Texas AG declares pediatric gender-affirming procedures to be child abuse, legal opinion says

By Amir Vera and Ashley Killough, CNN

In a stunning legal opinion released publicly this week, Texas Attorney General Ken Paxton declared gender-affirming surgical procedures in children and prescribing drugs that affect puberty to be considered “child abuse,” a claim seen by many as an attack on transgender children.

“There is no doubt that these procedures are ‘abuse’ under Texas law, and thus must be halted,” Paxton said in a statement. “The Texas Department of Family and Protective Services (DFPS) has a responsibility to act accordingly. I’ll do everything I can to protect against those who take advantage of and harm young Texans.”

The American Academy of Pediatrics explained that hormone therapy and surgery are not the only methods of gender-affirming care available to children. These treatments are used to treat gender dysphoria, or the medical condition in which a person’s gender identity is different from the sex they were assigned at birth.

In response to the opinion, Gov. Greg Abbott directed DFPS Commissioner Jaime Masters “to conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas.”

It’s unclear how much legal standing the order and opinion will have. Brian Klosterboer, a staff attorney with the ACLU of Texas, told CNN that Paxton’s opinion and the directive by Abbott have no legal effect on Texas law.

“They don’t have the power to strip away or trample on the rights of transgender young people,” he said.

Both Paxton and Abbott are up for reelection this year, with voting in the Republican primary starting next week.

Paxton’s opinion states anyone — including parents, doctors or teachers — who has “reasonable cause” to believe such “abuse” is taking place must report it to authorities within 48 hours. Failure to do so “is a criminal offense,” the opinion states, citing Texas “family code.”

The “family code” of Texas law currently states adults who do not report abuse are subject to misdemeanor charges. Adults could face felony charges in some cases if the child has a disability or the adult in question tried to conceal the abuse.

Sarah Kate Ellis, CEO and president of the LGBTQ non-profit GLAAD, released a statement saying “deliberately attacking children and making life harder for them is shocking and un-American.”

“Every major medical association in the country supports healthcare for transgender youth, but Republican Gov. Abbott is ignoring experts on children’s issues to cruelly and viciously target transgender young people,” Ellis said. “Businesses that operate in Texas and host high-profile events like SXSW should contact Gov. Abbott and let him know how this will make doing business in the state more difficult and that the only result of his action will be unnecessary harm to trans people and parents of trans youth.”

In a statement to CNN, DFPS said the agency “will follow Texas law” as explained in Paxton’s opinion.

“At this time, there are no pending investigations of child abuse involving the procedures described in that opinion. If any such allegations are reported to us, they will be investigated under existing policies of Child Protective Investigations,” the agency’s statement read.

Klosterboer said a major concern he has with the opinion is that people will use it to report families who allow their children to receive gender-affirming health care.

“The worst effects we might see is it spreads fear and misinformation and turn people against each other,” Klosterboer said. “Even though this opinion and letter have no force of law, people could mistakenly think they have to report people.”

More reports of “false child abuse,” he said, put further strain on an agency such as DFPS.

Paxton compares procedures to genital mutilation

Pediatric gender-affirming procedures can cause “mental or emotional injury” in a child that can negatively affect the child’s “growth, development, or psychological functioning,” Paxton’s opinion argues.

Essentially, Paxton’s opinion likens gender-affirming procedures to sterilization and genital mutilation, citing the racial history of both terms.

“Historically weaponized against minorities, sterilization procedures have harmed many vulnerable populations, such as African Americans, female minors, the disabled, and others,” the opinion states.

Paxton emphasizes his point in the opinion by stating the procedures “infringe upon the fundamental human right to procreate.”

Klosterboer said there is no example of a court in Texas or elsewhere deciding that gender-affirming health care constitutes abuse.

And since so many major medical associations don’t classify gender-affirming health care as abuse, Klosterboer said he feels confident that a court would heed the guidance issued by the highest levels of these widely accepted medical associations.

Kate Murphy, senior policy associate for the non-profit Texans Care for Children, said in a statement it is unclear at this point what “Child Protective Services, prosecutors, and judges are going to do with this non-binding opinion from the Attorney General.”

“What is clear is that politicians should not be tearing apart loving families — and sending their kids into the foster care system — when parents provide recommended medical care that they believe is in the best interest of their child,” Murphy said.

Nothing in Paxton’s opinion or Abbott’s letter referenced foster care for children who have received a gender-affirming procedure.

Other state and local officials also responded to Paxton’s opinion. Harris County Attorney Christian D. Menefee released a statement saying Paxton and Abbott are “ignoring medical professionals and intentionally misrepresenting the law to the detriment of transgender children and their families.”

“My office will not participate in these bad faith political games. As the lawyers handling these cases, we owe a duty of candor to the courts about what the law really says,” Menefee said. “We’ll continue to follow the laws on the books — not General Paxton’s politically motivated and legally incorrect ‘opinion.'”

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CNN’s Justin Gamble contributed to this report.