As Texas targets trans kids, their families scramble to find lawyers

click to enlarge Atlas, left, and Sam, right, chant in front of the Texas Capitol during a protest for transgender kids' rights on Tuesday, March 1, 2022. Sam said he came "so kids like me don't have to go through the hard strifes of CPS or health care procedures to feel like themselves." - TEXAS TRIBUNE / LAUREN WITTE
Texas Tribune / Lauren Witte
Atlas, left, and Sam, right, chant in front of the Texas Capitol during a protest for transgender kids' rights on Tuesday, March 1, 2022. Sam said he came "so kids like me don't have to go through the hard strifes of CPS or health care procedures to feel like themselves."
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For the last two weeks, a mom in the Austin area has been vacillating between rage and panic. Some days, she’s so fired up she feels like she could take on the entire state of Texas by herself. Other days, she just crawls under her weighted blanket and lets the fear take over.

The woman, who asked not to be identified to protect her family, has an 8-year-old transgender daughter. In late February, Gov. Greg Abbott directed the state’s child welfare agency to open child abuse investigations into parents that provide gender-affirming care to their children.

This family hasn’t had a visit from Child Protective Services, but they know others who have and they’ve started preparing for the possibility that they could be next.

They’re trying to figure out how to explain all this to their daughter, who they’ve tried their best to keep insulated from the growing anti-trans backlash.

“Sadly, that’s going to change,” she said. “We’re going to have to have a conversation with her about somebody potentially coming to her school and trying to talk to her.”

Even though they have no reason to believe that they’re going to be investigated, the family has started speaking with a lawyer who specializes in LGBTQ family law.

“It would put my mind at ease to know that I have a human being I can call, a sort of a helpline if somebody shows up at my door, somebody that already knows my family,” she said.

This mom isn’t alone. The Texas Tribune talked to seven families with transgender children who have proactively hired lawyers as a result of this directive. None were willing to give their names, fearing that someone might report them if their identity became known.

And lawyers who specialize in LGBTQ family law say the number of families reaching out in fear of potential child abuse investigations is unlike anything they’ve ever seen.

Last week, Ian Pittman’s phone started ringing. And it hasn’t stopped since. Pittman is based in Austin and, as a family lawyer specializing in LGBTQ issues, works in a growing and underserved sector.

“But I have never gotten this many phone calls or requests for consultations,” he said. “The number of people who have called has exponentially increased … and the common thread is that everybody feels terrorized.”

This latest wave of fear among parents of trans kids started two weeks ago, when Texas Attorney General Ken Paxton issued a legally nonbinding opinion equating certain gender-affirming medical treatments for transgender children with child abuse. Abbott followed up with a letter directing the state’s child welfare agency to open investigations into “any reported instances of these abusive procedures.”

Most gender-affirming care focuses on “social transition” — allowing a child to express their gender however they see fit. Some transgender children take puberty blockers, a completely reversible medical treatment that's prescribed for a wide range of situations beyond transition. Paxton and Abbott also cited concerns over gender-affirming surgeries that are rarely, if ever, used on children.

In a court hearing Wednesday, a lawyer for the state argued that the directive is not intended to mean that the use of puberty blockers or gender-affirming surgery is always abuse, rather that it could be used in an abusive manner.

But anyone can make a report of child abuse, anonymously, and the state has to investigate, meaning parents could face an investigation for any number of reasons.

Pittman is representing two clients who are currently facing investigation by Child Protective Services. Though the reports are anonymous, he said he has reason to believe at least one of the allegations was politically motivated.

The family’s address on the report was one they haven’t lived at for years, ever since it was released publicly as part of a doxxing campaign against trans activists.

Pittman and other lawyers say they’ve also been deluged with calls from families who haven’t yet been contacted by CPS but want to be prepared. He said one family was preparing to start their child on puberty blockers and wanted his opinion on whether they should wait.

“I've never before had to consult parents of children about whether or not they should follow doctor's orders,” the attorney said. “The fact that they think that they need to get a legal opinion about whether to follow medical advice is mind-boggling.”

Many lawyers and advocates are hopeful that this directive will be struck down by the courts. A state judge on Wednesday intervened to stop an ongoing investigation into the parents of a 16-year-old transgender teenager and scheduled a hearing for next week to consider a statewide injunction.

Paxton filed an appeal Thursday, so rather than having that hearing next week as planned, there is a temporary hold on the injunction hearing until the higher court rules.

And while that all gets sorted out, there are at least two other ongoing investigations — and the real number may be much higher. A spokesperson for the Texas Department of Family and Protective Services did not respond to a request for comment on the number of reports the agency has received and the number of ongoing investigations.

DebnamRust, a Dallas law firm that specializes in LGBTQ family law, is currently working with five families, some of whom are currently under investigation by CPS. Attorney Derek Mergele-Rust said these families are not willing to just wait for the courts to sort this out while their lives hang in the balance.

“There is a palpable fear from parents who are afraid their kids are going to be taken away from them and they're going to be labeled as child abusers,” said Mergele-Rust. “If you're labeled as a child abuser and you are a licensed professional in the state of Texas, you can't do your job anymore … there are far-reaching consequences on parents’ lives, too.”

Mergele-Rust and other lawyers interviewed for this story stressed the importance of starting to build a relationship with an experienced family law attorney now, even if CPS hasn’t gotten involved yet.

“You need a plan,” he said. “A lot of parents are being encouraged to gather documents from doctors and the schools stating that the children are fine and they’re following doctor’s care, things of that nature.”

Families may also need more than one LGBTQ-affirming family lawyer on speed dial. As is typical in child abuse cases, the children need a different lawyer than the parents; ideally, in these cases, they want those lawyers in person during the interviews.

There is some light on the horizon for these families: In just the past week, Lambda Legal and the National Center for Lesbian Rights have heard from hundreds of child welfare lawyers statewide who are stepping up to provide pro bono or low-cost representation to these families.

NCLR legal director Shannon Minter, a trans man who lives in East Texas, said that support has been inspiring to see — and horrifying that it’s necessary.

“This is the worst thing I've ever seen happen … to LGBTQ people in my 30 years of practicing in this area of law,” Minter said. “It's such a blatant fiction to try to say that supporting a transgender kid is abuse.”

Minter encouraged families to call Lambda Legal or the NCLR to get in touch with a lawyer sooner rather than later.

“Once you're in the clutch of the child welfare system, you're very vulnerable,” he said. “You don't want to have to, at that point, be wasting time and energy looking for a lawyer after you're already targeted.”

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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