From Exceptionalism to Relationality: Responding to Mandatory Reporting in Texas Anti-Trans Directives

Abstract

This manuscript responds to recent directives in Texas that would define the facilitation or provision of gender-affirming medical treatment for minors as “child abuse.” Specifically, we focus on the use of these directives to widen the scope of mandatory reporting laws. We briefly discuss the politics of mandatory reporting and the strategic appropriation of feminist, anti-violence narratives. We then critically analyze social work resistance to the Attorney General's opinion through a lens of exceptionalism. Finally, we discuss abolition feminism as a guidepost for critically questioning our field's allegiance to mandatory reporting as an ethical and evidence-based practice.

Introduction

On February 18, 2022, Texas Attorney General (AG) Ken Paxton sent an official opinion to Matt Krause, Chair of the House Committee on General Investigating, providing a legal rationale for defining the facilitation or provision of gender-affirming medical treatment for minors as “child abuse” under the Texas Family Code (Paxton, 2022). Four days later, Governor Greg Abbott affirmed Paxton's opinion and instructed the Texas Department of Family and Protective Services (DFPS) to investigate instances of youth being “subjected to” trans-affirmative care in Texas, reminding DFPS of the state's mandatory reporting laws (Abbott, 2022). These communications, which widen the scope of mandatory reporting in Texas, are part of a national wave of state opinions, court cases, and proposed legislation targeting trans youth and their families.

In this paper, we briefly review the politics of mandatory reporting laws and the strategic appropriation of feminist, anti-violence narratives in service of carceral expansion. We then critically analyze social work resistance to the AG's opinion through a lens of exceptionalism. Finally, we discuss abolition feminism as a guidepost for critically questioning our field's allegiance to mandatory reporting as an ethical and evidence-based practice.

Mandatory Reporting

Mandatory reporting (MR) refers to policies that require people to report known or suspected child abuse or neglect of children to authorities (Child Welfare Information Gateway, 2019, p. 1). While MR is a prominent feature of the family policing system today, it is a relatively recent invention. In 1962 Henry Kempe and colleagues published a medical profile for a child with “battered child syndrome,” asserting that physicians had a duty not to “permit” children who met the profile to experience repeated abuse (Kempe et al., 1962). This report prompted a wave of MR laws targeting medical professionals (Kalichman, 1999). By the early 1970s, the number of responsible professions and the definitions of abuse had significantly broadened.

Despite limited evidence of its efficacy for violence prevention and intervention (Itzkowitz & Olson, forthcoming), MR has become fixed into law effectively functioning as a carceral technology. In 1974, the Child Abuse Prevention and Treatment Act tied federal funding to the adoption of state mandatory reporting laws (Raz, 2020). The number of MR laws increased, accompanied by reporting hotlines, statutes criminalizing non-reporting, registries for reported parents, law enforcement cross-reporting policies, and investments in predictive risk modeling technologies.

Today, MR policies have created a highly discretionary surveillance system that criminalizes parents, destabilizes families, compromises survivor agency, and decontextualizes abuse and neglect from structural disinvestment. Low-income families and families of color face a disproportionate risk of being reported for reasons including more frequent engagements with MR professionals (Roberts, 2002), statutory omissions of poverty and cultural considerations, statutory ambiguity, inadequate training (Itzkowitz & Olson, forthcoming), and racial bias in the mandatory reporting decision-making process (Dettlaff et al., 2020; Miller et al., 2013). Even when unsubstantiated, reports can result in adverse consequences for families and communities, including but not limited to home invasion, registration on state databases that increase the risk of future investigations and removals, and incarceration (Fong, 2020). Studies show that children are aware of the adverse consequences of being reported, including family deportation (Bergen & Abji, 2019), and incarceration (Jensen et al., 2005; Matthew et al., 2019).

