FORT WORTH, Texas — The Texas attorney general's recent legal opinion that called transgender health care for minors "child abuse" cited sources in a misleading way and drew parallels that researchers say simply do not exist, according to an analysis by the Fort Worth Star-Telegram.
Attorney General Ken Paxton issued a legal opinion on Feb. 18, saying that certain types of gender-affirming health care, including puberty blockers and surgery, should be classified as child abuse when used for minors. Several days later, Gov. Greg Abbott issued a letter directing state agencies to investigate transgender health care for youth as abuse.
Gender-affirming care can include a host of services, from counseling sessions to surgery. However, surgeries are rare for minors, and medical experts already recommend that such surgeries be delayed until after a transgender person turns 18.
In his non-binding opinion, Paxton cites a number of sources, including research articles, to bolster his argument. Researchers say some of these citations were inaccurate.
One researcher said Paxton distorted her work for political purposes and that she's "mortified" her research was included in the opinion.
Alexandra Minna Stern, a professor of history at the University of Michigan, studies the history of forced sterilization in the United States. Paxton's office drew a parallel between forced sterilization and gender affirmation surgeries for minors.
"I'm adamantly opposed to this interpretation and it does not align with my research and the conclusions of my research," she said. "If they knew anything about my scholarship more generally, they would know that I am someone whose research demonstrates the harm of the very types of policies they're trying to enact on marginalized people."
The attorney general's office did not return requests for comment.
Paxton faces three Republican challengers in Tuesday's primary: Texas Land Commissioner George P. Bush, U.S. Rep. Louie Gohmert and former Texas Supreme Court Justice Eva Guzman.
Misleading citations
In his opinion, Paxton cited the work of Dr. Cecilia Dhejne, a Stockholm-based researcher, to support the idea that gender-affirming health care could be harmful to transgender children.
Dhejne led a 2011 study that found that transgender people who have undergone gender-affirmation surgery have worse mental health outcomes than the general population.
Dhejne did not respond to a request for comment. However, in the text of the 2011 study, Dhejne and her team caution specifically against using the study to conclude that gender-affirming surgery is problematic, noting that the study did not compare the mental health outcomes of people before and after gender-affirming surgery.
The study's "results should not be interpreted such as sex reassignment per se increases morbidity and mortality. Things might have been even worse without sex reassignment," the study says.
Dhejne and her colleagues wrote instead that the study shows a need for better support for transgender people after they undergo surgery.
Paxton also asserts that there has been a recent "spike" in minors receiving gender-affirming "procedures." He cited the Society for Evidence Based Gender Medicine, an anti-trans advocacy group.
The link in Paxton's citation leads to a graph showing an increase in youth referrals to the United Kingdom's Gender Identity Development Service. That national clinic provides a range of care, including counseling; the number of clinic referrals is not necessarily the number of medical interventions like the legal opinion implies.
Similarly, Paxton's opinion cited the World Professional Association for Transgender Health and said that transgender people should typically be adults before receiving the listed types of gender-affirming care.
In a statement to the Star-Telegram, WPATH said that Paxton applied the citation too broadly. While WPATH does state in its standards of care that genital surgery should typically wait until a transgender person reaches the age of majority, Paxton's opinion applied that standard to less-invasive interventions, too, including puberty blockers.
"It's disheartening to see the Texas Attorney General's opinion referencing WPATH to bolster an overall argument completely at odds with WPATH guidance," the organization said in a written statement. "The citation is accurate but does not apply here because the AG's opinion is arguing against reversible blockers while the cited WPATH content relates to gender affirming surgery."
The legal opinion also includes a list of potential health risks associated with gender-affirming health care. The source for that list, however, is not a research study but a slide presentation made by LGBTQ advocacy organization Fenway Health.
Like nearly all health care, surgical and hormonal interventions are associated with some risks; however, the attorney general's legal opinion appears to inflate some of the risks listed in the Fenway Health source material. Paxton's list includes "hepatotoxicity," which is liver disease, and does not mention that the Fenway presentation includes a question mark after that potential risk. The attorney general's list of risks also includes "serious mental health effects," while the Fenway presentation simply says "mental health effects." The legal opinion names no other sources for its list of potential harms.
Fenway Health did not reply to a request for comment, but has posted on social media opposing Abbott and Paxton's stances, with Fenway's Dr. Alex Keuroghlian saying the stances are "entirely divorced from medical evidence, consensus and mainstream practice."
