Did the Texas Attorney General say gender-transition procedures on minors are child abuse?

Plain-English summary

In August 2021, state Representative Matt Krause, then chair of the Texas House Committee on General Investigating, asked the Attorney General whether a list of medical and chemical procedures performed on children, several of which can cause sterilization, constitute child abuse. The request framed the procedures as falling under "gender reassignment surgeries" used to transition minors with gender dysphoria, and it listed specific surgeries (such as castration, hysterectomy, oophorectomy, orchiectomy, mastectomy, and related procedures) and drug treatments (puberty-blocking medications and cross-sex hormones). The request expressly carved out procedures that are medically necessary, such as an orchiectomy for a minor with testicular cancer.

In Opinion KP-0401, issued February 18, 2022, the AG concluded that each of the listed "sex change" procedures and treatments, when performed on children as elective care, can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code. The opinion is the AG's legal interpretation. It does not itself make anyone a child abuser; it sets out the office's view of how the Family Code applies, and any actual determination of abuse would be made by a court on the facts of a specific case.

The opinion's reasoning has a few main strands. First, it asserts that procedures causing sterilization implicate a child's fundamental constitutional right to procreate, recognized in Skinner v. Oklahoma, and that because a minor cannot legally consent to sterilization (Texas sets the age of majority at 18, and Medicaid sets a 21-year minimum for sterilization consent), these procedures are unauthorized. Second, it argues parental consent does not cure the problem, because Texas law lets parents consent to medically necessary care but not, in the AG's view, to elective procedures that destroy a child's reproductive capacity. Third, it maps the procedures onto the Family Code's broad, nonexclusive definition of abuse in section 261.001(1), covering mental or emotional injury causing observable impairment (subsections (A) and (B)), physical injury causing substantial harm (subsection (C)), and failure to prevent such harm by another person (subsection (D)). The opinion draws an analogy to "Munchausen syndrome by proxy" cases like Williamson v. State, where Texas courts treated unnecessary medical procedures on children as abuse.

The opinion also notes the mandatory-reporting consequences: under Family Code section 261.101, a person with reasonable cause to believe a child has been abused must report it, and professionals (including teachers, nurses, doctors, and clinic employees) must report within 48 hours, with failure to report a criminal offense under section 261.109. The summary states that a court considering such a case would likely weigh the right to procreation, the physical and emotional harms the opinion describes, consent law, and existing child-abuse standards.

A note on currency: this opinion was the AG's 2022 legal position. AG opinions are persuasive, not binding, and the medical and scientific assertions in the opinion are the AG's, drawn from the sources it cites. The legal framework governing these procedures in Texas has changed materially since 2022 through subsequent litigation and legislation. Treat this page as a record of what KP-0401 said, not as a statement of current Texas law.

What this means for you

This section describes what the opinion holds for each affected group as of its 2022 issuance. It is not current legal advice, and it does not direct anyone to act. The area of law has changed since 2022.

Parents of a minor

The opinion took the position that a parent's general right to consent to a child's medical care (Family Code section 151.001(a)(6)) does not extend to elective procedures that result in a child's sterilization, and that a parent who arranges such procedures could, in the AG's view, "cause or permit" a situation amounting to abuse under section 261.001(1)(B). The opinion expressly did not address medically necessary procedures.

Physicians, counselors, and clinic staff

The opinion stated that any person who conducts or facilitates the listed procedures, including doctors and counselors, could in the AG's view be engaged in conduct the Family Code defines as abuse. It also emphasized the mandatory-reporting duty: professionals with reasonable cause to believe a child has been abused must report within 48 hours under section 261.101(b), and failing to report is a criminal offense under section 261.109(a).

Mandatory reporters generally

Under the opinion's reading, the broad reporting duty in section 261.101(a) is triggered by reasonable cause to believe a child's welfare has been adversely affected by abuse. The opinion frames the listed procedures as potentially within that trigger.

