Neither Texas law nor CPS policy currently mentions gender-affirming medical treatment. Some 2022 directives from the Texas executive branch raise questions about the duty to report specific types of medical care to the Department of Family and Protective Services, and about how the Department will handle investigations, removals, and services for families with transgender youth.
What is the legal effect of the Texas attorney general’s opinion on gender-affirming medical care?
One of the attorney general’s jobs is to interpret state law when asked by Texas government officials. On February 18, 2022, the Texas attorney general issued an opinion letter answering the question of whether certain types of gender-affirming medical care could constitute child abuse under existing Texas law. The attorney general’s opinion was that yes, certain types of gender-affirming care could meet the definition of child abuse. The full opinion can be found here.
The opinion does not say that gender-affirming medical care is always abusive. A court must look at the facts in each specific case and decide.
An attorney general opinion does not create new law or change existing law in Texas. It is an opinion on how the existing law might be interpreted. Although a court can consider an attorney general opinion when deciding a case, a court is not required to follow it.
What is the legal effect of the governor’s directive to the Department of Family and Protective Services?
Shortly after the attorney general issued his opinion letter on gender-affirming care, the governor issued a directive ordering the Department of Family and Protective Services to investigate reports of children receiving gender-transitioning procedures. The governor’s letter can be found here.
The governor oversees all executive agencies, including the Department of Family and Protective Services, and executive agencies generally follow a governor’s directions. However, governors do not have the power to change state law through a directive, and there are procedures that generally must be followed when creating new agency rules and policies.
Prior to the directive, the Department of Family and Protective Services had never investigated families for providing gender-affirming care to their children, but after the directive, some investigations began. This has created a legal question about whether the governor’s directive was within his powers, and that is the basis of the ACLU and Lambda Legal lawsuit. You can find more information about the lawsuit below.
When should a person report suspected child abuse and neglect to the Department of Family and Protective Services?
The answer depends on whether a person is a member of the general public or a licensed professional.
Texas law says that any person with reasonable cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect must immediately report it. This law applies to everyone in Texas.
A professional reporter is any person who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state, and who has direct contact with children while doing their job or using their license or certification. Common professional reporters are doctors, nurses, and teachers.
Texas law says that professional reporters must make a report within 48 hours if they have reasonable cause to believe that a child:
has been abused or neglected, or
may be abused or neglected, or
was abused and is a victim of criminal indecency with a child.
Texas law says that a person or professional who knowingly fails to make a report could be charged with a crime. Depending on the situation, it is a Class A misdemeanor or a state jail felony. Professionals may also face the loss of their license or certification.
*For more information on reporting requirements, see below.
Do all reports of child abuse result in a Child Protective Investigation?
No, many reports will not result in an investigation. The intake worker will assess the information given and decide whether to refer it to the local Child Protective Investigations office.
The intake worker will look for information that suggests:
The child has been abused or neglected and is in danger of further abuse or neglect, or
There is a reasonable likelihood that the child will be abused or neglected soon
If there is no material harm or risk of harm to a child, the case might be closed out without further action.
The Department of Family and Protective Services has not yet created policies on handling reports of gender-affirming medical care. Still, reports of this nature have been made, and investigations have been opened based on those reports.
What usually happens during a Child Protective Investigation?
Historically, families have not been investigated by Child Protective Investigations for providing medically necessary gender-affirming care to their children, so it is difficult to guess what information might be requested and what questions will be asked by an investigator.
It is likely the investigator will want to speak with the child privately and ask whether the child feels safe. The investigator may ask the child or caretakers about what types of medical care the child is receiving.
The investigator may ask the family to sign a medical release to allow the Department to review a child’s medical, psychological or psychiatric records. The investigator may also ask a parent or child to submit to a psychological or medical evaluation.
Read more about what to expect during a Child Protective Investigation at Child Protective Services Article 2 of 7: Investigation Phase.
Remember, an investigator is not required to investigate only the allegation that was reported. For example, if a report is made that a child is receiving gender-affirming medical care, and the investigator finds that the parent has a history of drug use, it is likely that the investigator will ask that parent to submit to a drug test. The results of that test could be a reason for the investigator to ask the family to “work services " (such as drug treatment, counseling, or parenting classes) or remove a child.
Does a parent or caretaker have to cooperate with a Child Protective Investigation?
No. Unless there is a court order saying otherwise, a parent or caretaker is not legally required to:
speak with the investigator,
submit to a drug test,
allow the investigator to come into their home,
allow the investigator to speak with their child or visually examine their child
allow the investigator to review their or their child’s medical or psychological records, or
allow the investigator to transport their child.
But Child Protective Investigations can get a court order to do some of these things even if the parent or caretaker does not consent.
What might happen if I do not cooperate with a Child Protective Investigation?
