Metro Weekly

Texas AG sues feds over pushback against state’s anti-trans actions

Ken Paxton claims the Biden administration has misinterpreted meaning of "sex discrimination."

Texas Attorney General Ken Paxton – Photo: Facebook.

Texas Attorney General Ken Paxton (R) has sued the Biden administration over recent actions it has taken to push back against a Texas directive requiring state officials to investigate claims of transgender children receiving gender-affirming care as “child abuse.”

On Wednesday, Paxton amended an existing lawsuit against the federal government, asking the courts to void recent guidance issued by the U.S. Department of Health and Human Services to child welfare agencies and medical providers, which is intended to protect transgender youth and their families from being prosecuted for following legitimate medical advice from health care providers.

That federal guidance was issued in response to a directive from Republican Governor Greg Abbott directing the state’s Department of Family and Protective Services to investigate families suspected of allowing their transgender children to receive gender-affirming care by probing into their private health information.

Abbott issued the order in response to a legally non-binding opinion proferred by Paxton asserting that all forms of surgical and hormonal interventions could constitute “abuse,” on the grounds that allowing minors to obtain such treatments would violate a child’s right to procreate.

The HHS guidance informed child welfare agencies that gender-affirming care can be a legitimate form of medically necessary treatment for gender dysphoria and should be narrowly tailored to individual patients’ needs; reminded health care providers that they do not need to disclose private patient information on gender-affirming care; and reiterated the Biden administration’s interpretation that denying medically necessary care to transgender individuals based solely on their gender identity — or forcing doctors to act on the state’s behalf — is a form of “sex-based discrimination” under Section 1557 of the Affordable Care Act.

In the lawsuit, Paxton argues that the HHS guidance is based on an “erroneous interpretation of sex discrimination” — in other words, that sex discrimination should only apply to instances where a person is discriminated against based on their assigned sex at birth.

Paxton has also claimed that Texas is not seeking to deny health care based on gender identity, but simply wants to prevent all children — regardless of gender identity — from being subjected to “unnecessary medical interventions.”

Paxton claims that Texas “has the right to define and regulate the practice of medicine and the obligations of professionals toward minors who lack the power to consent to particular medical procedures,” as well as the right to define what constitutes “abuse” in order to protect vulnerable children.

“The federal government does not have the authority to govern the medical profession and set family policies, including what may constitute child abuse in state family law courts,” Paxton wrote in the lawsuit.

Paxton also expresses concern in the lawsuit that HHS may withhold federal funding from states that do not adhere to the guidance, which for Texas would mean the loss of potentially billions of dollars that are currently funneled to the state’s Department of State Health Service and Health and Human Services Commission, according to The Texas Tribune.

Paxton’s lawsuit additionally attacks the Biden administration over guidance issued in June 2021 by the U.S. Equal Employment Opportunity Commission regarding workplace discrimination.

In that guidance, EEOC Chair Charlotte Burrows opined that requiring a transgender employee to dress in accordance with their assigned sex at birth would constitute sex discrimination — the very issue that the U.S. Supreme Court dealt with in the case of Aimee Stephens, a trans woman fired from her position at a funeral home after transitioning on the job, which was part of the larger Bostock v. Clayton County case questioning whether LGBTQ people were protected from employment discrimination under the Civil Rights Act.

Burrows also said the use of pronouns inconsistent with an individual’s gender identity could “in certain circumstances” be considered a form of harassment.

To that end, Paxton argues in the lawsuit that “Texas and its constituent agencies, including the Texas Department of Agriculture, have the sovereign right to set their own policies on bathroom usage, dress codes, and pronoun usage within their workplaces,” as well as claiming that the EEOC has misinterpreted the findings of the Bostock decision.

As a result of Abbott’s directive, the state has begun at least nine investigations into parents of transgender children, and may have since launched additional investigations, but has been tight-lipped about its actions due to an ongoing lawsuit brought by the family of a DFPS employee whose daughter is transgender, as well as a clinical psychologist who has said the governor’s directive is forcing her to choose between reporting clients to the state or losing her license and other penalties.

Last week, a Texas state judge issued a temporary injunction blocking DFPS from investigating the trans teen’s family, on the grounds that the family would suffer “irreparable injury” that could not be remedied after the fact, if, for example, the child were removed from the home and placed in foster care, her mother was fired from her state job, leading to a loss of health insurance for the entire family, or her parents were charged by overzealous county prosecutors, especially if they were found guilty of “abuse” and ultimately jailed.

Paxton attempted to overturn the judge’s temporary injunction, but that request was rejected by the state’s 3rd Court of Appeals, which ruled that the judge’s temporary injunction, applying to only one particular family, was not appealable, according to The Associated Press.

The appeals court’s decision keeps the temporary injunction in place, although the judge who issued it, District Judge Amy Clark Meachum, of the 201st Civil District Court in Travis County, was slated to rule on Friday whether to issue a broader temporary order blocking enforcement of Abbott’s order against all families with transgender children while the case works its way through the courts.

Abbott’s order already has had a chilling effect on access to gender-affirming care, as Texas Children’s Hospital has stopped providing hormone therapies for any children suffering with gender dysphoria out of fear of legal action against individual doctors, including the potential loss of medical licenses.

Support Metro Weekly’s Journalism

These are challenging times for news organizations. And yet it’s crucial we stay active and provide vital resources and information to both our local readers and the world. So won’t you please take a moment and consider supporting Metro Weekly with a membership? For as little as $5 a month, you can help ensure Metro Weekly magazine and remain free, viable resources as we provide the best, most diverse, culturally-resonant LGBTQ coverage in both the D.C. region and around the world. Memberships come with exclusive perks and discounts, your own personal digital delivery of each week’s magazine (and an archive), access to our Member's Lounge when it launches this fall, and exclusive members-only items like Metro Weekly Membership Mugs and Tote Bags! Check out all our membership levels here and please join us today!