Texas could prosecute parents who allow their children to change their gender as child abusers, says its governor, Greg Abbott.
In a letter sent this week to the Department of Family and Protective Services, Abbott said the agency “is responsible for protecting children from abuse.” He warned that teachers, doctors, nurses, and others who don’t report alleged abuse could incur criminal penalties.
The governor was responding to a formal opinion drafted by the Texas Attorney-General Ken Paxton which creates a legal justification for this controversial step. “Opinions” do not have the force of law, but public officials are expected to follow them.
Transgenderism is a fashionable cause, even in a conservative state like Texas, and Abbott’s directive was spurned by some prosecutors.
“My office will not participate in these bad faith political games,” one district attorney declared in a statement. “As the lawyers handling these cases, we owe a duty of candor to the courts about what the law really says. We’ll continue to follow the laws on the books — not [Attorney] General Paxton’s politically motivated and legally incorrect ‘opinion.’”
Trans activist Chase Strangio, who handles transgender cases for the ACLU, tweeted that: “This is an absolute nightmare. But supporting your kid is NOT child abuse and families will be protected and defended as best we can and if we need to help you get out of Texas we will do that too. I am sorry this is the horrible world we live in.”
Most debates about treatments for trans kids revolve around their “lived experience of gender dysphoria”. Paxton’s opinion takes the argument in a different direction. “Sex change” procedures violate children’s constitutional right to procreation.
Medical treatment nearly always involves administering testosterone to girls and estrogen to boys, which may make them infertile. It is not a reversible cosmetic touch but a life-long change. After hormone treatment come mind-numbing surgical options – double mastectomies, castrations, penis removals, hysterectomies, vaginoplasties (surgically creating a vagina for a male), and phalloplasties (surgically creating a penis for a female). All of these have a risk of serious complications.
And, after all the medical intervention, there will be no “sex change”. “No doctor can replace a fully functioning male sex organ with a fully functioning female sex organ (or vice versa),” writes Paxton. “In reality, these ‘sex change’ procedures seek to destroy a fully functioning sex organ in order to cosmetically create the illusion of a sex change.”
But Paxton’s central argument is that these children are being denied their fundamental right to be able to procreate.
“Given the uniquely vulnerable nature of children, and the clear dangers of sterilization demonstrated throughout history, it is important to emphasize the crux of the question you present today— whether facilitating (parents/counselors) or conducting (doctors) medical procedures and treatments that could permanently deprive minor children of their constitutional right to procreate, or impair their ability to procreate, before those children have the legal capacity to consent to those procedures and treatments, constitutes child abuse.”
Can a child really give informed consent to sterilisation? In Texas, the age of majority is 18, but Medicaid sets the age of consent for sterilisation at 21 because minors are more susceptible to coercion.
Trans kids often say that they don’t mind losing their fertility because they are not interested in having children. This is clear evidence of their immaturity. Many women say the same thing, but then panic in their late 30s when their biological clock sounds an alarm.
The Attorney-General cites a precedent from a 1942 case decided by the US Supreme Court, Skinner v Oklahoma. The decision described sterilization as an indisputable wrong even for habitual criminals:
“The power to sterilize, if exercised, may have subtle, far reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”
And according to Texas law, the procedures involved in “transitioning” constitute child abuse. It’s hard to not to agree when the medical facts are clearly set out. “The Texas Family Code is clear—causing or permitting substantial harm to the child or the child’s growth and development is child abuse,” Paxton writes.
Courts have held in the past that surgical removal of body part can constitute a real injury to a child. Many of the procedures involved in sex reassignment surgery could be regarded as female genital mutilation – which is clearly banned.
The opinion was bitterly criticised in the media. “No court here in Texas or anywhere in the country has ever found that gender-affirming care can be considered child abuse,” said the American Civil Liberties Union of Texas in a statement on “gender-affirming care”. “The opinion released by Paxton cites highly partisan, outdated, and inaccurate information that ignores the consensus of every major medical association and the evidence-based and peer-reviewed standards of care.”