Appropriating Feminist Politics of Violence against Women

Efforts to define gender-affirming medical interventions as child abuse is an explicit attack on trans lives that has been perversely advanced on the grounds of preventing violence against women. These efforts lean on carceral feminist rescue initiatives that have long activated punitive responses with detrimental outcomes. Just as Bernstein (2010) points to an unlikely relationship between feminists and conservative Christians who facilitated anti-sex trafficking initiatives and interventions largely through rescue raids and criminal justice sanctions, Abbot and Paxton appropriate elements of carceral feminist discourses to expand the definition of child abuse and the scope of MR. In 2015 and 2022, conservative legislators in Texas invoked violence against women as a rallying cry for support of the anti-trans legislation. In 2015, opponents of the “bathroom ordinance” in Houston framed transgender rights as violence against women (Goodman, 2022), arguing that the bathroom legislation would sanction men to enter women's bathrooms, placing women at risk of sexual violence. Then in 2022, Governor Abbot and AG Paxton summoned sexual violence by comparing gender-affirming interventions for youth to forced sterilizations of racialized and minoritized people, effectively weaponizing Black feminist analyses by appropriating narratives associated with the struggle for reproductive justice; all in service of criminalizing gender-related bodily autonomy. Paxton (2022) wrote:

Historically weaponized against minorities, sterilization procedures have harmed many vulnerable populations, such as African Americans, female minors, the disabled, and others. These violations have been found to infringe upon the fundamental human right to procreate. Any discussion of sterilization procedures in the context of minor children must, accordingly, consider the fundamental right that is at stake: the right to procreate. (p. 3)

Abbott's top campaign strategist's comment to reporters that “the issue of ‘genital mutilation was a political winner” (Goodman, 2022) provides a transparent admission of the rhetorical strategy to usurp justice-oriented scripts in service of carceral and anti-trans legislation.

As OAG Opinion No. KP-0401 makes clear, it is already against the law to subject Texas children to a wide variety of elective procedures for gender transitioning, including reassignment surgeries that can cause sterilization, mastectomies, removals of otherwise healthy body parts, and administration of puberty-blocking drugs or supraphysiologic doses of testosterone or estrogen. (Abbott, 2022, p. 1)

Consequently, proponents of the Texas legislation strategically appropriated anti-violence narratives to further anti-trans policies, effectively weaponizing gendered violence to advance the carceral reach of the State.

Social Work Ethics and Commitments

These anti-trans directives in Texas stand against social work values, standards, and codes of ethics (Joyner, 2022). They violate our profession's belief that social workers have a duty to advocate for conditions that support basic human needs and to refuse policies and practices that harm and further oppress marginalized groups. Social workers can appeal to an array of ethical codes to resist these directives, including, but not limited to responsibilities to expand choice and opportunity for all people (National Association of Social Workers, 2021), protect Black communities against unethical practices in the name of social welfare (National Association of Black Social Workers, n.d.), and build networks of solidarity in pursuit of transformational change (International Federation of Social Workers, 2018). Social workers also have a responsibility to fight policies and practices that further entrench poor and BIPOC folks into the carceral pipeline. Still, neoliberal agendas can easily manipulate professional codes, and some codes allow legal commitments to supersede social workers’ commitments to clients.

MR policies effectively strip social workers of their ability to engage in ethical reasoning aligned with the professional code of ethics. Not only does MR force social workers “into playing roles pivotal to maintaining our carceral state, or our wider racialized matrix of prisons, policing, and punishment” (Meiners & Tolliver, 2016, p. 7), but it stigmatizes and sometimes criminalizes non-compliance, a move that should terrify social workers.

Moving from Exceptionalism to Relationality

The mass response of social workers to refuse these directives is heartening and stands in contrast to the relative inaction in response to everyday forms of enforced gender conformity and administrative violence (Spade, 2015) that trans people endure in social services, legal systems, prisons, and the child welfare system (e.g., Mountz, 2020; Fernandez & Williams, 2014). This tension cannot be fully reconciled without acknowledging that the youth most implicated by these directives (i.e., those with the most access to gender-affirming medical interventions) are disproportionately white, supported by their families, and have access to resources, when compared to youth who bear the brunt of most punitive policies (Chiniara et al., 2018). When the NASW (2022) called out the Texas Governor and AG for “cruel, politically motivated actions” (para. 2) without speaking to the ramifications of family policing, they implicitly legitimized a broad and vague list of other forms of child abuse and neglect that have long enabled the policing and control of low-income families, Black families, Indigenous families, and families of color (Kalichman, 1999; Miller et al., 2013).

