The Texas state government is attempting to classify gender-affirming healthcare as child abuse.

Attorney General Paxton issued a nonbinding legal opinion in February that claimed gender-affirming healthcare constitutes child abuse. Governor Abbott followed that opinion this month by ordering the Texas Child Welfare Agency to investigate parents who provide such healthcare to their children. Texas Children’s Hospital has stopped providing hormone therapies for transgender youth because of the governor’s order.

The ACLU and Lambda Legal filed a lawsuit on behalf of some of the families. Federal District Judge Amy Clark Meachum issued an injunction blocking the state from investigating families with Transgender Children until the case is heard in July. Paxton filed an appeal to the injunction in the Third Circuit, but the Appellate Court has already dismissed the appeal.

What Does Texas Based Their Child Abuse Theories On?

Paxton’s non-binding opinion is premised on two ideas. First, the definition of child abuse is broad, but includes “criminal acts” that may include mental or emotional injury to a child and may include physical injury such as “female genital mutilation.” Second, the right to procreation and/or right from forced sterilization are a constitutional right that cannot be given away even by parental consent. Texas law recognizes a parent’s right to consent to a medical act on behalf of their child. However, the law does not recognize a right to unnecessary medical procedures and certainly doesn’t recognize a right to consent to illegal procedures. Legal consent can never be given to a forced sterilization. As far as Paxton is concerned, any efforts to “change” a child’s gender, including procedures to stop or inhibit a child’s puberty, is a form of forced sterilization.

Necessity of Transgender Procedures

The critical issue between Texas and the parents of transgender children is whether the procedures for sex change are medically necessary. Paxton’s opinion “does not address medically necessary procedures” such as testicular cancer. Paxton explicitly states in his opinion that procedures to “change” a child’s gender are not medically necessary.

However, the American Medical Association has taken the position that “Gender-affirming care is medically-necessary, evidence-based care that improves the physical and mental health of transgender and gender-diverse people.” These procedures do not change a child’s gender but “affirms” that the physical gender matches his or her mental state.

This fight is unlikely to end soon as two sides are entrenched into their positions. Either the state is protecting children from doctors and parents mutilating them or the state is prosecuting a minority group that doesn’t have the numbers to effectively fight back. Notably though, transgender persons can reproduce, so the argument that gender-affirming healthcare is a form of sterilization is flat-out wrong.

However, there are a few factors that could ease the issue for the kids. First, this issue should be decided on a case by case basis. Some children might very well have a deep psychological issue that can only be addressed through their procedures as they are growing up. Other children might be able to afford to wait until they are older to decide for themselves. This determination should be determined by the needs of each individual child rather than a single rigid ideology.

Second, it is unclear exactly what Paxton wants to do with the parents he is accusing of child abuse. To be sure, child abuse is a serious claim and presumably carries serious penalties. However, it seems counterintuitive to throw the parents in jail or remove the child from their custody in these situations. Parents of transgender children may honestly believe, or were honestly advised, that gender affirmation or gender change procedures, are the only solution to their child’s mental and emotional issues. It seems unfair to punish parents for earnestly wanting to help their child.

Finally, it seems overbroad to assume that all gender affirmation or gender change procedures would harm a child. Surgery on genitals would be a highly risky procedure on a child, but taking certain medications or counseling may not be. It would be more prudent to have medical doctors weigh on the issue rather than rely solely on attorneys to determine what a necessary medical procedural is or what kinds of procedure could harm a child.

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