FederalBiden Administration Issues Statements Against New Texas Directive to Treat Gender Transition as Child Abuse

Despite threats, the Biden administration is currently enjoined from disciplining doctors that refuse to perform transition procedures.
March 3, 2022
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Following decisions at the state level to treat gender transition procedures as abuse when performed on children, the Biden administration responded on March 2 with several statements aimed at Texas.

“Respected medical organizations have said that access to gender-affirming care for transgender children can benefit mental health, lower suicide rates, and improve other health outcomes,” President Joe Biden stated in a press release.

“Children, their parents, and their doctors should have the freedom to make the medical decisions that are best for each young person — without politicians getting in the way.”

In the same statement, Biden said the U.S. Department of Health and Human Services (HHS) “announced several actions to keep transgender children in Texas and their families safe.”

HHS Secretary Xavier Becerra released a concurrent statement to remind families that the Affordable Care Act prohibits discrimination on the basis of sex, a clause that the HHS interprets to include chosen gender identity.

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As a result, if a doctor were to report a family to the Texas Department of Family and Protective Services (DFPS) for seeking to medically transition their child, Becerra says that doctor could face the risk of punishment from HHS, including the loss of federal money.

“[F]ederally-funded covered entities restricting an individual’s ability to receive medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity likely violates Section 1557,” Becerra’s memo states.

“For example, if a parent and their child visit a doctor for a consultation regarding or to receive gender affirming care, and the doctor or other staff at the facility reports the parent to state authorities for seeking such care, that reporting may constitute violation of Section 1557 if the doctor or facility receives federal financial assistance.”

The New DFPS Directive

Texas law requires teachers, doctors, and other licensed officials to report child abuse to law enforcement, DFPS, or other authorities.

Thus, when Governor Greg Abbott directed DFPS to treat gender transition procedures as child abuse, teachers, counselors, doctors, and other licensed professionals immediately fell under a requirement to report families that have attempted to transition their children.

Abbott issued the new directive the day after Texas Attorney General Ken Paxton wrote in an official opinion that gender transition procedures — including puberty blockers, genital surgeries, and other cosmetic surgeries meant to aid transition — meet the standard for child abuse under existing Texas law.

The official attorney general opinion process was triggered by state Rep. Matt Krause (R-Fort Worth), one of the Texas House members who filed a bill that would have banned these procedures. Krause filed an opinion request in August concerning puberty blockers and other surgeries shortly after Abbott had directed the DFPS to treat genital transition surgeries as abuse in a letter that did not mention endocrine or cosmetic treatments.

Although there were other bills that would have classified all of these procedures as abuse in state law, Krause’s bill would have worked differently. Instead of targeting families, the bill would have targeted doctors, authorizing the Texas Medical Board to revoke the licenses of doctors that administer puberty blockers or perform transition surgeries for children. All of these bills died without receiving a floor vote in the Texas House.

When the legislature was considering these bills, lawmakers heard from medical professionals who gave conflicting testimonies on the efficacy of medical transition.

‘The Transgender Mandate’ in Obamacare

Originally, HHS promulgated the rule that interpreted laws against sex discrimination to apply to transgender procedures in 2016. The Trump administration later changed this rule, though it was effectively restored during the Biden administration after the Supreme Court interpreted federal laws against sex discrimination to include gender identity in Bostock v. Clayton County.

However, despite threats of action from the Biden administration, HHS is currently under a court order that blocks the department from disciplining doctors that refuse to perform transition procedures. Specifically, the injunction stops HHS from enforcing the rule against doctors “in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions, including by denying Federal financial assistance because of their failure to perform or provide insurance coverage for such procedures […].”

So, though Becerra recommended that people file complaints if they encounter doctors who refuse to perform transition procedures, the current injunction prevents the department from taking any enforcement action against those doctors.

Current Litigation

The case that resulted in the injunction against HHS’s “transgender mandate” is currently proceeding at the U.S. Court of Appeals for the Fifth Circuit after going through a federal district court based in Wichita Falls.

A DFPS employee sued the agency and Abbott in Travis County district court after Abbott’s directive was released. Judge Amy Clark Meachum blocked the DFPS investigation with a temporary restraining order yesterday, preventing DFPS from investigating the family of the teenage child.

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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.