Governor's order regarding transgender students puts educators in a difficult spot

Gov. Greg Abbott has directed the Department of Family and Protective Services to investigate whether sex-reassignment and puberty-blocking treatments performed on minors constitute child abuse as outlined in an Attorney General Opinion issued on Feb. 18. But enforcement is on hold as legal challenges to the governor's order mount. And federal officials say they are working to shield families from the mandate.

In a letter to the department, Abbott highlights the requirement of professional employees, including teachers, to report suspected child abuse within 48 hours. The Department of Family and Protective Services includes the investigative Child Protective Services division.

The governor’s letter is of dubious legality, as the governor has no authority to issue directives outside of state agency rulemaking procedures and the powers specifically delegated to him by the Texas Legislature during emergencies. The attorney general’s opinion likewise is advisory only. Some county and district prosecutors have stated that they have no intention of complying with the governor’s letter or giving any credence to the opinion of the attorney general, which has been described as “politically motivated and legally incorrect.” The American Civil Liberties Union has already sued the state on behalf of a family that was under investigation for getting medically necessary care for their transgender teenager.

The problem for teachers is that failure to report suspected child abuse can result in criminal charges. The fact that suspicion of child abuse depends on the political ideology of the enforcers of that reporting requirement creates yet another burden on educators. The actions of Abbott and Attorney General Ken Paxton also put teachers in a difficult position regarding students’ rights of privacy and parents’ rights to raise their children, even as Abbott touts the need to bolster parental rights in education.

The attorney general opinion does not limit its analysis to permanent gender-reassignment surgery, but also describes the use of temporary puberty blockers as constituting child abuse. Read strictly, the opinion and the letter would require teachers and other professionals to report any suspected case of gender reassignment or use of puberty blockers to law enforcement or the Department of Family and Protective Services. As the use of medically necessary gender transition services is recognized by the American Medical Association, it’s not clear that the treatment with hormone suppressors in minors by physicians and parents pursuant to a comprehensive treatment plan would meet the state’s definition of child abuse.

Without regard to the recent efforts of Abbott and Paxton, teachers should be mindful of their duty to report suspected child abuse within 48 hours. Information about how to report is available here. Note that reports can be made anonymously, but DFPS does not provide a confirmation number for an anonymous report. TCTA members with questions about making a report should contact the Legal Department for advice well before the 48-hour deadline.

Paxton issued the opinion at the request of State Rep. Matt Krause, the chairman of the House Committee on General Investigating. Krause is the same lawmaker who issued the letter to the Texas Education Agency and school districts regarding the 850 “suspect” books with themes that include racial discrimination, sexual orientation, and gender-identity issues.