Courts and investigators

The opinion is advisory. It states that whether any particular procedure constitutes abuse is decided case by case under section 261.001, weighing whether the procedure caused or threatened substantial physical or emotional harm, and that a court "could find" the procedures to be abuse. The ultimate finding rests with the court, not the AG.

Common questions

Q: Is an Attorney General opinion the same as a law or a court ruling?
A: No. An AG opinion is the office's legal interpretation. It is persuasive authority that courts and agencies may consider, but it is not binding law, and it does not by itself decide that anyone committed abuse. KP-0401 itself says a court would determine abuse case by case under section 261.001.

Q: What did KP-0401 actually conclude?
A: That the surgical and chemical "sex change" procedures listed in the request, when performed on children as elective care, can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code.

Q: Did the opinion address medically necessary procedures?
A: No. The opinion expressly states it "does not address or apply to medically necessary procedures," giving the example of an orchiectomy for a minor with testicular cancer.

Q: Why did the opinion focus on sterilization and consent?
A: It reasoned that procedures causing sterilization implicate a child's constitutional right to procreate (Skinner v. Oklahoma), that minors cannot legally consent to sterilization, and that parental consent does not authorize elective sterilizing procedures. From that, it argued the procedures are unauthorized and can fit the Family Code's definition of abuse.

Q: Is this still the law in Texas?
A: This page reports a 2022 opinion. The legal landscape governing these procedures in Texas has changed since then through later litigation and legislation. Verify current Texas law and consult an attorney before relying on any specific point.

Background and statutory framework

Family Code chapter 261 governs the reporting and investigation of child abuse and neglect, and section 261.001(1) defines abuse through a broad, nonexclusive list (In re Interest of S.M.R.). The Department of Family and Protective Services has adopted rules (40 Tex. Admin. Code §§ 707.453, 707.455) giving meaning to terms like "mental or emotional injury" and "physical injury that results in substantial harm." The opinion connected these definitions to its analysis of the procedures in the request.

For the constitutional right to procreate, the opinion relied on Skinner v. Oklahoma, a 1942 decision on the dangers of state-compelled sterilization. The State's heightened interest in protecting children drew on Bellotti v. Baird, Ginsberg v. New York, and the Texas case T.L. v. Cook Children's Med. Ctr., a parens patriae decision. The Munchausen-by-proxy analogy rested principally on Williamson v. State and Austin v. State (with out-of-state cases such as In re McCabe). On consent, it pointed to the age of majority in Civil Practice and Remedies Code section 129.001, the limited list of treatments a minor may consent to in Family Code section 32.003, the federal Medicaid sterilization-consent rules at 42 C.F.R. §§ 441.253–441.258 and their history at 43 Fed. Reg. 52146, and the female-genital-mutilation statute at Health and Safety Code section 167.001. It noted that the Eighty-seventh Legislature considered but did not pass bills (such as H.B. 22) that would have written gender-transition procedures into the abuse definition expressly.

Citations and references

Statutes and rules:

• Tex. Fam. Code § 261.001 (definition of abuse), § 261.101 (duty to report), § 261.109 (failure to report)
• Tex. Penal Code § 22.04 (injury to a child)
• Tex. Health & Safety Code § 167.001 (female genital mutilation)
• 42 C.F.R. §§ 441.253–441.258 (Medicaid sterilization-consent requirements)

Key cases:

• Skinner v. Oklahoma, 316 U.S. 535 (1942) (fundamental right to procreate; dangers of sterilization)
• Bellotti v. Baird, 443 U.S. 622 (1979) (State's interest given the "peculiar vulnerability of children")
• Williamson v. State, 356 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (unnecessary medical procedure can support a child-injury charge)
• Austin v. State, 222 S.W.3d 801 (Tex. App.—Austin 2007, pet. ref'd) (Munchausen-by-proxy conduct upheld as felony injury to a child)
• T.L. v. Cook Children's Med. Ctr., 607 S.W.3d 9 (Tex. App.—Fort Worth 2020) (State's parens patriae interest in a child's welfare)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0401
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0401.pdf

