Citing case law, state code, and medical research, Paxton wrote that procedures administered for the purpose of gender transition, including puberty blockers, meet the standard for child abuse laid out in the Texas Family Code.
“Based on the analysis herein, each of the ‘sex change’ procedures and treatments enumerated above, when performed on children, can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code,” Paxton wrote.
To be classified as child abuse, an act must impair a child’s development, cause physical injury resulting in substantial harm, or involve a failure to prevent such an injury.
Additionally, Paxton’s opinion dwells at length on the right to procreation, giving special attention to procedures that have the effect of sterilizing the child. Drawing comparisons to the legal history of forced sterilization in America, Paxton notes that puberty-blocking drugs suppress the body’s production of estrogen or testosterone — an ‘off-label’ use of the drugs unapproved by the Food and Drug Administration — and thereby prevent the body from developing the capacity to have children.
“The novel trend of providing these elective sex changes to minors often has the effect of permanently sterilizing those minor children. While you refer to these procedures as ‘sex changes,’ it is important to note that it remains medically impossible to truly change the sex of an individual because this is determined biologically at conception,” Paxton wrote.
“No doctor can replace a fully functioning male sex organ with a fully functioning female sex organ (or vice versa). 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.”
Though an attorney general opinion is only meant to make an educated guess about how a court might rule on an issue, Paxton’s opinion could trigger real action.
His announcement breaks a long spell of inactivity between his office, the governor, and the legislature on the issue, with each party blaming the next for the stagnation.
The Legislature
Republican lawmakers in the state House and Senate filed several bills to ban child gender modification procedures during the regular session. However, none received a floor vote in the House.
The House Public Health Committee, chaired by Rep. Stephanie Klick (R-Fort Worth), was one major bottleneck. Only one of the bills made it through the committee.
That bill, authored by Rep. Matt Krause (R-Fort Worth), would have made authorized the Texas Medical Board to revoke the licenses of doctors that administer puberty blockers or perform surgeries meant to change a child’s sex.
However, it encountered another obstacle in the House Calendars Committee, which proved impassable. Chaired by Rep. Dustin Burrows (R-Lubbock), the committee set the bill too low on the House’s agenda to receive a vote before the session’s clock ran out.
Three special sessions followed the regular session, and Krause continued to file nearly identical bills. The bill he filed in the first special session had over 70 coauthors. However, during special sessions, the legislature can only act on issues that the governor approves.
The Governor
Abbott did not add the topic to the agenda. However, in a radio interview in July, Abbott said a legislative ban had no chance of passing the Texas House and instead promised “another solution that will address that problem that will be announced shortly.”
The Texas House has 150 members, meaning the bill Krause filed in the first special session with 70 coauthors and 4 authors would have had a strong chance at passage if the topic were on the agenda. However, Burrows, Klick, and other members that had withheld support from the same bill during the regular session signed on in the first special session when passage was legally impossible.
Not long afterward, Abbott sent a letter in August to the Texas Department of Family and Protective Services (DFPS), the agency that includes Child Protective Services, arguing that the agency should treat genital transition surgeries as abuse under existing law. DFPS Commissioner Jaime Masters agreed that same week.
Krause then filed his request on August 23 for the opinion that eventually came out today, asking if puberty blockers and non-genital surgeries like mastectomies might also be considered child abuse under existing law.
Paxton’s anticipated response became a linchpin.
The Attorney General
Masters told another lawmaker that the DFPS would wait on Paxton’s opinion before deciding whether to treat puberty blockers as abuse, even though that lawmaker contacted DFPS before Krause contacted Paxton. Abbott doubled down and said on December 1 that he had already collaborated with DFPS on a letter that would encompass puberty blockers and other surgeries but claimed that the agency couldn’t treat these procedures as abuse until Paxton issued his opinion.
Meanwhile, Paxton blamed the legislature for failing to pass a bill and sent a letter to DFPS insinuating that the agency already had the power to investigate these procedures.
Now that Paxton’s official opinion has been released, it may spur DFPS to begin investigating and prosecuting the administration of puberty blockers as child abuse, according to Abbott’s remarks on December 1.
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