The Sad, Bad, Mad, and Pathetic Crusade Against Transgender Texans

A 2017 study by the Williams Institute at UCLA estimated that there were then 125,350 transgender adults in Texas, and an additional 13,800 transgender minors between the ages of 13-17. Those amount to about two-thirds (2/3) of one percent (1%) of the Texas population.

With such small numbers, why all the fuss about transgender Texans?

The peculiar psychopathies of Texans terrified of their gender-fluid fellow humans are beyond the scope of this essay, and for that matter beyond the scope of human understanding. But for at least a decade now, right-wing Texans  and their elected officials have waged war on transgender people and, specifically, children. The attacks have become so cynical and brazen that Ross Ramsey – one of Texas’s most respected journalists and the normally unflappable Executive Editor of the Texas Tribune, recently wrote:

Greg Abbott and Ken Paxton are turning the law-and-order Republican Party into a gang of bullies, targeting transgender kids — and the parents who support them — with their decision to treat gender-affirming health care as child abuse.

That health care is legal under Texas law, but this is election season. Cynics who think politicians will say anything to get reelected have a new, sparkling piece of evidence. …

Other people caught doing what the governor and attorney general are doing — Texas public school students, for instance — risk breaking the law. Check out the definition of illegal bullying in the Texas Education Code: “Bullying means a single significant act or a pattern of acts by one or more students directed at another student that exploits an imbalance of power and involves engaging in written or verbal expression, expression through electronic means, or physical conduct …”

The War on Transgender Texans

For over a decade, the battle against The Impending Collapse of Worldwide Moral Order[i] has been fought on several fronts in Texas:

Nondiscrimination policies, which prohibit discrimination based on race, creed, color, ethnicity, or (increasingly) sexual orientation or identification. Such policies would seem “self-evident,” to borrow a phrase from a document with which you are probably familiar. They were pretty standard fare until their inclusion of LGBTQ+ populations brought them to the alarmed attention of Christian conservatives. In a demonstration that irony is not dead, they assailed such policies – whether couched in public regulations or corporate H.R. manuals – as infringing upon their religiously-protected bigotry. As a result, the Legislature has, for more than a decade, tried (so far unsuccessfully) to prohibit such policies, particularly for local governments and school districts.

“Bathroom bills,” requiring that multi-person bathrooms (schools, offices, gyms, restaurants, etc.) could be used only by persons corresponding to their gender assigned at birth. The fact that this was a non-issue did not diminish enthusiasm for the battle. In 2017, Lieutenant Governor Dan Patrick made passing a “bathroom bill” to protect the womenfolk his first priority, and when a bill did not pass in the regular session, sabotaged an unrelated but necessary bill to force Governor Abbott to call a special session. House Speaker Joe Straus, however, put his foot down in the special, rebuffing the Senate’s proposals and adjourning the House early before yet another Senate proposal could be received.[ii]

Republicans also focused their attention on young people:

Prohibitions on transgender athletes. Abbott included the subject in all three special sessions he called last summer. (In a special session, the Governor determines what subjects can be considered by the Legislature.) Again, this was a nonexistent problem, but excellent red meat for the base. Eventually, he was successful: House Bill 25, signed last October, requires students to participate on sports teams that correspond with the sex listed on their birth certificate rather than their gender identity.

Branding gender-affirming treatment as “child abuse.” During the regular session last spring, six bills were filed to restrict or punish gender-affirming treatment for minors, most of them by arbitrarily declaring such treatment as “child abuse.” None of them passed. During three special sessions over the summer and fall, conservative legislators filed a slew of bills, which also went nowehere.

Frustrated with the lack of progress – and nervous about a tightening primary race for Governor – Abbott wrote the Commissioner of the Department of Family and Protective Services (DFPS) in August, asking her to agree with him that gender-affirming treatment for minors met the statutory definition for “child abuse.” The Commissioner’s nuanced response was insufficient for his purposes, and so State Rep. Matt Krause, then contemplating a race for statewide office,[iii] requested an Attorney General Opinion as to “whether sex change procedures performed on children without medical necessity constituted child abuse.”

The AG Opinion and the Jane Doe et al. v. Abbott et al. legal challenge

On February 18 of this year, he got his answer. Attorney General Ken Paxton issued a non-binding Opinion which, in simple terms, stated “parental support or medical/psychological treatment for gender dysphoria = child abuse.” Taking his cue – and six days before the primary election, which is a completely irrelevant fact – Abbott ordered the DFPS to “conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas.”