Original opinion text

February 18, 2022

The Honorable Matt Krause
Chair, House Committee on General Investigating
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0401

Re: Whether certain medical procedures performed on children constitute child abuse (RQ-0426-KP)

Dear Representative Krause:

You ask whether the performance of certain medical and chemical procedures on children, several of which have the effect of sterilization, constitute child abuse.¹ You specifically ask about procedures falling under the broader category of "gender reassignment surgeries." Request Letter at 1. You state that such procedures typically are performed to "transition individuals with gender dysphoria to their desired gender," and you identify the following specific "sex-change procedures": (1) sterilization through castration, vasectomy, hysterectomy, oophorectomy, metoidioplasty, orchiectomy, penectomy, phalloplasty, and vaginoplasty; (2) mastectomies; and (3) removing from children otherwise healthy or non-diseased body part or tissue. Id. at 1 (footnotes omitted). Additionally, you ask whether "providing, administering, prescribing, or dispensing drugs to children that induce transient or permanent infertility" constitutes child abuse. See id. at 1–2. You include the following categories of drugs: (1) puberty-suppression or puberty-blocking drugs; (2) supraphysiologic doses of testosterone to females; and (3) supraphysiologic doses of estrogen to males. See id.

¹ See Letter from Honorable Matt Krause, Chair, House Comm. on Gen. Investigating, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 23, 2021) ("Request Letter"); see also Letter from Honorable Jaime Masters, Comm'r, Tex. Dept. of Family & Protective Servs., to Honorable Greg Abbott, Governor, State of Tex. at 1 (Aug. 11, 2021) (on file with the Op. Comm.) (hereinafter "Commissioner's Letter").

You qualify your question with the following statement: "Some children have a medically verifiable genetic disorder of sex development or do not have the normal sex chromosome structure for male or female as determined by a physician through genetic testing that require procedures similar to those described in this request." Id. at 2. In other words, in rare circumstances, some of the procedures you list are borne out of medical necessity. For example, a minor male with testicular cancer may need an orchiectomy. This opinion does not address or apply to medically necessary procedures.

I. Executive Summary

Based on the analysis herein, each of the "sex change" procedures and treatments enumerated above, when performed on children, can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code.

• These procedures and treatments can 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." TEX. FAM. CODE § 261.001(1)(A).
• These procedures and treatments can "caus[e] or permit[] the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning." Id. § 261.001(1)(B).
• These procedures and treatments can cause a "physical injury that results in substantial harm to the child." Id. § 261.001(1)(C).
• These procedures and treatments often involve a "failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child[,]" particularly by parents, counselors, and physicians. Id. § 261.001(1)(D).

In addition to analysis under the Family Code, we discuss below the fundamental right to procreation, issues of physical and emotional harm associated with these procedures and treatments, consent laws in Texas and throughout the country, and existing child abuse standards. Each of the procedures and treatments you ask about can constitute child abuse when performed on minor children.

II. Nature and context of the question presented

Forming the basis for your request, you contend that the "sex change" procedures and treatments you ask about are typically performed to transition individuals with gender dysphoria to their desired gender. See Request Letter at 1. The novel trend of providing these elective sex changes to minors often has the effect of permanently sterilizing those minor children. While you refer to these procedures as "sex changes," it is important to note that it remains medically impossible to truly change the sex of an individual because this is determined biologically at conception. No doctor can replace a fully functioning male sex organ with a fully functioning female sex organ (or vice versa). In reality, these "sex change" procedures seek to destroy a fully functioning sex organ in order to cosmetically create the illusion of a sex change.

