By: Sean Boyle
On February 22, 2022, Texas Governor Greg Abbott endorsed a legal opinion by Texas Attorney General (“A.G.”) Ken Paxton (hereinafter “the Opinion”) declaring that obtaining gender-affirming procedures for a minor child can be considered child abuse under chapter 261 of the Texas Family Code. Governor Abbott, in turn, directed the Texas Department of Family and Protective Services (“DFPS”) to investigate any allegations of parents consenting to their minor child’s gender-affirming procedures under DFPS’ responsibility to deter child abuse. While the Governor’s office claims this is a measure to protect children from abuse, the directive only serves to harm transgender minors by threatening criminal liability for their parents in consenting to medically approved treatments. The Opinion and Governor’s directive is agency overreach that unconstitutionally infringes on the parent-child relationship protected by the Fourteenth Amendment and should be considered an arbitrary and capricious agency action.
The Administrative Procedure Act (“APA”) is one of the primary Texas laws governing the actions and procedures of its state agencies. While there is no inherent right to judicial review of agency decisions absent specific legislative authority, judicial review can be triggered if an agency’s decision adversely affects a vested property right or constitutional right. Unless provided by an agency’s enabling statute, the APA provides substantial evidence as the standard of review, which requires that the court determine whether some reasonable basis exists in the record for the agency’s action. In a substantial evidence appeal, the reviewing court shall reverse or remand if the substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are in violation of constitutional or statutory provision.
An agency decision may be reversed, independent of whether there is substantial evidence in the record, if its decision is found to be arbitrary, capricious, or constitutes a clear abuse of discretion. An agency abuses its discretion if it failed to consider a factor the legislature directs it to consider, considers an irrelevant factor, or weighs only relevant factors but still reaches a completely unreasonable result. To satisfy the arbitrary and capricious standard, an agency must review the relevant data and articulate a satisfactory explanation for the action taken, including a rational connection between the facts found and the choice made. Courts can review whether the agency’s explanation for the decision adequately considered the relevant data and overturn the decision on a finding of a clear error of judgment.
On its face, the Opinion implicates the fundamental constitutional right of parents to make decisions made on the medical, psychological, and emotional care of their children. The United States Supreme Court has long recognized that parental freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. The Texas Supreme Court recognizes that the rights existing between parents and children have constitutional dimensions, calling the right to a parent-child relationship a “basic civil right of man”. Texas statutorily provides that parents are the conservators of their children and that conservators of a child have the exclusive rights to consent to medical and surgical treatment involving invasive procedures and to consent to psychiatric and psychological treatment.
In arguing that parents should not be allowed to consent to gender-affirming treatments for a minor, the Opinion primarily relies on two Texas cases that dealt with Munchausen syndrome by proxy to arrive at the conclusion that elective surgeries can be considered a form of child abuse. Munchausen syndrome by proxy (MSP), also known as factitious disorder imposed on another, is a mental illness and form of child abuse where a caretaker invents, exaggerates naturally occurring, or artificially induces symptoms of an illness to generate sympathy for themselves as a caretaker for a sick child. The first case cited by the Opinion is Williamson v. State, which found the defendant mother guilty of child abuse for fabricating, exaggerating, and inducing symptoms in her son resulting in two unnecessary surgeries when the boy was between five and six years old. The second case, State v. Austin, dealt with a defendant mother who forcibly injected her non-diabetic child with insulin. By tying parental consent to a children’s gender-affirming treatment to MSP, the Opinion effectively infers that a parent consenting to gender-affirming treatment for their minor suffers from a difficult mental illness and the trans child’s experiences or desire for treatment are nothing more than made up lies by the parents.
The Opinion also compares elective gender-affirming procedures to the act of forcible sterilization by the state to form the basis of arguing that parental consent for gender-affirming treatment is an unconstitutional violation of the right to procreate. The opinion invokes Skinner v. Oklahoma, the seminal Supreme Court case on forcible sterilization. In the case, the Supreme Court held that the state forcing a man to undergo a vasectomy as punishment for two theft convictions deprived the man of his personal liberty and right to procreation under the Fourteenth Amendment.
