What Texas Caregivers Should Know About Protecting Their Transgender Children
Trans youth and their caregivers are at risk in Texas after child welfare agencies were recently urged to investigate trans-affirming medical care as if it were abuse. In a letter to the state's Department of Family and Protective Services, Governor Greg Abbott said, "I hereby direct your agency to conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas." Brian Klosterboer, an attorney with the ACLU of Texas, says that the governor's statement, which does not actually change the law, is not enforceable as a directive. Neither is a similar opinion issued by Texas Attorney General Ken Paxton which preceded Governor Abbott's comments.
On March 11, 2022, a Texas judge halted the state's investigations, to which Paxton said he would appeal. The Biden administration has also made several statements about the protection his administration would give to caregivers and medical providers. And while that reassurance has helped some families relax a little, multiple families are currently under investigation, and some officials will choose to continue pursuing complaints filed against families.
The governor's comments specifically concern trans-affirming medical interventions such as hormone blockers or hormone replacement therapy. Because complainants might not know a child's medical status, even families with children who have not pursued medical transitions are still at risk for investigation. Parents and caregivers should prepare to protect themselves and their children in case their family is reported.
What To Expect During an Investigation
After a report is made, investigators will likely interview legal guardians and the children involved, review the criminal record of those accused of abuse or neglect, and examine the child's home and medical records. Review the resource provided by the state to learn more about proceedings.
Caregivers should become familiar with their state and federal rights. They maintain the right to know why they're being investigated and can advocate for themselves and their children by providing evidence to counter allegations. Allies who have a relationship with the child and family—including teachers, neighbors, and friends—can also offer interviews or other forms of testimony to advocate on the family's behalf.
Providing appropriate medical care for trans youth is still legal in Texas, but even if state laws change, Texas can't ignore federal precedents. "The Supreme Court has found that parents and guardians have a fundamental, constitutional right to control and guide the care and upbringing of their minors and children," says Klosterboer. "That means parents have a constitutional right and also a duty to provide medical care for their kids."
Klosterboer points out that trusted standards exist for establishing the informed consent of minors, which doctors and caregivers should document. This could include interviewing the child on camera about their identity and the care they receive or allowing them to explain what they understand about their treatment some other way. Prepare a packet of letters and documents from medical providers that prove your child is under professional medical supervision and consents to the treatment plan.
Officials can't remove medications, medical equipment, or personal effects (including binders, packers, or other sources of affirmation) without a court order. "A state or government can't strip away someone's healthcare or their property or privileges without due process," says Klosterboer."
Everyone has a right to counsel in a CPS proceeding, but there's no automatic lawyer assigned," he says. Contact a lawyer immediately if it feels that officials are exploiting their duties and report instances when a guardian's rights are ignored. Klosterboer said the Lambda Legal hotline is a good way to get quick support, including pro bono assistance.
"The attorney general opinion is completely non-binding," he underlines. "No court would have to follow it or give it any kind of deference, but it spreads fear and misinformation and prejudice against transgender youth."
The Impact on Accessing Care and Medications
The threat of investigations is already impacting access to care. Texas Children's Hospital has made the decision to stop treating trans youth. GENECIS, the only comprehensive healthcare clinic for trans youth in the entire state, closed its doors to new patients in November. This left kids who were on the waitlist for gender-affirming care in an even longer holding pattern, says Atticus Sandlin, who just turned 18 and is president of the youth advisory council at Youth First Resource Center, a queer-focused organization in Dallas. "That's the program we recommended to everyone," he says, "and we're still trying to figure out where to send people now."
"The newest thing is that other clinics are completely shutting down," leaving families feeling abandoned and without immediate alternatives for treatment, says Allie, who is using a pseudonym to ensure privacy for her own transgender child in Texas. "Providers are afraid that this letter is going to have repercussions on their licensing, so families requesting information about programs are being told, 'We don't do that anymore,'" she says.
Parents turning to telehealth have been frustrated that minors can't use the popular apps that specifically manage trans-affirming care, like Folx and Plume. Providers using Doctor On Demand can offer trans-affirming prescriptions to youth at their discretion and any primary care physician who treats minors—seen in-person or virtually—can prescribe hormone replacement therapy (HRT) and blockers. Those living close to the state's borders might choose out-of-state care and could travel to clinics less frequently by incorporating telehealth check-ins. State laws and practitioner preferences about this option vary, so call each provider to discuss possibilities.
"We've had a hard time finding mental health care that is appropriate–and what I mean by appropriate is that someone who is trained in caring for this demographic," says Stephanie, a parent raising a trans child in Dallas. "The ones I've found don't take insurance."
Protection in Schools
"Kids can take schools off the table as far as them being a safe haven at this point," Stephanie says. "Their peers really don't care. They're not offended by diversity in classrooms—but I'm afraid that some teachers and principals might be."
Trans identity is considered "private medical information by most courts and particularly under the Family Educational Rights and Privacy Act (FERPA)," says Klosterboer. "This means there is generally a right to privacy at school." He explained that FERPA prohibits forced disclosure, meaning that students are never required to disclose their trans identity to a teacher, administrator, nurse, or any other person at school. "If a school employee knows, they're not allowed to disclose that information to others," he adds.
Trans students are also now included under Title IX protections, a federal statute that prohibits discrimination based on sex and gender in federally-funded educational institutions, and students should know their rights. Although it's most commonly used in conversation about school sports, the statute protects students in the classroom, on school property, and at school-sanctioned events. Klosterboer says, "Young people have a constitutional right not to be discriminated against or harmed in any way."
Sandlin urges supporters to challenge their local districts to implement policies that explicitly protect and affirm trans youth. The district's Title IX coordinator is a resource who can help scrutinize current policies and practices.
Although Title IX requires that teachers use a student's correct pronouns and chosen name, Sandlin says that name changes should be reflected in electronic records systems to prevent transphobic teachers or unknowing substitutes from using deadnames and incorrect pronouns in class. This kind of update to procedures could protect trans kids from being outed, shielding their families from investigation.
School nurses could also reduce misinformation surrounding the use of blockers and HRT by providing queer-competent healthcare in classrooms, newsletters, and resources to parents and youth. "The only really clear resource I ever saw in any of my school's presentations [on health and sex education] was a suicide hotline at the end," Sandline says.
The Community Must Stick Together
Atticus wasn't allowed to use blockers or HRT as a minor because his parents didn't approve. "I felt stuck, like I couldn't move forward with anything in my life. I couldn't start my life as who I am until I felt comfortable in my own skin," he says. He worries that youth who can't access the care they need right now will struggle with mental health concerns like he did.
He highlights the toll it's taken to be a kid who has had to advocate on behalf of his community for necessary care. "I do kind of want to stay here and try to fight for change," he says, "but you know, at the same time, I do need to take care of myself now."
Ultimately, he believes that queer people will always find ways to creatively, persistently, and defiantly persist and thrive. He adds, "We'll stick together as a community and work to find solutions."