AUSTIN, Texas — Fighting to keep his job in a heated GOP primary this year, Attorney General Ken Paxton repeatedly insisted that certain medical treatments for transgender youth abusive and illegal.
But in the relative calm of a court hearing, the state’s lawyers have said something quite different: Gender-affirming care for minors is not abuse in all cases, and the state won’t go after parents just because their trans child is receiving these treatments.
“Despite the frankly breathless media coverage of these important issues, there has been no call to investigate all trans youth or all youth undergoing these gender affirming procedures or therapies. That’s not the case,” Assistant Attorney General Ryan Kercher said in court last week in the first legal test for the state’s policy of investigating certain care for trans minors as abuse.
The conflicting statements are causing confusion among state workers, sowing fear among parents and kids — and raising questions about what the state’s new directive targeting gender-affirming treatments for trans youth means in practice.
While there may be conflicting interpretations, the immediate effects are already on display.
Since Gov. Greg Abbott told state agencies to investigate certain medical care as abuse last month, the state has opened nine investigations based on this directive. The parent of a transgender teenager is suing to block Abbott’s order. And the state’s largest children’s hospital has paused some gender-affirming therapies.
When the Biden administration offered guidance to families with trans children, Paxton sued. He did not parse words in criticizing gender-affirming care, describing it in a tweet as “a new radical form of child abuse.”
Myko Gedutis, organizing coordinator for the union that represents CPS caseworkers, said there is a dangerous lack of clarity from the state about when and how to complement the directives.
“There has been no meaningful communication to staff about what this directive means and serious questions have been left unanswered,” Gedutis said. “Real harm is already being done to families and children living with the fear of not knowing what to expect.”
In February, Paxton issued an opinion that said several methods for treating gender dysphoria in minors, such as puberty blockers and hormone therapies, “can legally constitute child abuse” under the state’s current laws. Gender dysphoria is the feeling of discomfort or distress that can occur in people who identify as a gender that is different from the gender or sex assigned at birth.
Attorney general opinions are nonbinding and no new law was passed to codify his opinion. But Abbott took the guidance and ran with it, sending a strongly worded letter to multiple state agencies directing them to investigate any reports that minors were receiving such treatments.
Abbott warned those required to report child abuse — “including doctors, nurses, and teachers” — could be criminally charged for failing to do so.
A week later, the state of Texas was sued by an unnamed DFPS employee who was put on leave and investigated for having a teenage trans daughter receiving medical care. Paxton’s agency went to court, arguing the public and media had misinterpreted the state’s actions.
Kercher, the assistant attorney general, said Paxton’s opinion intentionally used “couched” language. Gender affirming treatments are not necessarily or per se abusive, he added, but “that these treatments like virtually any other implement, could be used by somebody to harm a child.”
“It’s improper and incorrect” to say the opinion called on every young person undergoing “these kinds of treatments and procedures” to be investigated, he said.
Two days later, however, Paxton seemed to contradict his deputy’s interpretation in a tweet that left no room for such nuance.
“When performed on children, so-called sex-change procedures, puberty blockers, and hormone therapies are ‘abuse’ under Texas law. They’re illegal,” Paxton wrote. “Family courts and family-law government agencies must do their part to stop this.”
Paxton also appeared on conservative radio host Rick Roberts’ show that same week, and spoke about his own experience as a father of four.
“They need to have an opportunity to grow up and have some life experience and figure out what they want, not have a parent make the decision that is permanently affecting that kid maybe well beyond the parent’s lifetime,” he said. “It’s not right, and it really is child abuse.”
Paxton said Abbott’s order in particular was meant to tell agencies to “investigate any parent that was causing their child to either take puberty blockers or potentially have surgery for this.”
Abbott and Paxton are both up for reelection this year. Abbott won his GOP primary outright, besting conservative challengers who pushed him to take a more aggressive stance against transgender rights.
Paxton, however, has been pushed into a Republican runoff with Land Commissioner George P. Bush. In the runup to Election Day, Abbott’s campaign strategist said questioning transgender health care for minors could get Texas voters to back Republican candidates.
“That is a winning issue,” Dave Carney said on a call with reporters, according to multiple outlets. “Democrats across the country are out of touch.”
Neither Abbott nor Paxton responded to inquiries about which interpretation of the new directives they are following: All gender-affirming care is abuse and must be investigated, or only neglect or abuse masquerading as gender-affirming care is a problem.
The Department of Family and Protective Services also didn’t respond to this question.
The Dallas Morning News reached out to several organizations representing teachers, doctors and caseworkers to see what they are telling their members.
The Texas Medical Association, which represents more than 55,000 physicians and medical students, said they have not issued any specific guidance. But in a blog post on Monday, the association said it is in ongoing talks with state leaders over the directives regarding trans care.
The TMA also reiterated its opposition to the wholesale criminalization of gender-affirming care for trans youth, which is shared by the Texas Pediatric Society. These groups, as well as the American Medical Association, American Psychiatric Association and American Academy of Pediatrics, all support providing age-appropriate, individualized care for children experiencing gender dysphoria.
Like case workers, teachers also haven’t received any guidance from the state on implementing the directive Abbott ordered them to carry out, according to the Association of Texas Professional Educators.
Spokesperson Kate Johanns said Tuesday that none of their members have yet asked for advice. If they do, educators will be reminded that state law has not changed. The Texas Association of School Boards has received a few calls from districts asking if they need to update any child abuse reporting or training practices.
“At present, we are advising them to follow current law on the mandatory reporting of child abuse,” said Spokesperson Theresa Gage. “Should there be relevant developments, we will provide an update.”
Gedutis with the Texas State Employees Union said many CPS workers feel that asking them to report the parents of transgender children violates their ethics and professional standards.
“This directive should be abandoned immediately and publicly,” he said.
On Friday, a district court judge in Travis County will hold a hearing in the lawsuit filed by the parent of the transgender teenager. Last week, the judge granted the parent’s request that the state’s investigation into her child’s care be temporarily halted.
She could also decide to extend the stay statewide and halt all investigations into care for trans kids. Paxton said Thursday he will appeal to fight the stay at the Texas Supreme Court.