What the Opinion completely omits is any discussion of intent and force, which is critical to MSP cases and forcible sterilization cases. In Williamson and Austin, both defendants were found to have used deception and forced their children into unnecessary medical treatment. The Opinion does not differentiate between a child being forced to receive treatment compared to a minor asking for consent for treatment. The Opinion concludes that whether “motivated by [MSP] or otherwise, it is clear that unnecessary medical treatment inflicted on a child by a parent can constitute child abuse under the Family Code.” Conspicuously, the opinion focuses on the Texas Family Code and only once references the child abuse statutes under the Texas Penal Code. Section 22.04 defines injury to a child, which is considered a criminal offense if the individual intentionally, knowingly, recklessly, or with criminal negligence causes serious bodily or mental injury. While it is clear that MSP and forcible sterilization should be considered child abuse, the Opinion does not articulate situations beyond those that require the use of force or sterilization, stating the courts will have to go through the process of evaluating each treatment or procedure on a case-by-case basis to determine whether there was a violation of the Family Code.
A fundamental flaw haunting the Opinion is that it uses an unnecessarily broad definition of gender-affirming treatments to fit a narrative around the concept of sterilization. As such, the broad-brush approach appears to be a solution in search of a problem. Current medical guidance already advises against gender-affirming invasive surgeries until a child is eighteen precisely because of the impact to the potential for child-bearing. The prevailing guidance recommends against providing gender-affirming hormone treatment for children who have not entered and completed puberty. Furthermore, because of the potential risk of sterilization, the prevailing guidance is to not treat adolescents with gender-affirming hormones until after a multidisciplinary team has confirmed the persistence of gender dysphoria/gender incongruence and assessed that the minor possesses sufficient mental capacity to give informed consent – around the age of sixteen. Instead of focusing on individual procedures that do cause permanent sterilization, the opinion lumps all gender-affirming procedures together, even though most treatments recommended for minors do not cause sterilization or are not recommended without a thorough multidisciplinary evaluation. By incorporating a broad scope of procedures without the relevant facts and nuanced details, the Opinion only provides parents an “all or nothing” scenario by claiming all gender-affirming treatments are child abuse because of the risk for sterilization, and only allowing for procedures that may cause sterilization in urgent medical emergencies. By conflating genuine child abuse situations such as MSP with elective surgeries with proper consent, and by painting broadly to define all gender-affirming treatments as causing sterilization, the Opinion fails to credibly embrace the nuances of both the law and the science behind the procedures.
On March 11, Texas District Court Judge Amy Clark Meachum issued an injunction against Governor Abbott’s order based on a “substantial likelihood” that the order was beyond the scope of the Texas Governor’s authority and unconstitutional – which the State of Texas has since appealed. Retired Baylor law professor Ron Beal has also filed an amicus brief with Texas’ Third Court of Appeals, stating that the directive constitutes a “rule” under state law, which violates the state’s administrative law requirements for notice-and-comment rulemaking. Even if the directive is found to fall within the authority of the Governor and found to not be an agency rule requiring notice and comment, the directive still should fail on the grounds that it unconstitutionally infringes on parents’ fundamental right to make choices and decisions in regard to the health and care of their children. The Opinion fails to plausibly consider the relevant facts and nuances of the law and science surrounding gender-affirming treatments. As such, Texas’ directive to investigate parents for consenting to gender-affirming treatment for their minor children should be found to be an arbitrary, capricious, and an abuse of discretion, constituting an illegal agency action.
 See Op. Tex. Att’y Gen. No. KP-0401 1, 2 (2022) (stating Paxton’s opinion that gender-affirming treatments and procedures can constitute child abuse under Tex. Fam. Code §§ 261.001(1)(A)-(D).
 See Letter from Greg Abbott, Governor, State of Texas, to Jaime Masters, Commissioner, Texas Department of Family and Protective Services (Feb. 22, 2022).
 See id. (directing investigations by DFPS as part of its responsibility to protect children from abuse).
 See The Office of the Attorney General of Texas, Administrative Law Handbook, 1 (2020) (citing Tex. Gov’t Code §§ 2001.001-.902).
 See Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 404 (Tex. 2000); Burkhalter v. Tex. State Bd. of Med. Exam’rs, 918 S.W.2d 1, 3 (Tex. App. – Austin 1996).
 See Tex. Gov’t Code § 2001.174.
 See Tex. Gov’t Code § 2001.174(2).
 See 5 U.S.C. § 706(2)(A); McClelland v. Texas Health and Human Servs. Commission, 635 S.W.3d 410, 417 (Tex. App. – Houston 2021) (stating that Texas holds to the arbitrary and capricious standard).
 See McClelland, 635 S.W.3d at 417 (establishing Texas’ standards for arbitrary and capricious or abuse of discretion).
 See Motor Vehicle Manufacturers Ass’n v. State Farm Auto Mutual Insurance Co., 463 U.S. 29, 43 (1983) (citing Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962).
