Gov. Greg Abbott said that gender-affirming care for transgender minors constitutes child abuse in a directive to state agencies. (Photo courtesy creative commons)

El Paso County Attorney Jo Anne Bernal said her office will not follow recent directives by state leaders calling on Texas agencies to investigate gender-affirming care for transgender children as child abuse.

A new order issued by Gov. Greg Abbott calls for criminal penalties against those who aid minors in their gender transition through medical treatments such as puberty blockers or hormones. The order applies not only to the parents of transgender children, but also to doctors, nurses and teachers, according to the letter he sent the Texas Department of Family and Protective Services and other state agencies on Tuesday.

Abbott’s announcement followed a non-binding legal opinion by Texas Attorney General Ken Paxton Monday stating that current Texas law provides grounds for defining gender-affirming care as child abuse.

Bernal said her office will not prosecute reports of child abuse for providing gender-affirming care, despite Abbott’s order. The County Attorney’s Office represents Child Protective Services in court, and determines which CPS cases to prosecute.

Jo Anne Bernal

“In my opinion, there’s no way you can stretch the laws as written to interpret these gender-affirming types of care as abuse or neglect,” she said Wednesday.

“And so no, we would take a very hard and critical look at any case that the agency would bring to us that tried to take action against parents based solely on gender-affirming care because we don’t think that’s an appropriate or correct interpretation of the law,” she said.

Bernal said that during her 28 years at the County Attorney’s Office, “we cannot recollect a single instance where gender-affirming care has been involved in any aspect of an allegation of abuse or neglect.”

For some El Paso families with transgender children, the news is a painful blow in a lengthy battle for transgender rights in Texas.

Lorena “Lori” Edwards has supported her 15-year-old daughter, Emily, in her gender transition for the last six years — Emily was assigned male at birth.

“I personally take offense to people saying or even insinuating that I’d be abusing (my daughter) or forcing her in any way to do anything like this,” Edwards said.

Emily, who began transitioning when she was nine, said that for her, denying gender-affirming care is child abuse.

“If I didn’t have those (puberty) blockers, it would be devastating,” Emily said. “Life-ruining, heartbreaking — like being forced into a body that’s not mine.”

Lori Edwards, right, and her daughter, Emily, take down a banner at the Borderland Rainbow Center on May 13, 2021. The center provides support and therapy for LGBT+ people and their families. (Corrie Boudreaux/El Paso Matters)

Republican-backed legislation that would have defined gender-affirming medical care of transgender children as child abuse failed to pass during the 2021 legislative session, part of a barrage of recent legislation directed at transgender children in Texas and other states. A separate bill restricting trans kids’ participation in school sports passed during the fall special session.

Despite the failed legislative efforts, Paxton’s statement said existing Texas law establishes gender-affirming medical care as child abuse. He argued the use of puberty blockers and hormones for transgender children could cause “mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning,” a violation of chapter 261 of the Texas Family Code.

Bernal called the opinion a “tortured interpretation of the family code.”

“Our obligation at the County Attorney’s Office is to follow the law and frankly, the attorney general is misinterpreting the law at best,” Bernal said.

Bernal was joined by county and district attorneys elsewhere in Texas who also spoke out against the directive, including Harris County Attorney Christian D. Menefee and Travis District Attorney Jose Garza, according to the Dallas Morning News.

El Paso District Attorney Yvonne Rosales said in an emailed statement that she expected “on-going litigation in the interpretation of Attorney General Ken Paxton’s opinion.” Though Rosales did not indicate if her office would take legal action on child-abuse allegations involving gender-affirming care, she noted that Paxton’s opinion was “merely that, a legal opinion.”

State and national medical organizations have argued that gender-affirming care for transgender minors is medically necessary, pointing to the heightened risk of suicide for those who are denied treatments like puberty blockers that aid gender transition.

“Every major medical association in the United States recognizes the medical necessity of transition-related care for improving the physical and mental health of transgender people,” read an April 2021 letter by the American Medical Association urging states like Texas to stop interfering in the provision of gender transition-related care for minors.

Local advocacy organizations Borderland Rainbow Center and the Diversity and Resiliency Institute of El Paso are circulating an open letter to oppose the measure, highlighting that the directive is non-binding and does not change reporting requirements for social workers.

“An opinion from the Attorney General’s Office is not legally binding. Nor does a letter from the governor’s office change the law,” said Adri Perez, who uses they/them pronouns and is a policy and advocacy strategist at the American Civil Liberties Union of Texas. “It is up to the courts to interpret current Texas law and the Constitution.”

Kai Shappley of Pearland, Texas, left, and Adri Perez of El Paso held a banner in support of transgender rights at the Texas Capitol on April 12, 2021. (Photo courtesy of Kimberly Shappley)

The announcements from Paxton and Abbott came days before the March 1 primary election, where Paxton may be forced into a runoff election against challenger George P. Bush, according to a recent poll by the Texas Politics Project. Abbott faces seven challengers in the Republican gubernatorial primary, including former U.S. Rep. Allen West and former state Sen. Don Huffines.

“What they are trying to do is sell you a narrative that transgender kids should not exist,” said Perez, who is from El Paso. “(Abbott and Paxton are) doing it in the middle of a primary election to win their elections. But this jeopardizes the safety and well being of transgender kids and families across the state of Texas.”

Perez said Texas had the most anti-LGBTQ bills of any state in the country in 2021, during a record-setting year nationwide for legislation targeting transgender people — particularly trans youth. 

“This isn’t just politics and money,” said Emily’s mother Lori Edwards. “There’s a 15-year-old girl in Far West Texas who is living her best life and just trying to do that without one man in Austin declaring that she’s being abused.”

Cover photo: Gov. Greg Abbott said that gender-affirming care for transgender minors constitutes child abuse in a directive to state agencies. (Photo courtesy creative commons)

Disclosure: Jo Anne Bernal is a financial supporter of El Paso Matters.

Victoria Rossi and René Kladzyk

Victoria Rossi is a gender reporter with El Paso Matters and a Report for America corps member. René Kladzyk reports on immigration, justice and inequality, and arts and culture.