Recent debates on trans rights have focused on public restrooms and Ivy League swimming pools. But earlier this year, Texas attorney general Ken Paxton opened up a new battleground: the home.
In February, Paxton issued a non-binding legal opinion stating that transgender therapy for minor children constitutes child abuse. A few days later, the governor of Texas ordered the state’s Child Protective Services (CPS) to investigate families whose children are in transgender therapy.
To be clear, there has been no change in the law governing child abuse, nor will there be for at least a year, since the Texas Legislature is not currently in session and meets biennially.
Changing the definition of child abuse to sweep in transgender therapy, which had the effect of criminalizing something that was not criminal before, was predictably viewed by many as an excessive power grab by the executive branch—including, of course, the first few families to be investigated by Texas CPS.
One such family contacted the American Civil Liberties Union (ACLU), which took the case alongside Lambda Legal.
Fearing that children might soon be taken away from their parents, or worse, the attorneys immediately filed for an injunction—both on the interpretation and on the investigations themselves.
Initially, a state court in Austin found that the child abuse investigations did not conform with the law because they were not the product of actual legislative action, but rather a change in interpretation by state administrators.
Therefore, the CPS investigations were found to be unlawful, and the trial court appropriately issued an injunction. Texas appealed to a state appellate court, which also declined to remove the injunction. The attorney general then appealed to the Texas Supreme Court.
The battle has been launched, joined, and now enjoined.
Only a Pause
For now, CPS is not authorized to perform child abuse investigations of families whose children are in transgender therapy, but that could change at a moment’s notice. With so much uncertainty, it is impossible for any party to declare victory.
The AG’s non-binding legal opinion was released on Feb. 18, meaning that families whose children are in transgender therapy have spent nearly two months in limbo. Whatever the ultimate outcome, transgender therapy—whether puberty blockers or counseling—has now been filed officially into this most serious of crimes.
Paxton’s theory is that such therapy causes mental, physical, and/or emotional injury, fitting within very broad phrasing of the Texas criminal statutes on child abuse, even though scientific literature states that such therapy is reversible (i.e., incapable of producing permanent harm) and is in fact prescribed regularly for a number of situations other than transition.
To be clear, legislatures make laws; attorneys general are supposed to enforce them. But here we have active criminal enforcement born of a new interpretation of the existing law by the attorney general, and an immediate attempt to enforce it by the governor.
This is not how the law works, nor how it should work.
Rather, the legislature has the opportunity to pass laws. The executive then has the obligation to enforce them. In the absence of legislative action, Texas’ executives are not entitled to create laws by themselves.
Indeed, the legislature took up this very issue last year. But the proposal to expressly criminalize transgender therapy within the child abuse statute did not make it through the legislative process. The effect of this should be obvious: families whose children are in transgender therapy are not criminals.
The laws governing child abuse have not changed; only the politics have.
Omar Ochoa is an award-winning lawyer, certified public accountant, financial expert, and founder of Omar Ochoa Law Firm. He has served federal clerkships with two of the nation’s top judges – Judge Amul Thapar of Eastern District of Kentucky and Judge Raymond Kethledge of the United States Court of Appeals for the Sixth Circuit. He also made history as the first Latino editor in chief of the Texas Law Review.