Beyond the obvious harm of permanently sterilizing a child, these procedures and treatments can cause side effects and harms beyond permanent infertility, including serious mental health effects, venous thrombosis/thromboembolism, increased risk of cardiovascular disease, weight gain, decreased libido, hypertriglyceridemia, elevated blood pressure, decreased glucose tolerance, gallbladder disease, benign pituitary prolactinoma, lowered and elevated triglycerides, increased homocysteine levels, hepatotoxicity, polycythemia, sleep apnea, insulin resistance, chronic pelvic pain, and increased cancer and stroke risk.

While the spike in these procedures is a relatively recent development, sterilization of minors and other vulnerable populations without clear consent is not a new phenomenon and has an unsettling history. Historically weaponized against minorities, sterilization procedures have harmed many vulnerable populations, such as African Americans, female minors, the disabled, and others. These violations have been found to infringe upon the fundamental human right to procreate. Any discussion of sterilization procedures in the context of minor children must, accordingly, consider the fundamental right that is at stake: the right to procreate. Given the uniquely vulnerable nature of children, and the clear dangers of sterilization demonstrated throughout history, it is important to emphasize the crux of the question you present today, whether facilitating (parents/counselors) or conducting (doctors) medical procedures and treatments that could permanently deprive minor children of their constitutional right to procreate, or impair their ability to procreate, before those children have the legal capacity to consent to those procedures and treatments, constitutes child abuse.

The medical evidence does not demonstrate that children and adolescents benefit from engaging in these irreversible sterilization procedures. The prevalence of gender dysphoria in children and adolescents has never been estimated, and there is no scientific consensus that these sterilizing procedures and treatments even serve to benefit minor children dealing with gender dysphoria. As stated by the Centers for Medicare and Medicaid Services, "There is not enough high-quality evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria and whether patients most likely to benefit from these types of surgical intervention can be identified prospectively." Also, "several studies show a higher rate of regret at being sterilized among younger women than among those who were sterilized at a later age." 43 FED. REG. at 52,151, 52,152. This further indicates that minor children are not sufficiently mature to make informed decisions in this context.

There is no evidence that long-term mental health outcomes are improved or that rates of suicide are reduced by hormonal or surgical intervention. "Childhood-onset gender dysphoria has been shown to have a high rate of natural resolution, with 61-98% of children reidentifying with their biological sex during puberty. No studies to date have evaluated the natural course and rate of gender dysphoria resolution among the novel cohort presenting with adolescent-onset gender dysphoria." One of the few relevant studies monitored transitioned individuals for 30 years. It found high rates of post-transition suicide and significantly elevated all-cause mortality, including increased death rates from cardiovascular disease and cancer, although causality could not be established. The lack of evidence in this field is why the Centers for Medicare & Medicaid Services rejected a nationwide coverage mandate for adult gender transition surgeries during the Obama Administration. Similarly, the World Professional Association for Transgender Health states that with respect to irreversible procedures, genital surgery should not be carried out until patients reach the legal age of majority to give consent for medical procedures in a given country.

Generally, the age of majority is eighteen in Texas. TEX. CIV. PRAC. & REM. CODE § 129.001. With respect to consent to sterilization procedures, Medicaid sets the age threshold even higher, at twenty-one years old. Children and adolescents are promised relief and asked to "consent" to life-altering, irreversible treatment, and to do so in the midst of reported psychological distress, when they cannot weigh long-term risks the way adults do, and when they are considered by the State in most regards to be without legal capacity to consent, contract, vote, or otherwise. Legal and ethics scholars have suggested that it is particularly unethical to radically intervene in the normal physical development of a child to "affirm" a "gender identity" that is at odds with bodily sex.

