By Rossanna Howard, Partner, and Allison Shelton, Partner, Brown & Fortunato
Gender-affirming medical care has been the subject of several recent initiatives and proceedings in Texas, including an opinion from the Texas Attorney General and a letter from Governor Greg Abbott to the Texas Department of Family and Protective Services (DFPS). Most recently, on March 21, 2022, the Third Court of Appeals in Austin enjoined DFPS from acting on the Governor’s written directive that “gender-transitioning procedures” be investigated.
On February 22, 2022, Governor Abbott issued a letter to DFPS Commissioner, Jaime Masters, which declared that “a number of so-called ‘sex change’ procedures constitute child abuse.” The Governor’s letter directed DFPS to investigate “any reported instances of these abusive procedures” and “to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures.” Likewise, the letter called for the investigation of licensed facilities that perform 
such procedures. Moreover, the letter indicated that “licensed professionals . . . including doctors, nurses, and teachers” could be subject to “criminal penalties for failure to report such child abuse.”
The Governor’s letter to DFPS was based on Texas Attorney General (AG) Opinion KP-0401. Ken Paxton issued the Opinion on February 18, 2022, in response to a question from the Chair of the Texas House Committee on General Investigating. Specifically, the AG Opinion addressed “whether the performance of certain medical and chemical procedures on children – several of which have the effect of sterilization – constitute child abuse.” Ultimately, AG Paxton concluded that these procedures when performed on children can constitute child abuse under Texas law. Procedures covered by the AG Opinion include, but are not limited to, the administration, prescription, and dispensing of “(1) puberty-suppression or puberty-blocking drugs; (2) supraphysiologic doses of testosterone to females; and (3) supraphysiologic doses of estrogen to males.” Based on the AG Opinion, Governor Abbott directed DFPS to investigate any reported instances of such procedures in Texas.
On March 1, 2022, a lawsuit was filed against Governor Abbott, DFPS, and Commissioner Masters on behalf of a minor child who is transgender, the child’s parents, and a psychologist who treats transgender patients. The lawsuit sought, among other things, a temporary injunction to prevent DFPS from investigating families with transgender children pending the review and decision on other issues identified in the lawsuit.
A district court in Travis County granted the temporary injunction on March 11, 2022. The temporary injunction applies statewide and prevents DFPS from acting on the Governor’s directive and the AG’s opinion. The injunction restrains the Governor and DFPS from investigating reports on alleged child abuse “where the only grounds for the purported abuse or neglect are either the facilitation or provision of gender-affirming medical treatment or the fact that minors are transgender, gender transitioning, or receiving or being prescribed gender-affirming medical treatment.” Further, the injunction restrains the Governor and DFPS from “imposing reporting requirements on persons . . . who are aware of others who facilitate or provide gender-affirming care to transgender minors.”
Governor Abbott, Commissioner Masters, and DFPS appealed the temporary injunction. However, their appeal was not successful. On March 21, 2022, the Court of Appeals for the Third District at Austin upheld the temporary injunction to “maintain the status quo and preserve the rights of all parties” during the pendency of the lawsuit. Thereafter, the Governor, DFPS, and its Commissioner filed a Petition for Writ of Mandamus with the Texas Supreme Court to challenge the appellate court’s ruling and the injunction. As of April 4, 2022, the petition is pending review by the Texas Supreme Court.
So long as the temporary injunction is in place, healthcare providers are not under any current obligation to report transgender children and their families to DFPS. That said, healthcare providers must continue to comply with their legal duty to report suspected abuse to DFPS. The law states that licensed professionals with “reasonable cause to believe that the child has been abused” are required to report such abuse or neglect within 48 hours. Abuse is defined broadly to include “mental or emotional injury to a child that results in an observable and material impairment in the child’s, growth, development, or psychological functioning” and “causing or permitting a child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning.”
While the courts are hashing out the legalities of the Governor’s directive, healthcare providers must do what they have always done, which is to prioritize the care of patients. And, unless and until the law changes to define “abuse” to include specific situations or scenarios, healthcare providers should examine their internal policies, procedures, and standards for determining under what circumstances to make reports to DFPS and educate their staff on these procedures.