What it means, what it doesn’t mean and what happens next
Families of trans youth — really, any family in the LGBTQIA+ community — are still reeling from Attorney General Ken Paxton’s non-binding opinion, released on Feb. 21. The opinion purports to claim that certain medical treatments and procedures constitute “child abuse” under Texas Law. Gov. Greg Abbott, on Feb. 22, sent a directive letter to the Department of Family Protective Services, the state agency that includes Child Protective Services, which specifically investigates allegations of child abuse and neglect. Abbott’s letter states, in part, “[t]o protect Texas children from abuse, DFPS and all other state agencies must follow the law as explained in OAG Opinion No. KP-0401.”
That would be Paxton’s opinion released the day before Abbott’s letter.
This is a brief overview of what the opinion does and does not mean, what happens next and what you can do if contacted by CPS.
What it does not mean: First, it is most important to clarify what the opinion is not. It is not the law, as Abbott claimed. Rather, it is Paxton’s subjective belief that certain treatments for trans children should be considered abuse under Texas law. Keyword: should.
This includes necessary counseling, gender-affirming therapy, issuance of prescriptions for puberty blockers or hormones, gender reassignment surgery, etc. But that does not mean that families must open their homes to investigation without proper legal representation. And it does not mean that medical professionals must disclose or report children they care for who seek gender-affirming treatment. And it absolutely does not mean that families are required to disclose private, protected health information to the state agencies investigating trans youth.
Paxton’s opinion is unfounded, not based in scientific fact and not a legally reasoned or enforceable order.
What it does mean: The opinion is, at best, unconscionable fearmongering. It is political propaganda at the expense of our trans youth and families. As most of the Dallas Voice readers know, fear is the Abbott/Paxton brand.
The opinion and Abbott’s directive were both issued just a week before the Texas Tuesday primary elections.
Coincidence? I think not. It is apparent that the timing was intentional to stir up the extreme right conservative base and to maximize votes on election day. Both Abbott and Paxton had many Republican contenders in the primary election and needed every vote, no matter the cost to Texas families! Specifically, the cost of any sense of stability or protection for our trans families in Texas.
The opinion means that the state is willing to waste limited governmental resources and taxpayer money to overreach into the private lives of Texans and investigate parents and medical health professionals — those who love and care for our precious trans youth. As if life as a trans child or parent weren’t difficult enough?
Bottom line: Abbott and Paxton have abandoned their party’s belief in a “small government” and have initiated an unconstitutional and intrusive witch hunt into the homes of Texas families. The nation is watching. And we must fight.
What happens next? On March 1, Lambda Legal, ACLU of Texas, and the American Civil Liberties Union filed Doe v. Abbott, a lawsuit against both Paxton and Abbott seeking a restraining order and injunction against DFPS from investigating families of trans children who seek medical treatment and gender-affirming care. On March 2, Judge Amy Meachum granted the temporary restraining order but kept its parameters to only those named plaintiffs in the lawsuit before the court and any potential mandatory reporters involved with those plaintiffs. The state improperly appealed Judge Meachum’s restraining order to the Third Court of Appeals, and the plaintiffs responded with an Emergency Motion to Dismiss Appeal. As of the time of publication of this article, the Court of Appeals has dismissed Paxton and Abbott’s appeal, allowing Judge Meachum to hear the plaintiffs’ application for a statewide temporary injunction on March 11. In any event, both sides likely intend to exhaust all appellate avenues, including up to the Supreme Court, after this week.
President Biden has released a statement in support of trans youth in Texas: “Children, their parents and their doctors should have the freedom to make the medical decisions that are best for each young person — without politicians getting in the way.” And that’s exactly what is happening in Texas: Politicians are stepping into the privacy of our homes and interrupting our fundamental right to parent.
Biden went on to say, “[i]n the United States of America, we respect the rights and dignity of all families.
Transgender children bring fulfillment to their parents [and] joy to their friends and are made in the image of God.
Affirming a transgender child’s identity is one of the best things a parent, teacher or doctor can do to help keep children from harm, and parents who love and affirm their children should be applauded and supported, not threated, investigated or stigmatized.”
Further, on March 2, the Department of Health and Human Services announced new measures in response to Paxton’s opinion, writing a memo to various child welfare agencies saying, “states should use their child welfare systems to advance safety and support for LGBTQI+ youth, which important, can include access to gender affirming care.” The HHS then issued an interpretation of the Health Insurance Portability and Accountability Act of 1996 to remind healthcare providers that they must keep protected health information private, despite the language of Paxton’s opinion and Abbott’s directive.
Lastly, Biden and the HHS are urging Texas citizens to file a complaint with their local Civil Rights Office if they are, in fact, investigated by CPS for providing gender-affirming treatment.
Fear not, there is help. If you have a CPS investigation opened against you, reach out to ACLU of Texas or Equality Texas or Lambda Legal via its Help Desk. They have compiled a list of excellent resources as well as a list of attorneys who are willing to step in with a moment’s notice to help, usually at reduced rate or entirely pro bono. I am one such attorney, as are my colleagues Karri Bertrand and Jordan Ezell at O’Neil Wysocki Law. I represent clients who have open investigations with CPS as well as consult with families in fear of such investigations who want to know their rights at the onset.
If CPS does contact you, try to delay the initial conversation as much as possible so that you can contact an attorney.
You obviously want to cooperate, but don’t waive any legal rights. You and your children are entitled to legal representation at any meeting or conversation with CPS. Further, do not hand over any documentation to CPS and do not sign an authorization to release any personal health info. Remember: That information is federally protected under HIPAA.
In other words, it is no one else’s business absent a court order!
It is important to inform your child or children that they do not have to speak to CPS without a lawyer, even if they are pulled out of their classroom at school. Children also can refuse to have their photograph taken by a CPS investigator.
While these investigations could have significant repercussions for you or your family, please know the legal community is stepping up to help and ensure that your families are protected and fully represented. We stand with our beautiful trans community, and we are here to fight for you.
*Disclaimer: nothing in this article constitutes legal advice and we recommend you get legal counsel immediately if you are contacted by CPS.
Kassie Hines is an attorney with O’Neil Wysocki Family Law. Contact her or other OWL attorneys, including Karri Bertrand and Jordan Ezell, at 972-852-8000.