We support calls to challenge the Texas AG opinion, including resistance to compliance with MR, but caution social workers from leaning too heavily on exceptionalist arguments, treating youth who seek trans-affirming medical treatment (and their families and supporters) as particularly undeserving of family policing. If we only resist MR mandates in “exceptional” cases, we miss a strategic opportunity to stand against MR as a broad sweeping policy that has been historically used to target and criminalize low-income and BIPOC families and constrain the self-determination of youth survivors of violence. Further, we obscure the ways MR policies already harm trans youth (Lippy et al., 2020).

Here, we focus on how this particular political crisis yields lessons about the dangerous overreach of MR laws for social work practice. We take up what Survived and Punished (n.d.) counterposed as “politics of relationality” in their work leading defense campaigns for individual criminalized survivors of violence. Relationality involves “strategies that help people engage the broader crisis of criminalization and help create a public context for others to talk about their own experiences of surviving violence and being punished for that survival.” (https://survivedandpunished.org/about/). Social workers can rise up to oppose the framing of trans-affirming interventions as child abuse while using this “case” or situation as exemplary of how MR has been politically weaponized. (Harrell & Wahab, 2022) have argued elsewhere, alongside others (Dettlaff & Weber, 2020; Jacobs et al., 2021; Roberts, 2002, 2020; Raz, 2020) that MR, as part of the broader family policing system engages strategies of control and surveillance that draw families and communities further into the “carceral pipeline” (Jacobs et al., 2021), an aspect of social work practice and policy that is currently under scrutiny and particularly detrimental for communities of color and poor people. Situating the directives in Texas as part of a genealogy of colonial and racialized gendered violence, steeped in carcerality, may support social work to further consider its complicity and resistance to systems of domination.

A Praxis of Abolition Feminism

We call on social workers to embrace an abolition feminist stance. As a movement, ideology, and practice, abolition feminism:

explicitly rejects state attempts to mobilize vulnerability and difference for the purpose of expanding carcerality and instead works to highlight the role of the state in perpetuating violence, demanding engagements that both support people who are most affected and address the root causes of incarceration–poverty, white supremacy, misogyny. (Davis et al., 2022, p. 70)

The guise of protecting (white) children and women from gendered violence has long been exploited to increase and naturalize racialized carceral technologies (Meiners, 2016). Anti-trans policies that are sweeping state legislatures place trans people outside the narrative subject of protection against gendered violence. At the same time, they dangerously position the child welfare system as a source of protection for trans youth, rather than an arbiter of violence that further compromises safety and support. Indeed, the violence of enforced gender conformity is rarely recognized as such, precisely because it aligns with the dominant ideologies of the child welfare system. Many queer and trans liberation organizations have embraced abolitionist perspectives because their members and communities are directly affected by the root causes of incarceration and embrace what hooks’ (1984) referred to as “margin to center” politics (DeFilippis & Anderson-Nathe, 2017). These groups have notably clashed with the demands of liberal LGBTQ + rights groups over issues like hate crimes legislation, neighborhood policing projects, and school anti-bullying policies that rationalize the expansion of carceral nets at the expense of racialized, poor, LGBTQ youth, and their communities (Hanhardt, 2013; Meiners, 2011).

Building on what Richie (2005) invoked as “queering anti-prison work,” social workers can build abolition feminist responses to the directives in Texas by recognizing the interconnections between state and interpersonal violence experienced by trans youth, especially youth of color. Trans youth are vulnerable to experiencing family violence and criminalization because dominant ideologies reinforce binary gender roles and pathologize gender nonconformity as deviant, and therefore criminal. Centering trans youth of color survivors requires that we both refuse racialized family policing while also attending to the ways gender violence is expressed in the domestic sphere. Unsettling MR as ethical practice will facilitate support for survivors of violence, and multiple forms of violence. In anticipation of a continued assault on trans lives, we encourage social work to explore abolition feminism, resist exceptionalism, and organize responses to child welfare based on a politics of relationality.