The Texas Family Code says that a judge can give the investigator the legal right to:
come into a child’s home or school or other location to interview and examine the child and investigate
to review a child’s medical, psychiatric, or psychological records, or
to complete a medical, psychological, or psychiatric exam.
These orders are called Orders to Aid Investigation; the investigator need only show the judge “good cause”–meaning, a good reason.
The law also says that if, during an investigation, a person interferes by moving without telling the investigator or hides the child, they could be charged with a Class B misdemeanor.
If an investigator has reason to believe that a person might take a child outside of the state before an investigation is complete, the Department may request a Temporary Restraining Order to keep the child in Texas.
Every situation, every investigator, every county, and every Child Protective Investigation is different. Just because a person has the right to not cooperate with Child Protective Investigations does not mean that they should ignore the investigation or refuse to work with the investigator. Depending on the facts of the situation and the evidence the investigator has already collected, this could result in a child being legally removed from the home and even placed in foster care.
A person who is being investigated for child abuse or neglect always has the right to consult with an experienced child welfare attorney to help them decide what to do.
Can I be forced to complete CPS services if CPS does not have legal custody of my child?
It is possible. If an investigator believes a child is unsafe, the law states that CPS must make “reasonable efforts” to avoid removing the child. This means CPS has to try other things if it is safe to do so—before jumping to legal removal. CPS has several things they can try: common options are asking a family to voluntarily participate in Family-Based Safety Services (FBSS) or asking a judge to sign an Order for Required Participation.
Neither Child Protective Investigations nor CPS can force you to do anything without a court order. But every situation is different, and refusing to cooperate with CPS could cause them to take more drastic action to protect a child.
If you are unsure whether to agree to work services, sign a safety plan, or take any other action, you always have the right to consult with an experienced child welfare attorney.
You may contact the Family Helpline (TLSC) at 844-888-6565 to speak with an experience child welfare attorney. The Family Helpline does not provide legal advice or representation but provides free legal information to educate the public about child safety and CPS law and policy.
What does "Family-Based Safety Services" mean?
Family-Based Safety Services (FBSS) is a voluntary program where a parent or caretaker can agree to participate in services such as drug treatment, parenting classes, or counseling. It is also common for CPS to ask the parent or caretaker to sign a safety plan agreeing to do or not do certain things to keep a child safe. You can read more about FBSS here: Child Protective Services Article 3 of 7: Family-Based Safety Services Phase.
What is an Order for Required Participation?
An Order for Required Participation (also sometimes called Court Ordered Services or Motion to Participate) is a program where a judge can order a parent or caretaker to participate in services to address the safety concern. A judge may also order a parent or caretaker to follow a safety plan. An indigent (low-income) parent can request a court-appointed attorney to represent them. You can read more about Required Participation here: texaschildrenscommission.gov
I have heard that CPS cannot remove a child from a family without a court order; is that true?
Not exactly. Although CPS cannot take legal custody of a child for an extended period without a court order, there are certain emergency situations where CPS may remove a child without a court order. This is called an “exigent circumstance” removal.
“Exigent circumstances” means that there is reasonable cause to believe a child is in imminent danger of physical or sexual harm. CPS is required to get a court order within one business day of the exigent circumstances removal.
Even without exigent circumstances, all legal removals are handled quite urgently. The hearing where CPS asks a judge to grant them the right to remove a child usually happens very quickly. The parent or the parent’s attorney may not be able to attend and give their side of the story before the judge agrees to remove a child.
The law says that an adversary hearing must be held within 14 days of the removal date. This hearing is often the first chance a parent and the parent’s attorney can attend court and present evidence about why the removal was inappropriate. The child may have been out of the home or in foster care for two weeks by this time.
To read more about what CPS has to prove to legally remove a child, see:
Some district and county attorneys say they will not remove children based on the opinion or order. Are trans youth in those counties protected from removal?
Not necessarily. Although the Department of Family and Protective Services is often represented by a County or District Attorney, the Department also employs its own attorneys. These attorneys could file a case on behalf of the Department even if the local prosecutor refuses.
Where can I find information for transgender youth and their families?
Many organizations across Texas educate the public about LGBTQIA+ rights and support transgender youth and their families. Some of these organizations include:
- Resources for Transgender Youth in Texas (txtranskids.org)
- Out Youth
- TransYouth Family Allies (imatyfa.org)
For LGBTQIA+ mental health support, call the Trevor Project’s 24/7 hotline at 866-488-7386.
I am worried that CPS may contact my family because of this new directive. How do I prepare?
Child Protective Investigations can happen suddenly and move quickly, but there are several things a family can do to prepare.
A family can reach out to an experienced child welfare attorney ahead of time. This way, if the family is contacted by an investigator, they will know immediately who to call. There is a list of legal assistance resources below.