Questionable parallels
Stern, the University of Michigan professor, said she didn't know that her work had been cited in Paxton's opinion until the Star-Telegram reached out to her. She said she'd never seen her work on forced sterilization used in the way that Paxton's legal opinion used it: to argue against transgender health care for youth.
"They didn't really read the article closely, which is all about the horrors of state reproductive abuse, mainly in institutions. This is not about choices being made with parents and doctors in the child's best interest, so they're really twisting it," Stern said.
But that's not the only section of the legal opinion that has experts scratching their heads.
Paxton's legal opinion also draws parallels between health care for trans youth and the opioid epidemic and factitious disorder imposed on another.
To loop opioids into the conversation, the attorney general essentially argues that there are times when health systems may recommend an intervention that is ultimately harmful to patients.
"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 opinion says.
Jaclyn Hughto, a research professor at Brown University who is not cited in the legal opinion itself, said it was "quite shocking" to see the attorney general draw a parallel between the opioid epidemic and gender-affirming health care.
"It absolutely felt like the intention was to create fear in the general population," Hughto said. "The opioid epidemic is greatly impacting people today and by drawing a parallel, or trying to draw a parallel, it seems like it's intended to make people think that providing gender-affirming care to transgender youth is going to result in all these unintended consequences."
Hughto, whose research focuses on the health of sexual and gender minorities and people living with substance use disorders, said there are several key differences between opioids and gender-affirming care. Most notably, she said, the opioid epidemic was spurred by profit-making pharmaceutical companies that were uninterested in scientific studies. On the flip side, Hughto said, gender-affirming care is sought by parents and medical professionals with the backing of research studies.
"When you actually break down the argument, it very much falls apart," Hughto said.
In the case of factitious disorder imposed on another — a relatively rare occurrence, previously known as Munchausen syndrome by proxy, in which caregivers seek unnecessary and harmful medical treatment for a dependent — the attorney general argues there is a similarity to gender-affirming care because both involve the "imposition of unnecessary medical procedures upon children."
Brenda Bursch, a psychologist and professor at UCLA whose specialties include illness falsification, said in an email that the parallel doesn't track. Factitious disorder imposed on another is harmful to the child, Bursch said, while research has shown that gender-affirming care helps to improve a transgender child's mental health.
"While any child can be the victim of any type of child abuse, appropriately seeking gender-affirming care is protective, not harmful," she said.
The state Department of Family and Protective Services, whose material was cited as the reference for the attorney general's analogy to factitious disorder imposed by another, declined to comment on the use of its material in the opinion. Department spokesperson Marissa Gonzalez said only that the department "will comply with Texas law as described in the opinion and the Governor's directive."
The DFPS' cited material does not compare factitious disorder to transgender health care.
The backdrop
Paxton's legal opinion didn't come out of nowhere.
In August 2021, the office of Abbott asked the state Department of Family and Protective Services to decide whether "reassignment surgery" for transgender youth constitutes child abuse. Several days later, DFPS issued a letter that classified gender-affirming surgery as "genital mutiliation" and child abuse.
In response to DFPS' letter, state Rep. Matt Krause — a Republican from Fort Worth who had previously advanced anti-transgender legislation and who is now running for Tarrant County district attorney — requested in late August that the attorney general's office provide clarification on whether other forms of gender-affirming care also count as child abuse.
Paxton's office took several months to respond to Krause, issuing a legal opinion on Feb. 18. His opinion, which does not change state law, contends that other types of transgender health care for minors also constitute child abuse. Paxton's legal opinion specifically states that prescribing puberty-blocking drugs to minors is child abuse, as is gender-affirming surgery.
Several days later, Abbott issued a letter in support of Paxton's opinion. The governor also directed the DFPS to investigate any claims of such health care as abuse, and wrote that there could be "criminal penalties" for teachers, nurses and doctors who don't report. It's unclear whether such penalties would actually be enforced.
Both Abbott and Paxton framed the move as an effort to protect children, similar to the framing used several months ago when the Texas Legislature passed a bill banning transgender students from participating in sports teams that align with their gender identity.
Over the last week, critics have rejected that framing: More than 30,000 people have signed a petition against the letter and opinion; five Texas district attorneys issued a joint statement decrying the "cruel directives"; the American Civil Liberties Union called the directives, and similar actions in other states, part of "a nationwide crisis of politicians using their power to attack trans kids"; a White House spokesperson denounced the decisions; and the ACLU and Lambda Legal have filed a lawsuit claiming Abbott “trampled on the constitutional rights of transgender children, their parents, and professionals who provide vital care to transgender children.”