State and federal governments have "wide discretion to pass legislation in areas where there is medical and scientific uncertainty." Gonzales v. Carhart, 550 U.S. 124, 163 (2007). Thus, states routinely regulate the medical profession and routinely update their regulations as new trends arise and new evidence becomes available. In the opioid context, for instance, states responded to an epidemic caused largely by pharmaceutical companies and medical professionals. Dismissing as "opioidphobic" any concern that "raising pain treatment to a 'patients' rights' issue could lead to overreliance on opioids," these experts created new pain standards and assured doctors that prescribing more opioids was largely risk free. Id. As we know now, the results were, indeed, are, nothing short of tragic. There is always the potential for novel medical determinations to promote purported remedies that may not improve patient outcomes and can even result in tragic harms. The same potential for harm exists for minors who have engaged in the type of procedures or treatments above.

The State's power is arguably at its zenith when it comes to protecting children. In the Supreme Court's words, that is due to "the peculiar vulnerability of children." Bellotti v. Baird, 443 U.S. 622, 634 (1979); see also Ginsberg v. New York, 390 U.S. 629, 640 (1968) ("The State also has an independent interest in the well-being of its youth."). The Supreme Court has explained that children's "inability to make critical decisions in an informed, mature manner" makes legislation to protect them particularly appropriate. Bellotti, 443 U.S. at 634. The procedures that you ask about impose significant and irreversible effects on children, and we therefore address them with extreme caution, mindful of the State's duty to protect its children. See generally T.L. v. Cook Children's Med. Ctr., 607 S.W.3d 9, 42 (Tex. App.—Fort Worth 2020), cert. denied, 141 S. Ct. 1069 (2021) ("Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. In this respect, the [child]'s liberty interest may, in appropriate circumstances, be subordinated to the State's parens patriae interest in preserving and promoting the welfare of the child.") (citation omitted).

III. To the extent that these procedures and treatments could result in sterilization, they would deprive the child of the fundamental right to procreate, which supports a finding of child abuse under the Family Code.

A. The procedures you describe can and do cause sterilization.

The surgical and chemical procedures you ask about can and do cause sterilization. Similarly, the treatments you ask about often involve puberty-blocking medications. Such medications suppress the body's production of estrogen or testosterone to prevent puberty and are being used in this context to pause the sexual development of a person that occurs during puberty. The use of these chemical procedures for this purpose is not approved by the federal Food and Drug Administration and is considered an "off-label" use of the medications. These chemical procedures prevent a person's body from developing the capability to procreate. There is insufficient medical evidence available to demonstrate that discontinuing the medication resumes a normal puberty process. See generally Hennessy-Waller v. Snyder, 529 F. Supp. 3d 1031, 1042 (D. Ariz. 2021), citing Bell v. Tavistock and Portman NHS Foundation Trust, 2020 EWHC 3274, ¶ 134 (Dec. 1, 2020) (referring to Bell's conclusion that a clinic's practice of prescribing puberty-suppressing medication to individuals under age 18 with gender dysphoria and determining such treatment was experimental). Thus, because the procedures you inquire about can and do result in sterilization, they implicate a minor child's constitutional right to procreate.

B. The United States Constitution protects a fundamental right to procreation.

The United States Supreme Court recognizes that the right to procreate is a fundamental right under the Fourteenth Amendment. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Almost a century ago, the Court explained the unique concerns sterilization poses respecting this fundamental right:

The power to sterilize, if exercised, may have subtle, far reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.

Id. To the extent the procedures you describe cause permanent damage to reproductive organs and functions of a child before that child has the legal capacity to consent, they unlawfully violate the child's constitutional right to procreate. See generally 43 FED. REG. at 52,146–52,152 (discussing ripeness for coercion and regret rates among minor children).

C. Because children are legally incompetent to consent to sterilization, procedures and treatments that result in a child's sterilization are unauthorized and infringe on the child's fundamental right to procreate.

Under Texas law, a minor is a person under eighteen years of age that has never been married and never declared an adult by a court. See TEX. CIV. PRAC. & REM. CODE § 129.001; TEX. FAM. CODE §§ 1.104, 101.003. State law recognizes seven instances in which a minor can consent to certain types of medical treatment on their own. See id. § 32.003. None of the express provisions relating to a minor's ability to consent to medical treatment addresses consent to the procedures used for "gender-affirming" treatment. See generally id.

