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TX Trans Health Care 'Abuse' Law Gets First Court Challenge

Please explain how treatment approved by every major medical organization in the country is 'abuse.'

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Ken Paxton

Last week Texas Attorney General Ken Paxton teamed up with the state’s Governor Gregg Abbott to “protect” transgender kids by defining their medical care as “child abuse.”

A similar measure failed to pass the state senate last year. So in a crass tweet referring to “chopping off boys’ and girls’ private parts” and in an Advisory Opinion threatening to take away their health care, lock up their parents and doctors, and force them to choose between their health and potentially winding up in foster care, Paxton laid out his plan to “help” trans kids in Texas. Abbott promptly ordered all state agencies to implement Paxton’s directive, and, with the stroke of a pen, every parent and medical provider caring for a transgender child in the state became a child abuse suspect.

The first case challenging the law has already been filed in the District Court of Travis County, and it’s a doozy. The pseudonymous plaintiffs are John and Jane Doe, parents of Mary Doe, a 16-year old transgender girl, and Dr. Megan Mooney, a psychologist and mandatory reporter under the new directive.

Jane Doe is an employee of the Department of Family and Protective Services (DFPS), who asked her supervisors for clarification of the new policy on February 23. She was immediately placed on leave, and within 48 hours the Doe family was sitting in their living room with a child abuse investigator demanding to see Mary Doe’s medical records. The only basis for the investigation is the allegation that Mary is receiving “abusive” medical care, and if the charges are sustained, Jane will lose her job and with it the family’s health insurance.

“The Defendants have, without Constitutional or statutory authority, acted to create a new definition of ‘child abuse’ that singles out a subset of loving parents for scrutiny, investigation, and potential family separation,” they write in the complaint, which was filed with help from the ACLU and Lambda Legal. “Their actions caused terror and anxiety among transgender youth and their families across the Lone Star State and singled out transgender youth and their families for discrimination and harassment.”

Dr. Mooney’s practice is centered on transgender adolescents. As a mandatory reporter, she is now obliged to not only violate doctor-patient confidentiality, but to initiate child abuse reports against the families of her patients.

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Accusing the defendants of attempting to “legislate by press release,” the plaintiffs request a temporary restraining order, permanent injunction, and declaratory relief based on several Texas laws. The argue that the Texas Administrative Procedure Act requires several procedural steps, including a mandatory public comment period, before propounding a rule change.

“Neither the non-binding Paxton Opinion nor the Abbott Letter—both of which conflict with well-established medical standards of care—are a legitimate basis for the rule. The rule, therefore, is also arbitrary and capricious,” they write.

Furthermore, they insist that the rule “contravenes specific language in DFPS’s enabling statute” which specifies that DFPS “shall… provide family support and family preservation services that respect the fundamental right of parents to control the education and upbringing of their children.” This emphasis on the fundamental rights of parents to control their children’s upbringing is also enshrined in the state Constitution.

The power to define crimes rests solely with the legislature, which, again, refused to criminalize the very conduct at stake here. And so the plaintiffs argue that the AG, governor, and DFPS’s creation of a new crime out of whole cloth — i.e., child abuse via health care approved by every major medical association in the country — is ultra vires and in violation of separation of powers.

Finally the plaintiffs point to the Supreme Court’s holding in Bostock v. Clayton Cty., Georgia that “discrimination based on … transgender status necessarily entails discrimination based on sex.”

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As of last night, Paxton is in a runoff with George P. Bush, and Abbott is set to face off against Beto O’Rourke in November. So look for the nasty rhetoric about chopping off kids’ private parts to get worse before it gets better.

Doe v. Abbott [via ACLU]

Liz Dye lives in Baltimore where she writes about law and politics.

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