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.

The Texas AG Opinion

In the opinion, the Attorney General discusses whether a Texas court would likely find gender reassignment services and procedures to be child abuse under state law. The opinion points to four factors the AG believes a Texas court would consider when deciding the question: the fundamental right to procreation, the potential physical and emotional harm to the child, consent laws in Texas and across the country, and existing child abuse standards. The AG believes that these factors would lead a court to find that gender reassignment procedures and services are child abuse.

The opinion says mandated reporters must report “removing otherwise healthy or non-diseased body parts or tissues from children” to DFPS, including sterilization through castration, vasectomy, hysterectomy, oophorectomy, metoidioplasty, orchiectomy, penectomy, phalloplasty, vaginoplasty, and mastectomies. The AG’s list of reportable conduct also includes treatments that involve “providing, administering, prescribing, or dispensing drugs to children that induce transient or permanent infertility,” including puberty-suppressing or puberty-blocking drugs, supraphysiologic doses of testosterone to females, and supraphysiologic doses of estrogen to males.

The opinion says it does not apply to medically necessary procedures. It does not address guidance from all the major medical organizations—the American Medical Association, the American Academy of Pediatrics, and the American Psychological Association—that gender reassignment care is medically necessary.

What is the Effect on Texas Schools?

Texas educators are particularly concerned about how the AG opinion impacts their legal obligation to report child abuse. Texas law requires any person who suspects that a child has been abused or neglected to report the conduct to DFPS or law enforcement immediately. Professionals, including teachers and other licensed employees with direct contact with children at work, must report child abuse or neglect no later than the 48^th hour after learning of the suspected abuse or neglect. The State Board for Educator Certification (SBEC) may take action against an educator’s certification for failing to report to DFPS as required. The Superintendent or director of a school is required to notify SBEC if a certified professional fails to report to DFPS.

DFPS has stated that it will follow the AG opinion in cases in which gender reassignment procedures and services are reported. But that does not settle the question of whether Texas mandated reporters must report the conduct to DFPS in the first place.

It is unclear whether anyone would be subjected to criminal penalties for failing to report the conduct. Numerous prosecutors across Texas have also already said they will not prosecute parents of transgender children referred for this type of alleged child abuse. And of course, FERPA prohibits school employees from sharing student educational information unless authorized by the law and includes penalties for failure to comply.

More concerning are potential SBEC penalties, and confusion exists over whether administrators must report licensed employees to SBEC if the employee fails to report gender reassignment procedures and services to DFPS. We are still waiting for guidance from the Texas Education Agency (TEA) on the AG opinion generally and potential requirements and consequences for educational professionals and administrators.

And then, there are the Title IX conflicts….

Title IX Tension

Title IX requires that schools treat students the same regardless of sex. Under current law as interpreted by most courts and the Federal government, “sex” includes sexual orientation, gender identity, and transgender status. Accordingly, actions toward transgender students not applied to similarly situated cisgender students could be Title IX discrimination. Schools that violate Title IX can be subject to lengthy Office for Civil Rights investigations, monitoring by OCR for years after a violation is found, and costly federal lawsuits.

Teenagers reportedly account for almost four percent of all cosmetic surgery procedures, including nose reshaping, male breast reduction, sometimes including liposuction, ear surgery, and even breast augmentation for some candidates. Teenagers also receive nonsurgical cosmetic procedures, including laser hair removal, skin resurfacing, and Botox injections. These procedures often “remov[e] otherwise healthy or non-diseased body parts or tissues from children.”

Most plastic surgeons will require parental consent for such procedures, but many procedures are conducted when not medically necessary. Indeed, research by two board-certified plastic surgeons in Dallas recently found that there are few guidelines in place, and many teens get plastic surgery “just to have a different look.” Many of the same concerns that the AG identified for gender reassignment procedures and services apply equally to these other elective procedures.

If a school reports transgender students who have undergone gender reassignment procedures or treatments to DFPS but does not do the same for cisgender students undergoing non-medically necessary plastic surgery procedures, it risks violating Title IX. The law may even limit a school’s ability to ask questions of a transgender student or their parents about whether the student underwent medical treatments for purposes of transition if it does not intend to do the same with all parents about whether their children, regardless of gender identity, have used elective plastic surgery procedures or services.

Notably, federal law has “supremacy” over state law, so any actions that violate Title IX would not be defensible simply because state law required the action.

Key Takeaways for Schools

Texas school professionals and other licensed professionals have now heard the opinion of the Texas Governor, DFPS, and the Attorney General that gender reassignment procedures and services are child abuse. However, none of those opinions have the force of law, and the enforceability of the opinions is unclear. It is imperative for schools in any jurisdiction facing similar legal issues to work closely with legal counsel to create a strategy for complying with any conflicts between state and federal law. For help with navigating these challenging issues, please contact the authors of this post or any other Thompson & Horton attorney.