Gender-Affirming Care and Reporting Requirements

On February 22, 2022, Texas Governor Greg Abbott issued a letter to Jaime Masters, Commissioner of the Texas Department of Family and Protective Services. In that letter, Governor Abbot asserted that certain medical procedures conducted on children for gender-transitioning constitute child abuse under the Texas Family Code. In his letter, Governor Abbott cites an opinion letter issued by Attorney General Ken Paxton in KP-0401. This memorandum aims to provide guidance regarding the impact of this letter on Texas schools and the child abuse reporting requirements of Texas educators.


Executive Summary:


Governor Abbott has no authority to interpret the definition of child abuse in the Texas Family Code or direct the Texas Department of Family and Protective Services (“DFPS”) to act according to his interpretation. Similarly, Attorney General Paxton’s opinion in KP-0401 is non-binding and does not have the force of law. Moreover, neither the Governor nor the Texas Attorney General play any role in enforcing child abuse reporting requirements. Local prosecutors and licensing agencies enforce such requirements.


Schools should continue to train employees to report suspected child abuse based on the definitions of child abuse and neglect in the Texas Family Code. Employees should be encouraged to report suspected child abuse if they have reasonable cause to suspect that child abuse has occurred or may occur. An employee who is aware that a child is receiving gender-affirming care but does not reasonably believe that the child is being subjected to mental, emotional, or physical injury has no obligation to report. Additionally, when employees do report suspected child abuse or neglect, they have no obligation to inform Texas schools that they have reported suspected child abuse. Such reports are confidential, and schools should not be involved in monitoring or enforcing reporting obligations.


Background:


In his letter, Governor Abbott directs DFPS to investigate reported instances of children being subjected to “elective procedures for gender transitioning, including reassignment surgeries that can cause sterilization, mastectomies, removals of otherwise healthy body parts, and administration of puberty-blocking drugs or supraphysiologic doses of testosterone or estrogen.” Governor Abbott’s letter further states that “DFPS and all other state agencies must follow the law as explained in OAG Opinion No. KP-0401.”


In KP-0401, Attorney General Paxton contends that gender-transitioning procedures can constitute child abuse when performed on minor children because they can meet the definition of child abuse under Texas Family Code sections 261.001(1)(A)-(D). Attorney General Paxton’s opinion argues that certain gender-transitioning procedures constitute child abuse because, in his opinion, they are not medically necessary and they can result in permanent sterilization, depriving a child of a fundamental right to procreate. Paxton notes that where a gender-based procedure “cannot result in sterilization, a court would have to go through the process of evaluating, on a case-by-case basis, whether that procedure violates any of the provisions of the Family Code—and whether the procedure or treatment poses a similar threat or likelihood of substantial physical and emotional harm.”


Governor Abbott does not cite any statute giving him the authority to reinterpret the provisions of the Texas Family Code or direct DFPS to act per his interpretation. Although Attorney General Paxton has the authority to issue opinion letters regarding questions of state law, his opinions are non-binding and do not have the force of law. Moreover, neither Governor Abbott nor Attorney General Paxton have the authority to enforce child abuse reporting requirements or prosecute an individual for a failure to report a child receiving gender-affirming care.


On March 11, 2022, in Doe v. Abbott, Judge Amy Clark Meachum entered a temporary injunction regarding Governor Abbott’s directive, finding that it was “ultra vires, beyond the scope of his authority, and unconstitutional.” Moreover, the judge found that the “improper rulemaking and implementation by Commissioner Masters and DFPS are similarly void.” Judge Meachum enjoined the state from “investigating reports in the State of Texas against any and all persons based solely on alleged child abuse by persons, providers, or organizations in facilitating or providing gender-affirming care to transgender minors where the only grounds for the purported abuse or neglect are either the facilitation or provision of gender-affirming medical treatment or the fact that the minors are transgender, gender transitioning, or receiving or being prescribed gender-affirming medical treatment, [] prosecuting or referring for prosecution such reports, and [] imposing reporting requirements on persons in the State of Texas who are aware of others who facilitate or provide gender-affirming care to transgender minors solely based on the fact that the minors are transgender, gender transitioning, or receiving or being prescribed gender-affirming medical treatment.” Although the State has already appealed this ruling and the injunction has been superseded (is not currently in effect), the Third Court reinstated the injunction on March 21, 2022.


