Texas Supreme Court allows CPS to investigate sterilization of gender-confused kids as child abuse

The Texas State Capitol is seen on September 20, 2021, in Austin, Texas.
The Texas State Capitol is seen on September 20, 2021, in Austin, Texas. | Tamir Kalifa/Getty Images

The Texas Supreme Court has issued a ruling allowing Child Protective Services to resume investigating cases in which children suffering from gender dysphoria risk being sterilized from the use of experimental puberty blockers or are given cross-sex hormones and encouraged to undergo body mutilation surgeries.

A doctor and the parents of a gender-confused child sued Gov. Greg Abbott over a letter he sent to the Department of Family and Protective Services in which he described the experimental procedures as “child abuse” and ordered the department to follow state law as laid out by Attorney General Ken Paxton.

In a decision released Friday, the high court gave a mixed ruling that allows an injunction protecting the parents to remain in effect but also removed a statewide block on CPS' investigations.

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Additionally, the Texas Supreme Court opinion stated that the DFPS is “not compelled by law to follow” the stated views of Abbott and Paxton, who believe that elective mastectomies performed on children and teens and genital mutilation surgeries constitute “child abuse.”

“Because the Governor lacks the authority to investigate or prosecute the plaintiffs, and no party alleges that he has threatened to do so, an order prohibiting him from engaging in such conduct has no support in this record,” stated the opinion.

“With relief partially denied and partially granted, we are left with (1) a court of appeals order that protects only the plaintiffs as against DFPS and its Commissioner’s actions, and not as against the Governor; (2) a nonbinding Attorney General Opinion; (3) a nonbinding statement by the Governor; and (4) a state agency, DFPS, with the same discretion to investigate reports of child abuse that it had before issuance of OAG Opinion No. KP-0401 and the Governor’s letter.”

In February, Paxton issued Opinion No. KP-0401, which argued that so-called sex-change procedures “can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code.”

“Beyond the obvious harm of permanently sterilizing a child, these procedures and treatments can cause side effects and harms beyond permanent infertility,” read the opinion. “The medical evidence does not demonstrate that children and adolescents benefit from engaging in these irreversible sterilization procedures.”

In response, Abbott issued a directive to state authorities to follow the law in keeping with the Paxton opinion, which led to officials opening at least nine investigations into parents who allowed their underage children to undergo medicalized gender transitions.

The parents of a trans-identified teenager filed suit against the state over the directive, being represented by the American Civil Liberties Union and Lambda Legal.

In March, District Judge Amy Clark Meachum temporarily blocked the investigations, concluding that there was a “substantial likelihood” that plaintiffs will prevail in getting Abbott’s directive overturned, labeling his actions “beyond the scope of his duty and unconstitutional.”

The temporary injunction was reinstated later in March by the Texas Court of Appeals, Third District, at Austin, which claimed that “allowing appellants to follow the Governor’s directive pending the outcome of this litigation would result in irreparable harm.”  

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