The Chilling Effects of the Texas Anti-Trans Directive

When Texas Governor Greg Abbott penned a letter directing state officials to investigate healthcare providers or parents who help transgender youth receive gender-affirming care, some believed his order would be ignored.

But as of this week, the Texas Department of Family and Protective Services (DFPS) has launched investigations into parents of trans minors for possible child abuse.

A DFPS employee who has a 16-year-old transgender child was placed on administrative leave last week and was later visited by an investigator from the agency, according to a lawsuit filed by the American Civil Liberties Union of Texas and Lambda Legal on Tuesday. The investigator sought medical records related to the child, but the family refused to voluntarily turn them over. The lawsuit also stated that other investigations are underway.

ACLU of Texas and Lambda Legal asked a Texas state court to block DFPS from investigating parents who work with medical professionals to provide their adolescent children with medically necessary gender-affirming care.

On March 3, the Travis County District Court granted a temporary restraining order to block DFPS from investigating the specific family named in the lawsuit. While the court limited the restraining order to the plaintiffs in the case, it also scheduled a hearing on March 11 to decide whether to block the governor, commissioner, and DFPS’s actions more broadly.

Despite current investigations, Abbott's letter is not legally binding—meaning it is still entirely legal to seek and provide gender-affirming care for trans youth in Texas, according to Alejandra Caraballo, JD, a clinical instructor at Harvard Law School who is a trans woman and previously worked as a staff attorney at the Transgender Legal Defense and Education Fund.

“The letter by Governor Abbott has no legal effect,” she told Verywell. “The Texas Department of Family and Protective Services cannot change the law or radically reinterpret it. They still need court approval to separate a child from their family, and no court in Texas, let alone anywhere in the country, has found gender-affirming care to be child abuse.”

Currently in Texas, the law requires all licensed professionals as well as anyone who has direct contact with children who may be subject to abuse to report it to the state, but Caraballo said strong protections are also in place to limit liability for these people.

To constitute neglect under Texas law, the state would have to prove that the lack of reporting is “blatant disregard” for the health and safety of a young person, she said, and that the inaction would result in harm or immediate danger to them.

What Does the Governor’s Directive Entail?

Some district county attorneys in the state have already openly refused to follow Abbott's directive, which warned of possible criminal penalties for anyone who interacts with trans children and fails to report that they’re receiving gender-affirming care. DAs representing at least five of Texas’s largest counties have stated that they will not treat gender-affirming care as child abuse.

Abbott's letter echoed an opinion drafted by Texas Attorney General Ken Paxton just days prior, which deemed gender-affirming care to be child abuse. Using the example of gender-affirming surgeries—procedures that are rarely done on minors—Paxton cited the potential for infertility as a reason to label it abuse.

Paxton also argued that providing hormone blockers and cross-sex hormones likewise constitutes child abuse, despite the fact that these (reversible) treatments have been supported by numerous major medical professional organizations including the American Medical Association, American Psychological Association, American Academy of Pediatricians, and more.

President Joe Biden issued a statement this week condemning Texas’s attack on trans youth, announcing that the Department of Health and Human Services (HHS) was taking several actions "to keep transgender children in Texas and their families safe—putting the state of Texas on notice that their discriminatory actions put children’s lives at risk."

These actions include releasing guidance to state child welfare agencies, reiterating that states should use their child welfare systems to advance safety and support for LGBTQ+ youth. The department also emphasized that healthcare providers are not required to disclose private patient information related to gender-affirming care. It clarified that denying health care based on gender identity is illegal, as is restricting healthcare providers from providing care because of a patient’s gender identity.

“Any individual or family in Texas who is being targeted by a child welfare investigation because of this discriminatory gubernatorial order is encouraged to contact our Office for Civil Rights to report their experience,” HHS Secretary Xavier Becerra said.

A Chilling Effect

Still, the threat of legal consequences and that fact that investigations are underway is more than enough to instill fear in trans youth, their parents and their healthcare providers, with some families even choosing to leave the state altogether.

“The real risk of these actions is the tremendous chilling effect on providers and parents of trans children,” Caraballo said. “Parents may delay seeking care and doctors may stop providing care out of fear from the letter and opinion despite having no actual legal effect. Most importantly, it has the effect of traumatizing trans kids themselves by creating uncertainty and doubt about their safety and care.”

According to Jerrica Kirkley, MD, a trans woman who is the chief medical officer and co-founder of Plume, a telehealth company that offers gender-affirming hormone replacement therapy for trans people in many states including Texas, there is ample evidence that demonstrates just how important gender affirming-care is for trans individuals.

She said calling gender-affirming care abuse is “absurd,” since it’s a healthcare service that’s delivered through a culturally-informed lens of knowledge about the gender diverse experience. At its core, it’s a type of care that prioritizes treating folks with respect as defined by the community.

The World Professional Association for Transgender Health (WPATH) Standards of Care provide widely accepted guidelines for healthcare professionals to support trans children in exploring their gender while determining the best course of action for each individual. This can mean simply discussing gender identity, offering primary and preventative care through that lens, or providing different therapies.

Kirkley said studies have shown that gender-affirming hormone therapy and gender-affirming surgery reduce “rates of depression and suicidality in both adults and youth.”

One recent study found that the receipt of gender-affirming care, including puberty blockers and gender-affirming hormones, was associated with 60% lower odds of moderate or severe depression and 73% lower odds of suicidality in transgender and non-binary individuals aged 13 to 20.

In 2020, 52% of all transgender and nonbinary young people in the U.S. seriously contemplated killing themselves, and Kirkley said taking away access to this much-needed care would be absolutely detrimental to the health of the trans community in Texas.

How Should Parents Proceed?

So what should Texas-based parents do when it comes to accessing gender-affirming care, or any health care at all, for their trans children going forward? Unfortunately, there’s no straightforward answer, but Kirkley recommended speaking with a trusted medical provider who understands the needs of your family about how your child can continue to access this life-saving care.

While some healthcare providers may choose to stop providing this care out of fear, Kirkley said, many will likely follow the advice of major medical associations, not politicians.

“You can still take your child and get gender-affirming care for them. But given the fact that there are active investigations, this may still be a risk,” Caraballo said, adding that the same may be true for health care of any kind right now but parents should still continue to get their children the care they need from medical professionals they feel they can trust.

While continuing to access gender-affirming care specifically, Caraballo said families may want to speak with an attorney or counsel to get official advice.

Of course not all families have the resources to be able to afford counsel, a fact that underscores how low-income families may be disproportionately impacted by this directive.

“Stay connected with local organizations like Lambda Legal, Trans Education Network of Texas or TENT, P Flag, the ACLU of Texas and others, and stay in contact to be able to be connected with resources in the event that anything does happen” she said. “But in the meantime, providing gender-affirming care is still legal in the state of Texas. Regardless of what the FPS does, regardless of what the governor says, it is still legal.”