Don’t Pre-Comply: Gender-Affirming Mental Health Care is Still Legal in Texas
Protesters opposing bills that would limit transgender kids’ access to puberty blockers and hormone therapies rally at the Texas Capitol on March 1, 2023. Lauren Witte/The Texas Tribune
I wrote this blog post back in June, but didn’t publish it ‘til now because 1) I was waiting for the official response from ACLU of Texas, and 2) it’s been real busy over here. I’ve since updated the post to reflect that official response, as well as a comment made by the Executive Director of BHEC* in a public meeting on June 16.
We didn’t make it even 3 full months into the year before having to clarify that therapists can (and should) support trans youth in Texas. NOT GREAT. Here’s what happened:
In early March, Texas Attorney General Ken Paxton published his opinion that SB 14, the 2023 law banning gender-affirming medical care for minors in Texas, also bans gender-affirming mental health care.
Many therapists and trans advocates in Texas immediately called this out for what it is: 1. bullshit, 2. not legally binding, and 3. attempted legal overreach to appeal to his MAGA base on the eve of the Primaries, where he was on the ballot (and won).
Our professional orgs—Texas Counseling Association, Texas Association for Marriage and Family Therapy, the Texas Society for Clinical Social Work, and the National Association of Social Workers - Texas Chapter—issued a joint statement disagreeing with Paxton’s opinion and clarifying therapists’ “ethical responsibility to respect, honor, and recognize the identities and lived experiences of all clients, especially transgender and gender-diverse people. We will continue to advocate for the dignity, safety, and rights of transgender people in Texas.”
In mid-March, BHEC sent a Friday-late-night email to all licensed mental health providers in Texas offering "Guidance" to licensees re: Paxton's opinion. This guidance was "provided for general informational purposes only" and seemingly agreed with Paxton's Opinion. It included the following nuggets, as well (emphasis added):
"Licensees must exercise professional judgment grounded in scientifically and professionally derived knowledge. Questions concerning the safety and efficacy of certain gender-affirming medical interventions for minors remain the subject of ongoing scientific debate and review. [Editor: NO TF THEY AREN'T] ... Licensees should not rely solely on advocacy materials, policy statements, or position papers that may intermix scientific assertions with policy or political perspectives, but instead should evaluate the quality and sufficiency of the underlying evidence when forming professional judgments."
The footnote: "This guidance document does not establish a new policy or practice standard. Rather, it reflects longstanding professional standards that prohibit licensees from assisting or facilitating a client’s participation in conduct that is unlawful." [Editor: I believe this is BHEC talking out both sides of their mouth/covering their asses, as this whole document would be unnecessary if it weren’t establishing a new practice standard.]
On June 1 (though I didn’t see it until late July), the ACLU, Lambda Legal, PFLAG, and ACLU of Texas released a “Know Your Rights” fact sheet for therapists in Texas. This fact sheet stated in no uncertain terms that:
The Attorney General’s opinions are interpretations with no legal force, citing the Texas Supreme Court’s statement in Abbott, No. 22-0229 that attorney general opinions do not “create or change legal obligations.”
Conversations between a therapist and client are considered speech and is therefore protected by the First Amendment.
Mental health professionals are not legally obligated to change anything about how they provide counseling/therapy to transgender youth.
Additionally, Lambda Legal encouraged mental health providers in Texas who have received any threats from their licensing board or to their funding or employment to immediately contact them here.
In the BHEC public meeting on June 16, Darrel Spinks, the Executive Director of BHEC responded to a request for clarification regarding the recent SCOTUS decision in Chiles v. Salazar. He said “The government can no longer engage in viewpoint discrimination in the confidential setting of talk therapy, counseling, psychotherapy, whatever you call it.” He continued to call it a “watershed moment” and clarified that BHEC and the Licensing Boards will no longer be telling us what we can and cannot say in the counseling room. Mr. Spinks said they aren’t going to say we “can’t practice CBT or conversion therapy or gender-affirming care.”
What we’ve seen so far is a lot of confusion and fear from therapists, particularly queer and trans therapists, which is understandable. That said, we can use this opportunity to strengthen our networks, educate our communities, and prepare ourselves and our clients for even more anti-trans bills in the legislative session next year.
To therapists who call themselves allies: this is the time to stand tall and loudly re-affirm your commitment to queer and trans clients. Go to trainings. Educate yourself on LGBTQ+ rights, history, and liberation. Join and/or donate to queer- and trans-led local orgs and businesses (like ours!). Remember that allyship requires ACTION, not just words.
*BHEC is the Behavioral Health Executive Council, oversees the 4 Boards of licensed mental health therapists in Texas; these boards oversee all LPCs, Social Workers, LMFTs, and Licensed Psychologists in the state. Note: the Directors/members of BHEC and all 4 Boards are selected/approved by Governor Greg Abbott.