It can be hard to keep up with the cruel and mean-spirited culture wars being waged by GOP lawmakers around the country, from unconstitutional abortion bans to laws prohibiting the teaching of truth about racism to gender-policing of high school sports. Texas has been leading the charge in these wars, adopting policies that neither comply with the federal Constitution nor enjoy support from a majority of its residents. Governor Greg Abbott’s recent directive ordering the child welfare agency to investigate all gender-affirming care for trans children as child abuse is a particularly cruel example of this.
A trial court in Texas has issued a temporary restraining order that prevents Abbott and his lackeys from acting on the order (Doe v. Abbott), and an appellate court has upheld this order. Although the trial court has not yet ruled on the merits of the challenge, it issued the restraining order based on the conclusion that there is a substantial likelihood the law will be found unconstitutional. In this column, I will discuss the American child welfare system and why Abbott’s attempt to misappropriate state child abuse law in this way is a gross violation of the U.S. Constitution and a complete rejection of the balance of power between the government and parents.
The Abbott-Paxton Tag Team
On February 22, 2022, Governor Abbott wrote a letter to the Commissioner of the Texas Department of Family and Protective Services (DFPS), the agency charged with implementing the state’s child welfare laws and protecting children from abuse. In the letter, Abbott stated, that gender-affirming care for trans children constitutes child abuse. This is “now confirmed.” He continued with the punchline: “I hereby direct your agency to conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas.” Abbott’s letter also recited the mandatory reporting requirements in the state’s child abuse law, which provides for criminal penalties on licensed professionals who deal with children for failing to report suspected child abuse.
The alleged support for Abbott’s statement about Texas child abuse law is a legal opinion issued by Ken Paxton, the state’s controversial (and indicted) attorney general, just four days before Abbott’s letter. Paxton’s opinion, in turn, makes generous use of smoke and mirrors to reach the conclusion that many types of gender-affirming care constitute child abuse under Texas law. Texas law says no such thing.
Paxton issues a legal opinion that has no basis in law; then Abbott cites the legal opinion as proof that the provision of gender-affirming care is child abuse. The one-two punch of the OAG’s opinion and governor’s directive was calculated to instill fear in parents and medical providers across the state. The threat was quite explicit: “seek or provide gender-affirming care to a trans child in this state, and we will use the power of the state’s child welfare system and the criminal justice system to punish you.” And indeed, several investigations were immediately launched, including one against an employee of DFPS who is raising a trans child. If Abbott’s directive were followed, DFPS offices around the state would start rounding up all the trans children who live here because Paxton’s opinion more or less concludes that it is child abuse to have a trans child.
This is a gross misuse of power for all kinds of reasons, but particularly so by a state that has already has proven itself unable to manage a safe child welfare system. Abbott and DFPS are defendants in a lawsuit that has lasted more than ten years over the state’s mismanagement of the foster care system and its failure to protect the children in its care. (A recent report found that 100 children have died while in Texas’s foster care system just since 2020.)
The Motives Behind the Men
Lest anyone be tempted to wonder whether Greg Abbott and Ken Paxton are acting out of any genuine concern for children, rest assured that their motivations are entirely impure. Greg Abbott’s campaign representative (Abbott is standing for re-election in 2022) Dave Carney casually confessed that the governor was pursuing this issue because “it’s a 75% to 80% winner” at the polls. Why not cruelly threaten some of the state’s most marginalized citizens in order to gin up the base? Ken Paxton, on the other hand, is motivated purely by animus against the LGBTQ community. Paxton is known to spend his days picking random fights on Twitter with transgender adults—people who have no connection to him personally, to the State of Texas, or to his work as the state’s attorney general. Twitter flagged one of his tweets, in which he deliberately misgendered Rachel Levine, a U.S. assistant health secretary and the nation’s highest ranking transgender official (as well as a four-star admiral). Responding to the news that Levine had been named “Woman of the Year” by USA Today, Paxton tweeted “Rachel Levine is a man.” This was deemed “hateful conduct” under Twitter’s community guidelines; Paxton was undeterred and repeated the statement in other contexts. He closed out the same week with a tweet congratulating the woman he deemed the “real winner” of an NCAA swimming event “because the person who came in ‘first’ is actually a man,” referring to Lia Thomas, a transgender swimmer at the University of Pennsylvania. Paxton is an immature and bigoted bully who throws around the threat of enormous legal consequences the way a younger bully would throw sand in other children’s eyes just to watch them suffer. But the consequences of his misuse of his official power to torment trans children and their parents are far more harmful than the consequences of his hateful tweets.
Child, Parents, and the State: Who Decides?
At the center of this issue is whether parents have the right to decide how to raise a trans child, including the right to seek gender-affirming care of various sorts. The answer is clearly yes, but a broader understanding of our legal system helps explain why.