The lack of authority of a minor to consent to an irreversible sterilization procedure is consistent with other law. The federal Medicaid program does not allow for parental consent, has established a minimum age of 21 for consent to sterilization procedures, and imposes detailed requirements for obtaining that consent. 42 C.F.R. §§ 441.253(a); 441.258 ("Consent form requirements"). Federal Medicaid funds may not be used for any sterilization without complying with the consent requirements, meaning a doctor may not be reimbursed for sterilization procedures performed on minors. Id. § 441.256(a).

The higher age limit for sterilization procedures was implemented due to a number of special concerns, including historical instances of forced sterilization. See 43 FED. REG. 52146, 52148. "[M]inors and other incompetents have been sterilized with federal funds and . . . an indefinite number of poor people have been improperly coerced into accepting a sterilization operation under the threat that various federally supported welfare benefits would be withdrawn unless they submitted to irreversible sterilization." Relf v. Weinberger, 372 F. Supp. 1196, 1199 (D.D.C. 1974), vacated, 565 F.2d 722 (D.C. Cir. 1977). In addition, the 21-year minimum age-of-consent rule accounted for concerns that minors were more susceptible to coercion than those over 21 and that younger women had higher rates of regret for sterilization than those who were sterilized at a later age. 43 FED. REG. at 52,151.

Regarding parental consent, Texas law generally recognizes a parent's right to consent to a child's medical care. TEX. FAM. CODE § 151.001(a)(6). But this general right to consent to certain medically necessary procedures does not extend to elective (not medically necessary) procedures and treatments that infringe upon a minor child's constitutional right to procreate. Indeed, courts have analyzed the imposition of unnecessary medical procedures upon children in similar circumstances in the past to determine whether doing so constitutes child abuse.

One such situation that the law has addressed is often referred to as "Munchausen by proxy" or "factitious disorder imposed on another": [a] psychological disorder that is characterized by the intentional feigning, exaggeration, or induction of the symptoms of a disease or injury in oneself or another and that is accompanied by the seeking of excessive medical care from various doctors and medical facilities typically resulting in multiple diagnostic tests, treatments, procedures, and hospitalizations.

In situations such as this, an individual intentionally seeks to procure, often by deceptive means, unnecessary medical procedures or treatments either for themselves or others, usually their children. In Texas, courts have found that these "Munchausen by proxy" situations can constitute child abuse. See generally Williamson v. State, 356 S.W.3d 1, 19–21 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (recognizing that an unnecessary medical procedure may cause serious bodily injury, supporting a charge of injury to a child under section 22.04 of the Penal Code).

In the context of elective sex change procedures for minors, the Legislature has not provided any avenue for parental consent, and no judicial avenue exists for the child to proceed with these procedures and treatments without parental consent. By comparison, Texas law respecting abortion requires parental consent and, in extenuating circumstances, permits non-parental consent for a minor to obtain an abortion. TEX. OCC. CODE § 164.052(19); TEX. FAM. CODE § 33.003. But the Texas Legislature has not decided to make those same allowances for consent to sterilization, and thus a parent cannot consent to sterilization procedures or treatments that result in the permanent deprivation of a minor child's constitutional right to procreate. Thus, no avenue exists for a child to consent to or obtain consent for an elective procedure or treatment that causes sterilization.

IV. The procedures and treatments you describe can constitute child abuse under the Family Code.

Having established the legal and cultural context of this opinion request, we now consider whether these procedures and treatments qualify as child abuse under the Family Code. See Request Letter at 1. Where, as a factual matter, one of these procedures or treatments cannot result in sterilization, a court would have to go through the process of evaluating, on a case-by-case basis, whether that procedure violates any of the provisions of the Family Code, and whether the procedure or treatment poses a similar threat or likelihood of substantial physical and emotional harm. Thus, where a factual scenario involving non-medically necessary, gender-based procedures or treatments on a minor causes or threatens to cause harm or irreparable harm to the child, comparable to instances of Munchausen syndrome by proxy or criminal injury to a child, or demonstrates a lack of consent, etc., a court could find such procedures to constitute child abuse under section 261.001.