 See Motor Vehicle Manufacturers Ass’n, 463 U.S. at 43.
 See Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (stating the Fourteenth Amendment provides heightened protection against governmental interference with fundamental rights and liberty interests); Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (unequivocally affirming the fundamental right of parents to direct the care, custody, and control of their children).
 See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (characterizing parental right as a natural and essential right more valuable than even property rights).
 See Tex. Fam Code § 153.131(a) (establishing that it is Texas’ presumption that appointment of the parents of a child as joint managing conservators is in the best interest of the child); Tex. Fam Code §§ 153.132(2)-(3) (providing the right of conservators to consent to medical, surgical, and psychiatric treatments).
 See Op. Tex. Att’y Gen. No. KP-0401 at 11 (citing Williamson v. State and Austin v. State as precedent for finding consent to unnecessary surgery can constitute child abuse).
 See Factitious Disorder Imposed on Another, Cleveland Clinic,https://my.clevelandclinic.org/health/diseases/9834-factitious-disorder-imposed-on-another-fdia (last visited Mar. 23, 2022) (providing the definition of MSP).
 See Williamson v. State, 356 S.W.3d 1, 19-21 (Tex. App.-Houston [1st Dist.] 2010).
 See State v. Austin, 222 S.W.3d 801, 804 (Tex. App.– Austin 2007).
 See Op. Tex. Att’y Gen. No. KP-0401 at 6 (claiming that providing parental consent for gender-affirming procedures would violate a child’s constitutional right to procreation).
 See id.
 See Skinner v. Oklahoma, 316 U.S. 535, 537-38 (1942).
 See Williamson, 356 S.W.3d at 12 (noting the defendant in Williamson was found to have repeatedly lied to medical professionals and conducted a pattern of neglect and abuse of her three children for several years).
 See Op. Tex. Att’y Gen. No. KP-0401 at 8 (stating that when a procedure or treatment does not result in sterilization, the court will have to go through the process of evaluating whether the treatment or procedure violates the Family Code on a case-by-case basis).
 See Op. Tex. Att’y Gen. No. KP-0401 at 11.
 See Op. Tex. Att’y Gen. No. KP-0401 at 7-9 (confirming that in Williamsonthe Texas Court of Appeals ruled MSP that causes serious bodily injury to a child is considered injury to a child under Tex. Penal Code § 22.04).
 See Tex. Penal Code §§ 22.04(a)(1)-(3) (setting out the statutory definitions of child abuse under the Texas Penal Code).
 See Op. Tex. Att’y Gen. No. KP-0401 at 8 (leaving it to the courts to decide whether elective gender-affirming procedures not attributable to MSP, lack of consent, or forcible sterilization constitute child abuse).
 See Op. Tex. Att’y Gen. No. KP-0401 at 1 (enumerating the scope of treatments under the “sex-change procedures” umbrella to include invasive surgeries such as the removal of genitalia, the administration of treatments that include puberty-suppressing or puberty-blocking drugs, and the prescription of supraphysiologic doses hormones).
 See Wylie C. Hembree et al., Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline, 102 J. Clinical Endocrinology & Metabolism 3869, 3894 (2017) (stating that invasive procedures involving the removal of sexual organs is not recommended for individuals under eighteen).
 See id. at 3871 (recommending against puberty-blocking and gender-affirming hormone treatment for prepubescent children).
 See id. (recommending that peripubertal youths and older adolescents consult with an expert multidisciplinary team comprised of medical professionals and mental health professionals to manage gender-affirming treatment).
 See Op. Tex. Att’y Gen. No. KP-0401 at 1-2 (generalizing the procedures into a broad category for the purposes of the opinion).
 See Op. Tex. Att’y Gen. No. KP-0401 at 2 (stating that only in rare circumstances would a consenting to a procedure risking infertility not be considered child abuse, such as consenting to an orchiectomy for a minor with testicular cancer).
 See Alison Durkee, Texas Judge Blocks Transgender ‘Child Abuse’ Investigations, Forbes, Mar. 11, 2022, https://www.forbes.com/sites/alisondurkee/2022/03/11/texas-judge-blocks-transgender-child-abuse-investigations/?sh=eb36b907a2cf
 See Julián Aguilar, Texas Appeal of Ruling on Transgender Medical Care is ‘Waste of Time,’ Veteran Lawyer Says, Houston Public Media, Mar. 18, 2022, https://www.houstonpublicmedia.org/articles/news/health-science/2022/03/18/421481/texas-appeal-of-ruling-on-transgender-medical-care-is-waste-of-time-veteran-lawyer-says/