In ancient Rome, a father had unfettered power over his children—he could buy, sell, trade, or even kill them, more or less at will. The state had absolutely no power. In Plato’s Republic, children were to be removed from their parents at birth, to be raised by the state—which would have all the power. No parent was “to know his own child, nor any child his parent.” The American system falls somewhere between these extremes.
The responsibility of caring for children—and the power to decide how to do it—lies in most cases with the parents. Parents share a little control with the state and a tiny bit with the children themselves. But the deference to parents is vast. In the American system, parents shoulder the burden of childrearing. They are required by state law to support their children—to make sure their basic needs are met. This might be satisfied through the direct provision of food, shelter, and medical care, or it might be satisfied through child support payments to another parent or adult who has custody of a child. The failure to support a child despite having the means to do so can result in civil and criminal consequences, including potentially serious ones.
Constitutional Protection for Parental Rights
Along with parental responsibility comes the freedom to make choices about virtually every aspect of raising children. Parents make crucial decisions about childrearing, including education, religion, health care, and discipline; they are in total control of day-to-day activities. This power is not simply a byproduct of the system that requires parents to care for their children. Rather, it is a right protected by the U.S. Constitution. The Due Process Clause of the Fourteenth Amendment has been interpreted to protect parental rights—indeed, this was the first of many rights recognized by the Supreme Court that relate to sex, reproduction, and family organization.
In Meyer v. Nebraska (1923), Nebraska law banned instruction in any foreign language before ninth grade. A school teacher was convicted for teaching German to a child. The state, said the Court, had a right to try to “foster a homogeneous people with American ideals,” but this was not strong enough to override the parents’ rights. Learning a foreign language was in no way harmful to children. The right to “liberty” mentioned in the Fourteenth Amendment included a sphere of personal and family life that the state was not to invade without a compelling reason. Two years later, the Court followed this up in Pierce v. Society of Sisters (1925); there, the Court struck down an Oregon law making attendance at public school compulsory for children between the ages of eight and sixteen. States were free to regulate schools, and the curriculum. But it could not force children to be educated only in government-run schools. In an oft-quoted line, the majority wrote that the child was “not the mere creature of the State”; and this law encroached on the parents’ rights to make basic educational decisions.
In a much more recent decision, Troxel v. Granville (2000), a plurality of the Court emphasized the breadth of power held by fit parents, who are presumed to act in their children’s best interests with every decision they make. Parents, it is said, have the right to the “care, custody, and control” of their children. This protects them from the interference of third parties but also from the government.
The State as “Super-Parent”
States do have some power to protect children from their own parents. States have a general police power that allows them to act to protect their citizens—this is what gives them the power to do things like maintain and enforce a criminal code. In addition, states have a special power known as parens patriae, which authorizes them to protect and promote the welfare of children—a group that is largely unable to protect themselves or meet their own needs to survive. The state operates as a kind of “super-parent,” which takes steps to ensure that parents are meeting their children’s basic needs. This is done primarily through the child welfare system, which empowers the state to investigate and take action to protect children from abuse and neglect. The state can remove children from the home only on strong evidence of harm or potential harm. This, at least, is the theory. The reality is that the child welfare system often operates to the disadvantage of the most vulnerable families and reflects many of the same biases that disadvantage some families in the first place. And sometimes, as is often the case in Texas, the state removes children from a bad situation only to put them in an even worse situation.
The Child Welfare System Today
Although much of family law is handled at the state level, the federal government entered the child welfare scene in the early twentieth century. A White House Conference on children was convened in 1909; the United States Children’s Bureau was established in 1912. The Social Security Act of 1935 provided small grants to states to set up child welfare agencies. The 1960s were another turning point, as child abuse began to be perceived as a serious and mounting social problem. Congress stepped up its intervention with the Child Abuse Prevention and Treatment Act in 1974. To qualify for federal money, states were required to set up procedures for reporting and investigating child abuse. That is the law that gave rise to the designation of “mandatory reporters” in every state—doctors, teachers, police officers, child care providers, and the like who have a legal duty to act on suspicions of child abuse or neglect. Progressively broader federal laws have turned the child welfare system into a kind of federal-state “hybrid.” The federal government now funds a substantial portion of the child welfare services provided by the states; it also dictates many aspects of the way those services are to be delivered and the outcomes they are supposed to produce.
The modern system for dealing with child abuse and neglect has two branches. The civil system protects children through temporary or permanent removal from their homes or other forms of less drastic intervention; the criminal system imposes punishment for the most serious forms of child abuse and neglect.
