By Jackie Gharapour Wernz, Melissa Mihalick and Kathryn Long

On February 18, 2022, Texas Attorney General Ken Paxton issued an opinion asserting that certain procedures and treatments for transgender children are child abuse under the Texas Family Code. The opinion, which does not carry the force of law, directed members of the public and licensed professionals to report procedures such as puberty blockers, hormone therapy, and gender reassignment surgery on children to the Texas Department of Family and Protective Services. The news has led to understandable questions from Texas educators about whether they, as mandated reporters, are required to report families that provide transgender youth with treatment based on the advice of their physician and the prevailing standards of care.

The confusion is particularly acute because reporting a transgender child’s family to DFPS for elective services while not reporting similarly-situated cisgender students could be discrimination under Title IX. The U.S. Department of Education’s Office for Civil Rights would also likely find that a school that reports transgender students to DFPS—especially in tandem with actions required by other state laws, such as Texas’s ban on children playing sports with a gender that does not match their gender assigned at birth—can create a “hostile environment” for transgender students under Title IX. Because of federal supremacy, schools cannot defend against an OCR complaint or federal lawsuit under Title IX by arguing that they were following state law.

Because of the substantial confusion and risk related to this issue, schools should work closely with legal counsel to develop a plan of action to handle mandated reporting and other issues involving LGBTQ+ students in schools. Training of mandatory reporters is essential. We offer more background, details, and analysis of the Texas AG Opinion below.