by these side effects, nor explain the magnitude or impact of these side effects.[32] Whereas, the medical community has assessed the risks of side effects of these treatments and overwhelmingly concluded that the side effects of treatment pale in comparison to the harms of gender dysphoria.[33]

IV. Conclusion

The order is unenforceable because it violates the right to Equal Protection of transgender minors and it compels the Department of Family and Protective Services to cause harm to transgender children, contravening its authorizing statute. Government officials and courts (especially the court hearing the case of Doe v. Abbott) should decline to enforce this order in any circumstance. Enforcement of the order increases the risk of suicide in trans youth; the Governor does not, and indeed, cannot, present any argument that possibly outweighs this fact.

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[1] Greg Abbott, Letter to Hon. Jaime Masters, Commissioner, Tex. Dep’t of Fam. & Protective Servs. (Feb. 22, 2022), https://gov.texas.gov/uploads/files/press/O-MastersJaime202202221358.pdf.

[2] TX Office of the Att’y General, Opinion Letter No. KP-0401 on Whether certain medical procedures performed on children constitute child abuse (Feb 21, 2022), https://texasattorneygeneral.gov/sites/default/files/global/KP-0401.pdf [hereinafter “Opinion Letter No. KP-0401”].

[3] Greg Abbott, Letter to Hon. Jaime Masters, Commissioner, Tex. Dep’t of Fam. & Protective Servs. (Feb. 22, 2022), https://gov.texas.gov/uploads/files/press/O-MastersJaime202202221358.pdf.

[4] The Order responds affirmatively to Rep. Matt Krasue’s letter identifying as sex-change procedures “(1) sterilization through castration, vasectomy, hysterectomy, oophorectomy, metoidioplasty, orchiectomy, penectomy, phalloplasty, and vaginoplasty; (2) mastectomies; and (3) removing from children otherwise healthy or non-diseased body part or tissue” and “providing, administering, prescribing, or dispensing drugs to children that induce transient or permanent infertility.” Opinion Letter No. KP-0401 at 1.

[5] Opinion Letter No. KP-0401, supra note 2, at 2.

[6] Id.

[7] Skinner v. Oklahoma, 316 U.S. 535 (1942).

[8] Opinion Letter No. KP-0401, supra note 2, at 8.

[9] Doe v. Abbott, D-1-GN-22-000977, at 170 (2022) (citing T.X. Const. art. I, § 3).

[10] Compare T.X. Const. art. I, § 3 with U.S. Const. Amend. XIV, Section I.

[11] Doe v. Abbott, D-1-GN-22-000977, at 170 (2022) (citing Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1747 (2020).

[12] See Henry Berg-Brousseau, Human Rights Campaign Condemns Anti-Equality Extremist Governor Greg Abbott and Attorney General Ken Paxton for Putting the Well-Being of Transgender Youth At Risk, Human Rights Campaign (Feb. 23, 2022), https://www.hrc.org/press-releases/human-rights-campaign-condemns-anti-equality-extremist-governor-greg-abbott-and-attorney-general-ken-paxton-for-putting-the-well-being-of-transgender-youth-at-risk; see also LULAC Condemns Anti-Trans Youth Texas Policy,  League of United Latin American Citizens, https://lulac.org/news/pr/LULAC_Condemns_Anti-Trans_Youth_Texas_Policy/ (last visited Mar. 3, 2022).

[13] Physicians Oppose Texas Efforts to Interfere in the Patient-Physician Relationship and Criminalize Gender-Affirming Care,American Psychiatric Association (Feb. 28, 2022), http://www.groupof6.org/dam/AAFP/documents/advocacy/prevention/equality/ST-G6-OpposingTexasCriminalizationGenderAffirmingCare-022822.pdf (Joint statement from the American Academy of Family Physicians, American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, American Osteopathic Association, and American Psychiatric Association).

[14] See Doe v. Abbott, D-1-GN-22-000977 (2022); see also Andrew DeMillo, Judge blocks Texas investigation of trans teen’s parents, AP News (Mar. 3, 2022), https://apnews.com/article/health-texas-lawsuits-greg-abbott-f07d1b13319f0a582e3eb9deeda9cf11.

