Having failed to accomplish their goals legislatively, Republican officials in Texas are pulling out all the stops to target transgender kids and their families. According to Governor Gregg Abbott’s campaign strategist, the issue is “a 75, 80 percent winner,” so he and Attorney General Ken Paxton are racing to lock up parents and medical providers on the theory that gender affirming care for minors is actually child abuse.
After Paxton issued an Advisory Opinion two weeks ago, Abbott ordered all state agencies to begin initiating investigations of suspected “abusers” who provide medical care for trans kids in Texas. One of the first families caught up in this dragnet were “John and Jane Doe,” and their daughter “Mary Doe,” a 16-year-old transgender girl.
Jane Doe, an employee of the Texas Department of Family and Protective Services, one of the agencies charged with enforcing the policy, asked a supervisor for clarification on February 23. She immediately found herself placed on leave while her family was investigated for child abuse simply because their daughter receives gender affirming medical care under the treatment of a doctor.
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Aided by the ACLU and Lambda Legal, the Does, along with Dr. Megan Mooney, a psychologist who treats trans kids and is now a mandatory reporter under the new directive, sued to enjoin enforcement of the policy. And yesterday Travis County District Court Judge Amy Meachum granted them a temporary restraining order.
“From the facts set forth in Plaintiffs’ Petition, and the declarations attached thereto, the Court finds Plaintiffs will suffer irreparable injury unless Defendants are immediately restrained from enforcing the Governor’s letter and the DFPS statement, both issued February 22, 2022 and which make reference to and incorporate Attorney General Paxton’s Opinion No. KP-0401,” she wrote, noting that, in addition to the loss of Jane Doe’s job and with it the family’s health insurance, “Jane, John and Mary Doe face the imminent and ongoing deprivation of their constitutional rights, the potential loss of necessary medical care, and the stigma attached to being the subject of an unfounded child abuse investigation.”
Similarly, Dr. Mooney must choose between potential liability for failing to report so called “abuse” and possible “civil suit by patients for failing to treat them in accordance with professional standards and loss of licensure for failing to follow her professional ethics if she complies with Defendants’ orders and actions.”
And while the instant order applies only to these plaintiffs, the court set a hearing date for March 11 to determine whether the directive should be enjoined statewide.
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Meanwhile the Biden administration is threatening to do more than condemn Texas’s cruelty, although they’ve done that, too. HHS’s Office of Civil Rights issued a Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy will enforce the administration’s non-discrimination standards for federally subsidized state agencies and that “HIPAA prohibits disclosure of gender affirming care that is PHI without an individual’s consent except in limited circumstances.
As a law enforcement agency, OCR is investigating and, where appropriate, enforcing Section 1557 of the Affordable Care Act1 cases involving discrimination on the basis of sexual orientation and gender identity in accordance with all applicable law. This means that if people believe they have been discriminated against in a health program or activity that receives financial assistance from HHS, they can file a complaint.
Meanwhile, HHS’s Administration for Children and Families is reminding Title IV grant recipients that that the federal subsidy exists to help LGBTQI+ kids stay healthy with their families, not remove them and deny them care.
If the administration wants to play hard ball with federally funded healthcare dollars to fight this policy, they have the tools to do it. Next week we’ll find out if the ban is expanded statewide — at least until Texas’s high court gets its conservative hands on the ruling. We’ll have to wait until November to see if this abject cruelty is good politics or not.
Liz Dye lives in Baltimore where she writes about law and politics.