Will the courts step in to stop Gov. Greg Abbott’s anti-trans secret police?

by | Mar 11, 2022 | LGBTQ Rights, News

On Friday, a Travis County District Court will continue to hear litigation on Gov. Greg Abbott’s anti-trans orders to the Texas Department of Family and Protective Services (DFPS).

Until temporarily blocked by a judge, the department had been directed by Abbott and Texas Attorney General Ken Paxton to investigate gender-affirming healthcare for trans minors as “child abuse.” 

This includes gender reassignment surgeries that are rarely if ever used on children, and reversible puberty blockers and gender-affirming hormone therapy that most doctors recommend for trans patients who are minors.

The disturbing order has already ensnared an employee of DFPS who is being investigated for having a 16-year-old trans daughter. That employee is now being represented by the American Civil Liberties Union and the civil rights defense fund Lambda Legal in a major lawsuit where she is anonymously referred to as Jane Doe. 

The details in Jane Doe’s case show how the department has been transformed into a discriminatory political tool that can result in a visit from Child Protective Services (CPS).

“On February 23, 2022, following the issuance of the Paxton Opinion and the Abbott Letter, Jane communicated with her supervisor at DFPS to seek clarification of how the Abbott Letter would affect DFPS policy,” the lawsuit reads. “Such clarification was important for her family as well as to her ability to perform her job at DFPS.”

“That same day, and just mere hours later, Jane Doe was placed on leave from her employment because she has a transgender daughter with a medical need for treatment of gender dysphoria,” the lawsuit continues. “The next day, on the afternoon of February 24, 2022, Plaintiff Jane Doe was informed that her family would be investigated in accordance with Governor Abbott’s letter to determine if Jane Doe and John Doe had committed abuse by affirming their transgender daughter’s identity and obtaining the medically necessary health care that she needs.”

A day after that, the Doe family received a visit from Child Protective Services who interviewed the family and their daughter, and sought access to their child’s medical records.

Brian Klosterboer, an ACLU Texas attorney on the case, said it’s a traumatic and scary time for so many families in Texas.

“It’s really cruel and unimaginable that they’re weaponizing the Department of Family and Protective Services in this way to go after families simply for supporting their kids, taking their kids to a doctor, and following the advice of every single major medical association and decades of scientific research,” Klosterboer said.

Because child protection laws are so robust in Texas, Klosterboer said the department could target anyone. That could include lawmakers or activists that speak out on the issue, like the mother of a transgender son who reached out to have a dinner and dialogue with Texas Attorney General Ken Paxton, but is now under investigation by CPS herself. 

“They can go to court and initiate proceedings to remove a child from their family’s custody,” Klosterboer said. “They also can go to criminal court and prosecute people criminally for child abuse and neglect.”

Parents with trans children wouldn’t be the only ones facing the full force of Texas law.

“Every single person in Texas is a mandatory reporter of child abuse and neglect,” Klosterboer said. “There’s a penalty for not reporting — failure to report abuse and neglect — which can be a Class A misdemeanor under Texas law.” 

Likewise, false reporting is a state jail felony that could also end up impacting Texans. 

“It’s leading to vigilantism across the state, where now they’re trying to deputize everyone in the state into targeting this vulnerable group of people and it’s horrendous,” Klosterboer said.

There are nine investigations open as a result of Texas Attorney General Ken Paxton’s opinion, a spokesperson for DFPS told the Signal on Friday. 

“We have not and are not planning to create a new category for intakes on transgender children,” they said. “If an intake comes in, it will be put into one of the 5 existing statutory categories: physical abuse, emotional abuse, sexual abuse, physical neglect, medical neglect.”

It’s not the first time government has weaponized its agencies and powers to discriminate against LGBTQ people. Most famously the “Lavender Scare” of the 1950s, when the U.S. State Department’s ousted thousands of government employees who they suspected of being gay, which they deemed a national security risk during the McCarthy era.

“By November [1950], what some journalists derided as the ‘panic on the Potomac’ and some politicians defended as the ‘purge of the perverts’ resulted in the dismissal of nearly six hundred federal civil servants,” wrote historian David K. Johnson. “In the State Department partment alone, security officials boasted that on average they were firing one homosexual per day, more than double the rate for those suspected of political disloyalty.” 

“Originating as a partisan political weapon in the halls of Congress, it sparked a moral panic within mainstream American culture and became the basis for a federal government policy that lasted nearly twenty-five years and affected innumerable people’s lives,” Johnson wrote.

Somehow, that historical cruelty seems tame compared to the invasive beast Abbott and Paxton have unleashed on Texans, which threatens to tear apart families and criminally prosecute the parents of trans children.

The driving motivation behind Abbott’s order is not the protection of Texas children, but hate. In April, when Republican state Sen. Charles Perry tried to pass legislation identical to the ongoing order and opinion to DFPS, he compared gender-affirming healthcare to an attack on God. “We don’t have the right to be God when it comes to creation,” Perry said at the time. “We are a sinful state and we are reaping the consequences of it.”

That legislation has now been revived with Abbott’s order and Paxton’s opinion, something ACLU attorney Brian Klosterboer says is nonbinding and merely interpretive of Texas law. 

“They conflate surgeries, which are not happening to minors, they conflate that with puberty blockers and hormone treatment, which have long been established and are are very safe,” Klosterboer said, explaining that the lawsuit is focused on the governor and DFPS because they don’t have the power to rewrite or change Texas law.

“They don’t have the authority to define or decide what child abuse is,” Klosterboer said. “That’s already written into statute, and the courts are the ones who decide or interpret what that means.”

fernando@texassignal.com | + posts

Fernando covers Texas politics and government at the Texas Signal. Before joining the Signal, Fernando spent two years at the Houston Chronicle and previously interned at Houston’s NPR station News 88.7. He is a graduate of the University of Houston, Jack J. Valenti School of Communication, and enjoys reading, highlighting things, and arguing on social media. You can follow him on Twitter at @fernramirez93 or email at fernando@texassignal.com

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