[15] Claire Thornton, 5 Texas DAs defy Gov. Greg Abbott, won’t treat gender affirming care for trans youth as ‘child abuse’, U.S.A. Today (Feb. 24, 2022), https://www.usatoday.com/story/news/nation/2022/02/24/texas-order-trans-youth/6926395001/.

[16] U.S. Dep’t of Health and Human Services, Office for Civil Rights, HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy (Mar. 2, 2022).

[17] Jody L. Herman, Kathryn K. O’Neill, Suicide Risk and Prevention for Transgender People: Summary of Research Findings, UCLA Williams Institute (Sept. 2021), https://williamsinstitute.law.ucla.edu/publications/trans-suicide-risk-prevent-summary/.

[18]Amy E. Green, Jonah P. DeChants, Myeshia N. Price, Carrie K. Davis, Association of Gender-Affirming Hormone Therapy With Depression, Thoughts of Suicide, and Attempted Suicide Among Transgender and Nonbinary Youth, J. of Adolescent Health (Dec. 24, 2021), https://www.jahonline.org/article/S1054-139X(21)00568-1/fulltext#relatedArticles (findings “support a relationship between access to [gender affirming hormone therapy] and lower rates of depression and suicidality among transgender and nonbinary youth.”). Louis Bailey, Sonja J. Ellis, Jay McNeil, Suicide risk in the UK trans population and the role of gender transition in decreasing suicidal ideation and suicide attempt, 19 Mental Health Review Journal, No. 4, pp. 209-220 https://doi.org/10.1108/MHRJ-05-2014-0015 (supportive environment for social transition and timely access to gender reassignment, for those who required it, emerged as key protective factors [against suicidal ideation]).

[19] Endocrine Society condemns efforts to block access to medical care for transgender youth, The Endocrine Society, https://www.endocrine.org/news-and-advocacy/news-room/2021/endocrine-society-condemns-efforts-to-block-access-to-medical-care-for-transgender-youth#:~:text=When%20young%20children%20experience%20feelings,mental%20health%20support%2C%20as%20needed. (last visited Mar. 8, 2022).

[20] Notini, Earp, Gillam, McDougall, Savulescu, Telfer, and Pang, Forever young? The ethics of ongoing puberty suppression for non-binary adults, 46 Journal of Medical Ethics 11, 743-52 (ongoing puberty suppression… [m]ay prevent need for future gender-affirming surgeries); see also Gender Clinic Handout, Oregon Health & Science University, About Puberty Blockers (Sept. 2020) https://www.ohsu.edu/sites/default/files/2020-12/Gender-Clinic-Puberty-Blockers-Handout.pdf.

[21] Bostock v. Clayton Cty., 140 S. Ct. 1731, 1741.

[22] Brandt v. Rutledge, No. 4:21CV00450 JM, 2021 WL 3292057, at *11 (E.D. Ark. Aug. 2, 2021).

[23] Greg Abbott, Letter to Hon. Jaime Masters, Commissioner, Tex. Dep’t of Fam. & Protective Servs. (Feb. 22, 2022); citing TEX. FAM. CODE § 261.001(1)(A)-(D).

[24] TEX. FAM. CODE § 261.001(1)(A)-(M).

[25] See Green, DeChants, Price, and Davis, supra note 18; see also Bailey, Ellis, and McNeil, supra note 18.

[26] Tex. Hum. Res. Code § 40.002 (d).

[27] U.S. Dep’t of Health and Human Services, Office for Civil Rights, HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy, at 1 (Mar. 2, 2022).

[28] Id. at 2.

[29] Opinion Letter No. KP-0401, supra note 2, at 2 (emphasis added).

[30] Gonzales v. Carhart, 550 U.S. 124, 163 (2007).

[31] See Green, DeChants, Price, and Davis, supra note 18; see also Bailey, Ellis, and McNeil, supra note 18.

[32] See Opinion Letter No. KP-0401, supra note 2, at Note 2, citing Timothy Cavanaugh, M.D., Cross-Sex Hormone Therapy, FENWAY HEALTH (2015), https://www.lgbtqiahealtheducation.org/wp-content/uploads/Cross-Sex-Hormone-Therapy1.pdf.

[33] Stephen M. Rosenthal, Challenges in the care of transgender and gender-diverse youth: an endocrinologist’s view, 17 Nature Reviews Endocrinology 581 (2021), https://www.nature.com/articles/s41574-021-00535-9.