Prosecutors in Texas say they won’t prosecute in cases that criminalize gender-affirming care

Posted at 11:02 AM, Apr 05, 2022

HOUSTON — Sunny is a playful eight-year-old girl. She named herself around the age of four when she decided she identified as a girl. Sunny is now considered a transgender girl. Rebekah and Chet are her parents. We’re not sharing their last name for their protection.

“For us, it wasn't obvious she didn't play with particularly gendered toys to begin with,” Rebekah said. “But then she said to me ‘why did you make me a boy? I wanted to be a girl’. And I just said ‘it wasn't up to me and daddy.’ She said ‘you should have made me a girl. I was meant to be a girl.’”

At first, they thought it was a phase, but she was insistent, so they gradually accepted who she was.

“Our doctor said ‘don’t treat her like she’s special, she’s just a normal kid,’” Sunny said.

At school, Sunny says she’s accepted for who she is.

“I still have lots of friends and no one cares about that,” Sunny said. “No one cares about the differences that I have.”

That may hold true for the kids, but in the state of Texas, Sunny and her mother have been taking regular trips to the Capitol to oppose anti-trans bills from political leaders.

In February, Governor Greg Abbott issued a directive based on Texas Attorney General Ken Paxton’s declaration that gender-affirming care should be considered child abuse.

However, almost immediately, Harris County District Attorney Kim Ogg released a statement saying she will not prosecute any parent, facility, or anyone else for providing medically appropriate care to transgender children. Neil Giles is an attorney who has been forced to take an interest in family law to defend his two non-binary children.

“This isn't about protecting kids,” Giles said. “It's about denying the existence of these people and their right to dignity and equality. And Kim Ogg came out and said, ‘That's not who Harris County is, and we're not going to do that. We're not going to enforce this.’”

A prosecutor does have the right to do that. It’s called prosecutorial discretion. Miriam Krinsky, executive director of Fair and Just Prosecution, explains.

“Prosecutors are charged with deciding what should be prosecuted, what should be pursued and what shouldn't,” Krinsky said.

According to Krinsky, prosecutorial discretion gives attorneys the ability to use their expert judgment and maintain a separation of power from the branches that write and pass laws.

“Prosecutors around the country, as well as law enforcement leaders, are having to stand together and stand up on this because this issue does not seem to be limited to Texas alone,” Krinsky said. “Just as we had feared when this amicus brief was filed in Texas, there are other copycat versions of it that seem to be percolating around the country.”

She says district attorneys from coast to coast have come out saying they will not prosecute these cases because they consider criminalization of gender-affirming care as a public safety threat. However, according to Mandy Giles, the founder of Parents of Trans Youth, families are still concerned about the threat of investigations.

“We're here to fight,” Rebekah said. “And that is very true. We are here to fight, but we're not here for the consequences. And the consequences would be losing our child, being jailed as child abusers.”

“That child is a human being and she's just living in her life,” Chet said. “And that's it. That's the long and short of it. And she should be she should have the right to do that.”