A. The Texas Legislature defines child abuse broadly.

Family Code chapter 261 provides for the reporting and investigation of abuse or neglect of a child. See TEX. FAM. CODE §§ 261.001–.505; see also TEX. PENAL CODE § 22.04 (providing for the offense of injury to a child). Section 261.001 defines abuse through a broad and nonexclusive list of acts and omissions. TEX. FAM. CODE § 261.001(1); see also In re Interest of S.M.R., 434 S.W.3d 576, 583 (Tex. 2014). Of course, this broad definition of abuse would apply to and include criminal acts against children, such as "female genital mutilation" or "injury to a child."

Your questions implicate several components of section 261.001(1). Subsection 261.001(1)(A) identifies "mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning." Subsection 261.001(1)(B) provides that "causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning" is abuse. Subsection 261.001(1)(C) includes as abuse a "physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child." And subsection 261.001(1)(D) includes "failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child."

Offering some clarity to the scope of "abuse" under subsection 261.001(1), the Texas Department of Family and Protective Services ("Department") adopted rules giving meaning to the key terms and phrases used in the definition. The Department acknowledges that emotional abuse is a subset of abuse that includes "[m]ental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning." 40 TEX. ADMIN. CODE § 707.453(a). The Department's rules provide that "[m]ental or emotional injury" means [t]hat a child of any age experiences significant or serious negative effects on intellectual or psychological development or functioning . . . and exhibits behaviors indicative of observable and material impairment . . . mean[ing] discernable and substantial damage or deterioration to a child's emotional, social, and cognitive development. Id. § 707.453(b)(1)–(2).

With respect to physical injuries, the Department further clarified the meaning of the phrase "[p]hysical injury that results in substantial harm to the child," explaining that it means in relevant part a real and significant physical injury or damage to a child that includes but is not limited to . . . impairment of or injury to any bodily organ or function. Id. § 707.455(b)(2)(A). The Department's rules also define a "[g]enuine threat of substantial harm from physical injury" to include the declaring or exhibiting the intent or determination to inflict real and significant physical injury or damage to a child. The declaration or exhibition does not require actual physical contact or injury. Id. § 707.455(b)(1).

Subsection 261.001(1) and these rules define "abuse" broadly to include mental or emotional injury in addition to a physical injury. To the extent the specific procedures about which you ask may cause mental or emotional injury or physical injury within these provisions, they constitute abuse.

Further, the Legislature has explicitly defined "female genital mutilation" and made such act a state jail felony. See TEX. HEALTH & SAFETY CODE § 167.001(a)–(b). While the Legislature has not elsewhere defined the phrase "genital mutilation", nor specifically for males of any age, the Legislature's criminalization of a particular type of genital mutilation supports an argument that analogous procedures that include genital mutilation, potentially including gender reassignment surgeries, could constitute "abuse" under the Family Code's broad and non-exhaustive examples of child abuse or neglect.²⁰ See TEX. FAM. CODE § 261.001(1)(A)–(M); see generally Commissioner's Letter at 1. Thus, many of the procedures and treatments you ask about can constitute "female genital mutilation," a standalone criminal act. But even where these procedures and treatments may not constitute "female genital mutilation" under Texas law, a court could still find that these procedures and treatments constitute child abuse under section 261.001 of the Family Code.

²⁰ The Eighty-seventh Legislature considered multiple bills that would have amended Family Code subsection 261.001(1) to expressly include in the definition of abuse the performing of surgery or other medical procedures on a child for the purpose of gender transitioning or gender reassignment. Those bills did not pass. See, e.g., Tex. H.B. 22, 87th Leg., 3d C.S. (2021).

