Advocates urge Biden administration to protect trans kids in Texas

Adelyn, a 13-year-old transgender girl living in Texas, told the Texas Tribune that she is scared of being separated from her mother after Texas Gov. Greg Abbott (R) and Attorney General Ken Paxton (R) said gender-affirming care is child abuse and supported the reporting to protective services of families who are providing such care to their children. Paxton said, “It is important to note that anyone who has ‘a reasonable cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report.'”

There are steps the Biden administration could take to assist these families, civil rights and LGBTQ advocates say.

For the past year, Texas officials and lawmakers have been ramping up efforts to stigmatize and end gender-affirming care for trans kids, which has been shown to improve their mental health. Texas lawmakers introduced bills in 2021 that would have defined gender-affirming care as child abuse and stopped doctors who provide such care from being covered by liability insurance policies. The bills failed. In August, Abbott asked the Texas Department of Family and Protective Services to look into whether transition-related surgery for minors was child abuse.

But the political attacks came to a head this week when Paxton wrote an opinion, dated Feb. 18, that concluded that gender-affirming care is “child abuse” when provided to minors.

Paxton wrote that puberty blockers, for example, could cause “mental or emotional injury” to a child. Paxton and Abbott also include gender-affirming surgeries in their opinions even though such procedures are rare for people under the age of majority in their state.

In 2019, the American Academy of Child and Adolescent Psychiatry said, “Blocking access to timely care has been shown to increase youths’ risk for suicidal ideation and other negative mental health outcomes.” 

While an opinion issued by a Texas attorney general “cannot create new provisions in the law or correct unintended, undesirable effects of the law,” according to an official Texas website, on Feb. 22 Abbott directed the commissioner of the Texas Department of Family and Protective Services, Jaime Masters, that all of forms of this health care, including puberty blockers and hormone treatments, must be reported to his agency as child abuse by licensed professionals who have contact with children, including physicians, nurses, and teachers, adding, “There are similar reporting requirements and criminal penalties for members of the general public” who fail to report such care.

Although the Human Rights Campaign, an LGBTQ advocacy group, and the American Civil Liberties Union say that this isn’t a legally binding directive and doesn’t have the same force as a law, they acknowledge that it can still do damage if individuals report the families of trans kids as a result. According to the Texas Tribune, the Department of Family and Protective Services said that so far it has received three reports of child abuse “meeting the description in the AG opinion and Governor’s directive.” 

Chase Strangio, deputy director for transgender justice at the ACLU’s LGBTQ and HIV Project, said during a press call on Feb. 24, “People will be living in a climate of fear.” Strangio said that the opinion and letter would be particularly harmful to Black, Indigenous, and immigrant families, who are under increased surveillance by the child welfare system.

Texan Kimberly Shappley, who is the mother of an 11-year-old trans girl named Kai, told reporters during an ACLU press call the same day that she’s interviewing for jobs outside the state. But she made it clear that moving isn’t a real solution to the problems she and her family face because anti-trans legislation is everywhere.

“Of course I’ve been thinking about leaving Texas,” she said. “But right now, I’m in communication with a family that went through the bathroom bill fight with us in Texas, and they fled Texas because of the legislation that just kept coming and now they’re in a state that has a ton of anti-trans legislation coming against them. Where would you like us to go? Literally the whole United States is on fire with anti-trans legislation.”

And Kai Shappley told journalists that she likes her current school.

“The teachers I have are amazing. The principal is amazing. Everybody is amazing. I have a whole bunch of friends,” she said.

President Joe Biden has spoken out against state anti-trans legislation in the past year. In his first joint address to Congress in April 2021, he said, “To all transgender Americans watching at home, especially the young people. You’re so brave. I want you to know your president has your back.” The Biden administration has rolled back many of the Trump administration’s anti-trans policies or stopped them from going into effect, such as a trans military ban and a proposed regulation that would have gutted nondiscrimination protections for unhoused trans people.

Assistant White House press secretary Kevin Munoz said in a statement to the American Independent Foundation, “The Texas Attorney General’s attack on loving parents who seek medical care for their transgender children is dangerous to the health of kids in Texas and part of a much larger trend of conservative officials cynically attacking LGBTQI+ youth to score political points … And no parent should face the agony of a politician standing in the way of accessing life-saving care for their child.”

White House press secretary Jen Psaki said on Feb. 24, “There are efforts in some states, not just Texas, but also Florida and unfortunately others, designed to target and attack the kids who need support the most, LGBTQI+ students who are already vulnerable to bullying and violence just for being themselves.” She also mentioned statements that the White House has made on Florida’s anti-LGBTQ education bill, which passed the Florida House last week. “We have the same concerns about these type of actions we’re seeing in Texas,” she said. 

Strangio said there’s still more the Biden administration can do to fight these actions in Texas and prevent families from being punished for providing gender-affirming care to their kids.

“I think they should always be doing more and I think they aren’t doing enough. What we can say and ask for is on each metric, to see more aggressive action taken,” Strangio said.

Biden could speak out on the issue more frequently, he explained: “Are we going to hear about a plan? Are we going to hear about those attending the State of the Union making it clear that they really are in solidarity with trans people?”

According to the ACLU of Texas, the opinion and letter have no legal effect. It released a statement on Feb. 23 explaining, “Paxton’s opinion is not legally binding, and it remains up to the courts to interpret Texas laws and the Constitution. Moreover, DFPS cannot remove any child from their parents or guardians without a court order. No court here in Texas or anywhere in the country has ever found that gender-affirming care can be considered child abuse.” 

Strangio also said, “We understand that there are constraints when it comes to litigation but we could see a lot more in terms of using the power they have as the White House and using their authority through federal agencies, to make sure that there are compliance investigations and that information is going out to recipients of federal funding within Texas. So there’s a lot of things they could do and hopefully we are going to see more of that.”

Cathryn Oakley, state legislative director and senior counsel at the Human Rights Campaign, said on Thursday, “We want [the Biden administration’s] continued attention, and perhaps there will be a moment that will require intervention, but again, enforcement of this and what it looks like is still down the road.”

Published with permission of The American Independent Foundation.