1. The obligation to report suspected child abuse is triggered by a “reasonable cause” to believe a child has been or may be abused.


Educators are required to report suspected child abuse or neglect. Section 261.101(b) requires licensed professionals who have direct contact with students as part of their duties to “make a report not later than the 48th hour after” the professional has “reasonable cause” to believe that a child has been mor may be abused or neglected as defined in the Texas Family Code. Tex. Fam. Code § 261.101(b). Moreover, any member of the public who has “a reasonable cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report.” Tex. Fam. Code § 261.101(a).


A failure to report suspected child abuse or neglect may result in prosecution as a Class A misdemeanor or a state jail felony if it is shown that the individual intended to conceal the abuse or neglect. Tex. Fam. Code § 261.109. Additionally, a certified employee’s failure to report may result in disciplinary procedures by SBEC for a violation of the educator’s code of ethics. 19 Tex. Admin. Code § 247.2(1)(G) (“The educator shall comply with state regulations, written local school board policies, and other state and federal laws), (3)(B) (“The education shall not intentionally, knowingly, or recklessly treat a student or minor in a manner that adversely affects or endangers the learning, physical health, mental health, or safety of the student or minor.). Thus, an individual should make a report if he or she has reasonable cause to believe that a child has been or may be abused or neglected.

2. The duty to report rests with individuals, not school districts.


The duty to report suspected child abuse or neglect rests with the individual who suspects the abuse or neglect and cannot be delegated to another. Tex. Fam. Code § 261.101(b). Therefore, it is not the school but the individual employee who has the obligation to report if the employee has “reasonable cause” to believe that a child has been or may be abused or neglected. Additionally, reports of child abuse and the identity of the reporter are confidential. Tex. Fam. Code § 261.101(d), .106, .110, .201. A school employee has no obligation to inform the school that he or she has reported suspected child abuse or neglect. And a school district cannot require employees to disclose that they have made a report.


Because reports of suspected child abuse are confidential and the duty to report rests on the individual, schools do not play a role in monitoring or enforcing reporting requirements. Instead, schools must provide training to new employees on child abuse and neglect (including reporting requirements), annually distribute relevant policies to all staff, display a poster on each campus, and include relevant policies in the district improvement plan and the student handbook. Tex. Educ. Code § 38.0041-.0042, 19 Tex. Admin. Code § 61.1051(b)-(f). Schools should continue to train employees on child abuse definitions and reporting requirements as required by law. However, schools should not be involved in an individual employee’s decision to report.


3. Educators should consider the definition of abuse in the Texas Family Code and whether the conduct meets that definition.


In deciding whether to report, an individual should consider whether the conduct meets the definition of child abuse in the Texas Family Code. A child is any person under the age of 18 who is not and has not been married or who has not had the disabilities of minority removed. 40 Tex. Admin. Code § 707.605(a)(3). Child abuse under the Texas Family Code is defined to include “(A) mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding any accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; (D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child[.]”


Although Governor Abbott and Attorney General Paxton have opined that gender-transitioning procedures and medications may constitute child abuse under these sections, those opinions are not binding on individual employees. The Texas Family Code places the obligation to report on the individual. So those individuals must determine if they have reasonable cause to believe abuse has occurred or may occur. An employee should report if the employee reasonably suspects that a child is being subjected to “mental or emotional injury,” “physical injury that results in substantial harm to the child,” or “the genuine threat of substantial harm from physical injury to the child” or that a person has failed “to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child.” However, an employee has no obligation to report where the employee knows or suspects that a child is receiving gender-affirming care but does not have reasonable cause to believe that a child is suffering or may suffer a mental, emotional, or physical injury.


Blog post by Kristi Godden



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