B. Each of these procedures and treatments can constitute abuse under Texas Family Code § 261.001(1)(A), (B), (C), or (D).

The Texas Family Code is clear, causing or permitting substantial harm to the child or the child's growth and development is child abuse. Courts have held that an unnecessary surgical procedure that removes a healthy body part from a child can constitute a real and significant injury or damage to the child. See generally Williamson v. State, 356 S.W.3d 1, 19–21 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). The Williamson case involved a "victim of medical child abuse, sometimes referred to as Munchausen Syndrome by Proxy." Id. at 5. In the Williamson case, the abuse was perpetrated on the child when he was five and six years old by his mother. Id. The evidence showed that two surgeries performed on the child "were not medically necessary and that [his mother] knowingly and intentionally caused the unnecessary procedures to be performed by fabricating, exaggerating, and inducing the symptoms leading to the surgeries." Id.

Similarly, in Austin v. State, a court of appeals upheld the conviction for felony injury of a child of a mother suffering from Munchausen syndrome by proxy who injected her son with insulin. See 222 S.W.3d 801, 804 (Tex. App.—Austin 2007, pet. ref'd); see also In re McCabe, 580 S.E.2d 69, 73 (N.C. Ct. App. 2003); Matter of Aaron S., 625 N.Y.S.2d 786, 793 (Fam. Ct. 1993). In guidance documents published for its child protective services attorneys, the Texas Department of Family and Protective Services explains that "Munchausen by proxy syndrome is relatively rare, but when it occurs, it is frequently a basis for a finding of child abuse." Whether motivated by Munchausen syndrome by proxy or otherwise, it is clear that unnecessary medical treatment inflicted on a child by a parent can constitute child abuse under the Family Code.

By definition, procedures and treatments resulting in sterilization cause "physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child" by surgically altering key physical body parts of the child in ways that render entire body parts, organs, and the entire reproductive system of the child physically incapable of functioning. Thus, such procedures and treatments can constitute child abuse under section 261.001(1)(C). Even where the procedure or treatment does not involve the physical removal or alteration of a child's reproductive organs (i.e. puberty blockers), these procedures and treatments can 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" by subjecting a child to the mental and emotional injury associated with lifelong sterilization, an impairment to one's growth and development. Therefore, a court could find these procedures and treatments to be child abuse under section 261.001(1)(A). Further, attempts by a parent to consent to these procedures and treatments on behalf of their child may, if successful, "cause or permit the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning[,]" and could be child abuse under section 261.001(1)(B). Additionally, the failure to stop a doctor or another parent from conducting these treatments and procedures on a minor child can constitute a "failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child[,]" and this "failure to make a reasonable effort to prevent" can also constitute child abuse under section 261.001(1)(D). Any person that conducts or facilitates these procedures or treatments could be engaged in child abuse, whether that be parents, doctors, counselors, etc.

It is important to note that anyone who has "a reasonable cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report" as described in the Family Code. TEX. FAM. CODE § 261.101(a). Further, "[i]f a professional has reasonable cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has reasonable cause to believe that the child has been abused as defined by Section 261.001, the professional shall make a report not later than the 48th hour after the hour the professional first has reasonable cause to believe that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code." TEX. FAM. CODE § 261.101(b). The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers. Id. A failure to report under these circumstances is a criminal offense. TEX. FAM. CODE § 261.109(a).

S U M M A R Y

Each of the "sex change" procedures and treatments enumerated above, when performed on children, can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code.

When considering questions of child abuse, a court would likely consider the fundamental right to procreation, issues of physical and emotional harm associated with these procedures and treatments, consent laws in Texas and throughout the country, and existing child abuse standards.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

AARON REITZ
Deputy Attorney General for Legal Strategy

RALPH M. MOLINA
Special Counsel to the First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee