ACLU files lawsuit to block Texas from investigating parents of trans youth

The American Civil Liberties Union, ACLU of Texas, and Lambda Legal have filed a lawsuit and are asking a Texas state court to block the Texas Department of Family and Protective Services (DFPS) from investigating parents who work with medical professionals to provide their adolescent children with medically necessary gender-affirming care.

ACLU Texas says the lawsuit was filed on behalf of an employee of DFPS with a transgender child, her husband, and the teen herself. According to the complaint, the family has had an investigator already arrive at their house. The family has filed the lawsuit anonymously. 

"No family should have to fear being torn apart because they are supporting their trans child," said Adri Pérez, policy and advocacy strategist at the ACLU of Texas, in a news release.

Licensed psychologist Dr. Megan Mooney, who ACLU Texas says is considered a mandatory reporter under Texas law and cannot comply with the governor’s directive without harming her clients and violating her ethical obligations, is also a plaintiff in the suit.

The lawsuit names Governor Greg Abbott, DFPS Commissioners Jaime Masters, and DFPS as defendants. The lawsuit includes claims that these recent directives were issued without proper authority, in violation of the Texas Administrative Procedures Act, the separation of powers requirements of the Texas Constitution, and the constitutional rights of transgender youth and their parents.

Abbott recently directed state agencies to investigate gender-affirming care for transgender kids as child abuse. He directed the DFPS to investigate reported instances of "abusive gender-transitioning procedures" done on Texas children.

In a letter to DFPS, Abbott said the law "imposes a duty on DFPS to investigate the parents of children subjected to gender-transitioning procedures, and on other state agencies to investigate licensed facilities where such procedures may occur."

ACLU Texas says a court could rule as soon as Tuesday.

What does Abbott's letter mean for trans kids in Texas?

The letter states that it is "already against the law" to subject Texas children to certain gender-transitioning procedures, referencing Texas Attorney General Ken Paxton's recent formal opinion concluding that "performing certain ‘sex-change' procedures on children, and prescribing puberty-blockers to them, is 'child abuse’ under Texas law."

Both the letter and Paxton's opinion specifically cite section 261.001 (A-D) of the Texas Family Code to define these gender-affirming procedures as abuse:

  • Castration
  • Fabrication of a "penis" using tissue from other body parts
  • Fabrication of a "vagina" involving the removal of male sex organs
  • Prescription of puberty-suppressors and infertility-inducers
  • Mastectomies
  • Supraphysiologic doses of testosterone or estrogen

Abbott's letter also states that Texas law imposes reporting requirements on licensed professionals with direct contact with children, including teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

The Texas Family Code also imposes criminal penalties for failing to report abuse, including being charged with a class A misdemeanor, which is punishable by a fine up to $4,000 and/or one year in jail, or possibly even a state-jail felony, which is punishable by a fine of up to $10,000 and/or between six months and two years in jail.

In August 2021, Abbott had previously directed DFPS to issue a determination on whether gender reassignment surgery constituted as child abuse.

In a letter to the governor, Commissioner Jaime Masters determined that "genital mutation of a child through reassignment surgery" constitutes child abuse because it may cause "a genuine threat of substantial harm from physical injury to the child".

"Genital mutilation of a child through reassignment surgery is child abuse," reads Commissioner Masters' letter. "This surgical procedure physically alters a child’s genitalia for non-medical purposes potentially inflicting irreversible harm to children’s bodies."

In the letter, Commissioner Masters also concluded that:

  • Allegations involving "genital mutilation of a child through reassignment surgery" will be promptly and thoroughly investigated, and any appropriate actions will be taken.
  • Certain professionals who have cause to believe a child has been or may be abused must report that belief to DFPS within 48-hours after the professional first suspects the abuse
  • Failure to report this abuse is considered a Class A misdemeanor and punishable by up to one year in jail, a fine, or both. The intentional concealment of such abuse is a state jail felony

The letter also stated that gender reassignment surgery does not constitute abuse when medically necessary, outlining certain conditions for children:

  • Whose body parts have been affected by illness or trauma
  • Born with a medically verifiable genetic disorder of sex development, such as the presence of both ovarian and testicular tissue
  • Who do not have the normal sex chromosome structure for male or female as determined through genetic testing

Ricardo Martinez, CEO of Equality Texas, says he’s worried about the message it sends to transgender youth.

"I think this opinion is going to be devastating for LGBTQ youth," said Martinez. "I think a lot of the questions that parents are struggling with and ruminating about what's going to happen to my child in school when they don't have an affirming teacher, when they don't have an affirming administrator, when they have a social worker who thinks that they're supposed to, they're mandated to report to DSPs what happens? And there are a lot of question marks around this."

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