DFPS opened at least nine investigations, including one on a DFPS employee in the Austin area who was suspended from her job pending the investigation. Lawyers acting on behalf of the her family filed a lawsuit seeking to block it. The employee and her family had never previously been accused of any abuse: according to the lawsuit, “[t]he CPS investigator disclosed that the sole allegation against Jane Doe and John Doe is that they have a transgender daughter and that their daughter may have been provided with medically necessary gender-affirming health care and is ‘currently transitioning from male to female.’" (emphasis mine)

On March 2, a Travis County judge issued a temporary restraining order (TRO) halting the investigation and scheduled a hearing for March 11 on two issues: whether the investigation should be halted pending further litigation, and whether the temporary halt should apply statewide. The Attorney General’s office immediately appealed the TRO, but the AG’s appeal was rejected by an appeals court.

The issue in the case: since the Legislature was given opportunities to amend the law and declined to do so, could the Governor make such a determination sua sponte, even hiding behind a friendly AG Opinion?

On March 11, after taking testimony all day long, District Judge Amy Clark Meachum granted a temporary injunction, ruling that Abbott’s order was “ultra vires, beyond the scope of his authority, and unconstitutional.”

The Governor's Directive was given the effect of a new law or new agency rule, despite no new legislation, regulation or even stated agency policy. Governor Abbott and Commissioner Masters’ actions violate separation of powers by impermissibly encroaching into the legislative domain.

Judge Meachum set July 11 as the trial date for a permanent injunction and ordered that her temporary injunction remain in place until that time. Paxton immediately announced he will appeal the ruling, noting it was a “Democrat [sic] judge” who issued the ruling and promising to “win this fight to protect our Texas children.”

From both Paxton’s and Abbott’s perspectives, this may not be a bad outcome. As in many culture war battles, victory lies in manufacturing outrage, motivating voters, and generating contributions – not in getting results. Paxton has a runoff election on May 26, and this will be fodder for countless emails and fundraising appeals. He will do all he can to keep the case, and the larger issue, front and center in voters' minds.

Abbott is sitting pretty these days. He got 66% of the vote in last week’s GOP primary, which, to be honest, is the only thing he’s cared about for the last four years. He was sweating bullets last spring when his feckless handling of COVID-19 combined with Winter Storm Uri to collapse the façade of competence he’d cultivated. Soon he had two credible opponents for his anticipated 2022 reelection: Don Huffines and Allen West.

Incompetence is not usually a problem; Texans don’t expect much from their government, and certainly not from their governors.[iv] Abbott’s weakness, they argued, was that he was not Republican enough. And one of their talking points was the state’s unwillingness or inability to curb the scourge of transgender children. Huffines: “End the sexualization of children being done by radicals who promote gender reassignments for minors.” West: “We must end child gender modification in Texas. … We must stop the indoctrination of our children with this dangerous delusion and mental illness called gender dysphoria.”

As a strategy, cruelty is hard to beat for GOP primary voters, whether it’s directed against transgender people, gays, immigrants, college professors, or others. It reliably generates fundraising, especially the small-dollar contributions that are increasingly important, and drives voter turnout. Hence a gubernatorial primary battle featuring three candidates vying to be the most vicious cultural warriors. In the end, Abbott’s proven record of punching down on powerless constituencies won the day – and the renomination.

Abbott seems poised to win a modest victory in the general election this fall. He is rumored to be considering a presidential run in 2024, and undoubtedly sees Florida Governor Ron DeSantis as a key foe. Already the two are working hard to see who can be more cruel to immigants. Or, as this headline says, “DeSantis and Abbott working hard to see who can be more cruel to immigrants, faith leaders contend.”

For many Texans, and particularly transgender children, that means another two years of victimization by a state government that is supposed to protect them.

[i]                 The Impending Collapse of the Moral Order Worldwide is, of course, a hysterical construct that has justified hero-worship of brutal autocrats like Vladimir Putin, Viktor Orbán and Tucker Carlson, in the latter’s case mainly because of self-loathing.

[ii]                The inside story of how Straus, facing overwhelming pressure from the GOP base, almost single-handedly killed the bathroom bill will someday be included in a Texas version of Profiles in Courage. Unfortunately, we’ll have to wait for at least a couple more examples before someone can write that book.

[iii]                 Krause announced his candidacy for Attorney General in mid-September, but dropped out after Congressman Louie Gohmert entered the race two months later. Krause wisely concluded that, when it came to flanking Paxton on his MAGA right, no one could out-Gohmert Gohmert.

[iv]                 At a planning meeting for senior staff after Ann Richards became Governor in 1991, her chief of staff discussed a recently concluded poll to determine Texans’ expectations of their new governor. The topline result: not much. Thus it has always been.