A directive denying health care for transgender youth puts agencies at odds with evidence-based medicine.
In February, Texas Governor Greg Abbott directed state health agencies to treat gender-affirming care for transgender minors as child abuse under state law. Within days, the state placed an employee—the mother of a transgender teenager—on leave and referred her to Child Protective Services solely because she allowed her daughter to receive medically prescribed hormone therapy, an investigator allegedly explained.
But transgender children, their parents, and advocates of LGBTQ+ rights disagree that gender-affirming care is child abuse. Far from being abuse, experts say, such care is lifesaving and essential health care.
The number of state-level policies drafted to curb the ability of transgender minors to receive medical care that aligns with their gender identity is growing. Advocates note that these laws were created to regulate the autonomy of transgender children, prevent parents from raising their children as they wish, and undermine the expertise of doctors who recommend gender-affirming health care to minors who seek it.
But, unlike measures that have largely originated—and often failed to pass—in state legislatures, Governor Abbott’s directive uses a different branch of government to limit access to gender-affirming care: state agencies.
Governor Abbott’s directive targets only certain types of gender-affirming care. Gender-affirming care encompasses a number of medical and psychosocial health care decisions an individual can make to affirm their gender identity.
This model of care includes medical interventions, such as medications that block hormones related to puberty or surgical intervention. It also includes social interventions, such as accepting and encouraging children who explore using new names and pronouns and transferring minors to camps, sports leagues, and other gender-delineated activities that align with their gender identity.
Experts regard these medical decisions as important health care tools that can improve the wellbeing of transgender people who choose to undertake them.
In fact, studies show that transgender youth who have access to a spectrum of gender-affirming care options experience better overall health outcomes than their peers who desire but cannot access that care. Accordingly, professional groups, such as the American Academy of Pediatrics, largely endorse the use of gender-affirming care for transgender youth, citing potentially tragic consequences of forgoing care for minors who need it.
According to the Governor’s directive, surgical procedures and hormonal intervention are subject to investigation by the Texas Department of Family and Protective Services (DFPS)—and some professionals who fail to report parents of transgender children who receive those interventions may incur criminal penalties.
Policies that target transgender minors target both types of care. The latest policy by Governor Abbott directs state health agencies to curb the ability of transgender minors and their parents to make medical decisions. Other bills have undermined social interventions within gender-affirming care by, for example, excluding transgender children from sports or banning transgender students from using restrooms that align with their identities.
Other states have attempted to limit health autonomy for transgender minors. LGBTQ+ advocate groups noted that 2021 was a record-breaking year for anti-transgender legislation, and many of those bills focused on restricting medical care. Last year, state legislatures introduced at least 35 bills that sought to prohibit trans youth from being able to access gender-affirming medical care.
Of those legislatures, Arkansas’s became the first to successfully pass a bill to block transgender youth’s access to gender-affirming medical care. The Save Adolescents from Experimentation (SAFE) Act, the title of which suggests that gender-affirming medical care amounts to “experimentation,” rather than empirically studied medical intervention, bans doctors from providing medical care to transgender youth.
Shortly after the SAFE Act passed, a federal judge issued an injunction to prevent the law from going into effect in response to a lawsuit that claimed the bill violated transgender minors’ constitutional right to equal protection under the law.
But Governor Abbott’s directive, unlike those efforts, uses the authority of state agencies to limit medical care options for transgender youth. Now, the American Civil Liberties Union (ACLU) has filed suit against the state of Texas, seeking to block this attempt on the grounds that it violates state administrative law. A federal judge temporarily granted their request and recently issued an injunction that prohibits agencies from investigating parents further, pending the outcome of the ACLU’s lawsuit.
The ACLU alleges in their complaint that DFPS’s compliance with the governor’s directive violates the Texas Administrative Procedure Act because the agency did not follow mandatory procedural requirements, including “public notice, comment, and a reasoned justification for the rule.
The agency overstepped its authority by agreeing to enforce the governor’s interpretation of Texas law, the ACLU contends. Although agencies typically have some discretion in how they use their enforcement powers, the ACLU says that this policy so greatly broadened the scope of the agency’s enforcement that it constitutes an entirely new rule.
Rules that do not follow proper procedures, the ACLU argues, are invalid.
Moreover, the complaint alleges that DFPS contravenes its statutory purpose, which explicitly states the agency shall “respect the fundamental right of parents to control the education and upbringing of their children.”
Instead of helping families, the ACLU argues that investigating parents—not gender-affirming care—harms transgender minors. Gender-affirming care is a source of empowerment and self-fulfillment for many transgender youth.
As one transgender teenager allegedly explained, “it makes me feel who I truly am, and I don’t feel singled out for not being like other girls in school anymore.”