Trans Youth Family Allies has information on how to create a "safe folder" that includes all necessary medical information: Safe Folder (imatyfa.org)
A family may want to have a conversation with their children, other friends, and relatives about how discussing certain types of gender-affirming medical care or posting about it on social media could result in a report of child abuse.
A family can educate themselves and their children about their right to refuse consent if an investigator asks to:
speak with and examine a child at home or at school
speak to a parent or caregiver
come into the home to investigate.
You can read more about consent during a Child Protective Investigation here: 2200 Basic Investigation Process (state.tx.us)
A family should also educate themselves on what steps CPS might take next if the family refuses to consent.
Anyone with questions about Child Protective Investigations can call the Family Helpline (TLSC) at 844-888-6565 for free legal information.
My family has been contacted by Child Protective Investigations; where can I find legal assistance?
Several organizations in Texas and nationwide have begun mobilizing local attorneys to provide services to trans youth and their families who are contacted by Child Protective Investigations. These include:
Lambda Legal Help Desk - South Central Regional Office: 214-219-8585
ACLU of Texas: aclutx.org
Family Helpline (TLSC): Any person in Texas who has questions about child welfare law and policy, including Child Protective Investigations, may contact the Family Helpline (TLSC) at 844-888-6565 to speak with an experienced child welfare attorney. The Family Helpline does not provide legal advice or representation but provides free legal information to educate the public about child safety and CPS law and policy.
I heard that the ACLU and Lambda Legal filed a lawsuit; does this change anything?
You can read more about the lawsuit here:
- Lambda Legal, ACLU Sue to Block Texas From Investigating Parents Who Support Their Transgender Kids (from Lambda Legal)
- Doe v. Abbott | American Civil Liberties Union (aclu.org)
You can follow the news media or speak with an attorney to learn about the status of the case. It is common for these types of cases to involve several hearings and appeals, so the status may change from week to week.
*Legal Requirements and Considerations Regarding Reporting
How do you know if a child’s gender-affirming medical care should be reported to the Department of Family and Protective Services?
This is a difficult question, and there are no clear answers. Each situation will be different. There are several questions you can ask yourself if you are trying to decide whether to report a family or child:
1) Does the child's medical treatment fall into one of the categories addressed in the Attorney General's Opinion?
The Attorney General's opinion does not apply to all medical or mental health care provided to transgender or otherwise LGTBQIA+ youth. It only addresses:
Surgical "gender reassignment surgeries" or "sex change procedures" that could result in sterilization
Surgically removing healthy or non-diseased body parts or tissue
Puberty suppression or puberty-blocking drugs
Supraphysiologic doses of testosterone to females and supraphysiologic doses of estrogen to males
Children are entitled to general medical and mental health care, regardless of their status as transgender youth. Texas law says that it is child neglect if a parent or caretaker fails to seek, obtain, or follow through with medical care, and that failure results in a substantial risk of death, bodily injury, or a material impairment to the child's growth or development. See Texas Family Code 261.001(4).
2) Do I believe this situation is abusive or neglectful?
The Attorney General's opinion specifically lists four definitions of child abuse that could apply to certain types of gender-affirming medical care. The general idea is that a child has been abused if their body, growth, development, or psychological functioning is harmed in an observable or material way. If this is not the case, the situation may not be abusive.
(Note that professional reporters have an added duty to report if they have reasonable cause to believe a child may be abused and neglected, even if the harm has not yet occurred.)
There are many other definitions of child abuse and neglect in Texas law; these can be found in Texas Family Code 261.001; however, they were not mentioned explicitly in the opinion from the attorney general's office or directive from the governor.
3) Do I have reasonable cause?
The law is clear that, before making a report, a person must have reasonable cause to believe a child's physical or mental health or welfare has been adversely affected by the abuse or neglect. "Reasonable cause" is open to interpretation, but the language suggests that any report of child abuse should be based on a fair assessment of the situation. If a person makes an assumption based on little or no evidence, the report may not be based on reasonable cause.
It is a crime to make a false report of child abuse or neglect. This means that if you make a report that you know is untrue, and you make the report to try to deceive the Department of Family and Protective Services, you could be charged with a felony.
4) Is the treatment medically necessary?
The attorney general's opinion says that it does not address or apply to medically necessary procedures. The governor's directive does not use the same language, but it does refer to the attorney general's opinion. This creates a question about whether medically necessary procedures must be reported to the Department.
It will be difficult for most people to determine whether a procedure is medically necessary. It is a doctor's job to decide this for each patient. Two doctors may have two different opinions about the same patient, and two patients may receive completely different medically necessary care.
Whether medically necessary treatment must be reported and investigated will continue to be unclear until the Department of Family and Protective Services addresses it in their policy, courts address it through case law, or the Texas legislature addresses it through statute.
Child Protective Services (CPS)
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