AUSTIN (KXAN) — Gov. Greg Abbott said families and medical professionals should now face abuse investigations for pursuing or providing health care options intended for transgender children.
In a letter sent Tuesday, the governor directed the Texas Department of Family and Protective Services (DFPS) “to conduct prompt and thorough investigations of any reported instances of Texas children being subjected to abusive gender-transitioning procedures.” His letter stated doctors and nurses could face punishments for failing to report such care and mentioned that DFPS should look into parents who pursue it for their kids.
This directive from Abbott follows Attorney General Ken Paxton issuing a 13-page legal opinion on Feb. 18 in which he argued that certain gender-affirming “procedures and treatments…when performed on children, can legally constitute child abuse” under Texas Family Code. In a news release publicizing this opinion, Paxton said in a statement, “I’ll do everything I can to protect against those who take advantage of and harm young Texans.”
Weighing in now on this highly-politicized topic comes at a time when Paxton faces several challengers in the competitive Republican primary for attorney general. Early voting is now underway in that race, and Texas Republican leaders have made it a policy priority to enact restrictions on transgender people. For instance, a law passed by GOP lawmakers during the last legislative session went into effect in January that bans transgender student-athletes from competing in sports matching their gender identity.
Texas DFPS response
A spokesperson for DFPS said in a statement Tuesday afternoon that the agency “will follow Texas law as explained in Attorney General opinion KP-0401.”
The statement further read, “At this time, there are no pending investigations of child abuse involving the procedures described in that opinion. If any such allegations are reported to us, they will be investigated under existing policies of Child Protective Investigations.”
As attorney general, Paxton can issue opinions in which he shares written interpretations about existing law. However, his office’s website points out these opinions “cannot create new provisions in the law or correct unintended, undesirable effects of the law.”
Randy Erben, who teaches a class on Texas government at The University of Texas at Austin School of Law, explained that even though an attorney general’s opinion is “merely advisory,” it can be “pretty persuasive” for a state agency to follow.
“The state agency doesn’t have to follow the attorney general’s opinion,” Erben said, “but, as we’ve said in the past, it does have a persuasive effect on a state official.”
He pointed out a situation in 2015 when an attorney general’s opinion carried significant influence. During that legislative session, the attorney general issued an opinion after the Texas Legislative Board challenged several of Gov. Abbott’s line item vetoes in the state budget.
“The attorney general-issued opinion said that [Abbott] actually had the authority to issue these line item vetoes, and the line item vetoes went into effect and the comptroller did not release the funds,” Erben said.
“Had somebody brought a lawsuit against one of the state agencies seeking the funds that were line item vetoed, which has happened before,” he further explained, “a court could certainly overrule the attorney general’s opinion if the court felt in its discretion, that the attorney general’s opinion was erroneous.”
Erben speculated that “primary politics” played into Paxton issuing the opinion now about transgender children.
“This is obviously a popular position with the attorney general’s base, and he’s in a contested primary, as everybody knows,” Erben said. “But at the same time, he is statutorily required to issue these opinions within a certain period of time, so I’m sure that opinion was issued at the time it was issued in order to meet that statutory time requirement.”
Reaction from LGBTQ advocates
Advocates for the LGBTQ community in Texas denounced the governor’s letter and the attorney general’s written opinion.
Regarding the Paxton release in particular, Ricardo Martinez, the CEO of Equality Texas, described it as a continuation of what happened during the last legislative session.
“When we are okay attacking innocent children, we’re doing something really wrong,” he said.
He added that credible organizations like the American Academy of Pediatrics support providing health care to transgender children.
“Our position at Equality Texas has been and will continue to be that we stand with every major credible medical association in support of this care because we know it to be life saving,” Martinez said.
He’s worried that this kind of discourse will lead to more bullying targeting LGBTQ youth, which he said has been increasing in Texas since last year. He said Equality Texas took in reports of more than 40 serious incidents during the last year, which includes everything from book removal in school libraries to physical assaults in schools.
“These are folks that just want support,” Martinez said. “They want to know how to fight back against these daily attacks, and we have to be there.”
Beto O’Rourke, the former Democratic Congressman now running for governor, posted a video on Twitter Wednesday seemingly responding to this latest controversy, which showed an exchange he had at a campaign event with a nonbinary student. O’Rourke wrote, “To every trans kid in Texas: You’re amazing. I’m proud of you. You belong right here in Texas, and I’ll fight for you to live freely as yourself and free from discrimination.”