Because of various federal mandates, state abuse and neglect laws are all quite similar. All fifty state statutes define abuse to include physical or sexual abuse. Many also explicitly include emotional abuse; some include abandonment, or substance abuse by parents. They define the point at which the state’s interest is sufficient to justify overriding parental authority and establish procedures for intervening. “Neglect” is a parent’s failure to provide for the child’s basic needs, including food, clothing, shelter, education, and medical care (as we noted), despite the parent’s ability to meet these needs. A parent’s conduct (or omission) constitutes abuse or neglect if it causes actual or imminent physical, mental, or emotional harm. The practice, if not the law, is chaotic, and varies wildly from state to state and even from county to county.
Conflicts Between Parents and the State Over Medical Care
To understand the unconstitutional and unprecedented nature of the Abbott/Paxton anti-trans-care order, one must first understand the limits of state power. The state’s power extends only as far as the U.S. Constitution permits, and, in this case, it is clear that the order goes (far) beyond that line. The order, in short, says that all gender-affirming care for a child constitutes child abuse. But how much power do parents have to determine what medical care their children should receive?
Parents have a general obligation to get medical care for their children; but have broad discretion to make specific medical decisions for them. Moreover, parents are presumed to act in the best interests of their children. Except in an emergency, medical providers cannot act without informed consent, and minors, generally speaking, lack the ability to consent for themselves. As with other parental rights, however, state and federal law holds parents to certain minimum standards. Medical neglect is a form of child abuse. If neglect is suspected or proven, states can intervene to protect children either by overriding a parent’s refusal of consent or by imposing criminal liability if the neglect causes harm. But what constitutes “neglect”?
In one high-profile case, Joey Hofbauer was suffering from Hodgkin’s disease, a cancer of the lymph nodes, lethal if untreated. His parents passed up conventional treatment—radiation and chemotherapy—and chose, in 1977, to bring Joseph to Jamaica to be treated with Laetrile, a natural compound found in apricot pits, highly touted at the time. Did this constitute legal neglect? The courts said no. New York’s highest court accorded “great deference” to the parents’ choice of treatment, as long as they provided a treatment “recommended by their physician and which has not been totally rejected by all responsible medical authority.” Laetrile, alas, was proven useless as a treatment for cancer. It had “no therapeutic benefit” for cancer patients. Although thousands of people used laetrile, the vast majority of them died. It did not work for Joey, either; he died at age ten. The outcome in this case reflects how very robust parental rights are, even in matters of life and death. Joey’s parents had the right to decide how to reject the conventional medical treatment and listen to a doctor who recommended an alternative one with little or no reason to believe it would work.
Many cases that include allegations of medical neglect involve parental religious beliefs, such as the refusal by Jehovah’s Witnesses to allow their children to accept blood transfusions. Although religion is not a foolproof defense, courts typically give parents wide latitude to refuse medical treatment for their children unless the consequences might be fatal. By drawing the line in this way, states side with parents in many cases in which the child who is deprived of (or forced to endure) medical treatment might nonetheless suffer lifelong harm from those decisions. This is true even in cases in which both the child and the state object to the parent’s medical decision-making.
In short, our system gives parents broad discretion to make medical decisions for their children, even when those decisions turn out to be bad ones. The Abbott/Paxton order claims that the provision of gender-affirming care, categorically, constitutes child abuse. Our system does not allow this type of grand pronouncement about medical care provided by licensed professionals and consistent with professional standards. A state cannot simply decide that a particular type of medical treatment constitutes child abuse because it is politically opposed to it. Such a broad definition that is detached from medical standards of care or any other evidence that it is harmful either in general or to a particular child is an infringement on the right of parents to decide what is best for their children.
There is certainly no evidence that gender-affirming care is always harmful to a trans child, and, as the trial court judge noted in Doe v. Abbott, there are many cases in which the denial of gender-affirming care will be harmful, even life-threatening given the high rates of anxiety, depression, and suicide experienced by trans children.
Although people may imagine that children who suffer maltreatment or neglect in their homes are made better off by state intervention, that is often not the case. Children often languish in foster homes that are poorly supervised; sometimes the child welfare agency can’t find a place for them at all once removed from their parents. Texas is among the worst states in this regard. Children are sometimes removed only to be left to sleep in child welfare offices because the state has nowhere else for them to go. Nationwide, more than half a million children live in foster care. Moreover, children can be removed on an emergency basis—before the parents have a chance to defend themselves and before the state is asked to prove the legitimacy of its actions in court.
Even when operated by people with the best of intentions, the child welfare system is fraught. It is hard for an outsider to determine whether a child is genuinely in harm’s way under a parent’s care—and even harder to assess whether the child’s life will be made better or worse by the state’s intervention. These concerns are obviously aggravated when the motivation for intervention is based in ideology rather than in child well-being.
With a little history under our belt, it is easier to see how absurd the Abbott/Paxton directive truly is. It deviates from the underlying purpose of the child welfare system in order to punish parents for their choices about how to raise a transgender child. And it does so in a way that is clearly unconstitutional.