Texas Mental Health Boards Believe Therapists are Banned from Affirming Trans Youths' Gender When Related to Medical Transition
Guidance Also Makes Clear the Anti-Trans Goals of State-Sanctioned So-Called "Exploratory Therapy"
On March 13, Texas's four mental health licensing boards — which together form the Texas Behavioral Health Executive Council (BHEC) — posted guidance on aligning clinical practice with SB14, the 2023 bill (passed and signed into law) that banned gender-affirming care for minors in the state. I haven’t seen this reported anywhere and it’s disturbing. Importantly it also remains unclear in terms of how broadly this affects affirming practices by mental health professionals and whether there are truly legal grounds to enforce this. The Council’s guidance comes shortly after the Texas Attorney General issued a legal opinion in early March arguing that SB14’s prohibitions also extend to mental healthcare treatment, which Erin Reed reported on thoroughly.
The document, titled Guidance on the Treatment of Gender Identity-related Concerns Under Chapter 161, Subchapter Y, Texas Health & Safety Code (referring to the statute added to the Health and Safety Code after SB14 was signed into law) is available to read in full. The Texas BHEC consists of the Texas State Board of Examiners of Marriage and Family Therapists, Texas State Board of Examiners of Professional Counselors, Texas State Board of Examiners of Psychologists, and the Texas State Board of Social Worker Examiners, and thus oversees the licensure of all mental healthcare providers in the state of Texas, outside of psychiatric prescribers.
This guidance directly challenges the arguments from multiple Texas chapters of professional associations for mental health care workers, which had earlier made a joint statement “respectfully disagreeing” with AG Paxton’s legal opinion.
What the Guidance Says
The BHEC guidance attempts to clarify how mental healthcare providers should interpret the ban on gender-affirming care for minors in their therapeutic work.
Council licensees may not provide a course of treatment intended to affirm a child’s perception of sex that is inconsistent with the child’s biological sex when that course of treatment is intended to facilitate the medical transitioning of a child through a treatment or procedure prohibited under Section 161.702. Licensees should consider both intent and purpose: care intended to facilitate prohibited procedures falls under the statutory prohibition, while other therapeutic care does not.
[Emphasis theirs.]
The guidance also includes a section on the importance of professional judgment “grounded in scientifically and professionally derived knowledge.” It encourages clinicians to “evaluate the quality and sufficiency of the underlying evidence when forming professional judgments” and avoid being swept up in “advocacy materials, policy statements, or position papers that may intermix scientific assertions with policy or political perspectives.” It also states boldly [and rather inaccurately] that “questions concerning the safety and efficacy of certain gender-affirming medical interventions for minors remain the subject of ongoing scientific debate and review.” That statement, while opaque in its language, makes clear to me that Texas licensing boards seem to place more rigor and weight upon the heavily politicized and methodologically weak Trump Admin HHS review and dismiss the robust scientific reviews that have found gender-affirming approaches to be critical options for youth with trans identities and gender dysphoria.
The guidance identifies the specific behaviors as prohibited by the ban enacted by SB14:
Providing evaluations, letters (e.g., surgery readiness, medical clearance, assessment, support, or gender-affirming care letters), or documentation intended to enable [minors to] access to puberty blockers, cross-sex hormones, or surgery prohibited under Section 161.702.
Referring a minor for procedures or treatments prohibited under Section 161.702.
Structuring a treatment plan intended to advance a minor’s eligibility for procedures or treatments prohibited under Section 161.702.
Using public funds to support services that facilitate procedures or treatments prohibited under Section 161.702 for a minor.
It is of course deeply harmful to restrict mental healthcare providers from helping a client consider options that include gender-affirming medical intervention. As my colleagues and I spelled out in our 2024 commentary in the Journal of Adolescent Health, the evidence basis for the safety and benefit of gender-affirming health care is robust.
We have seen similar efforts affecting clinical practice in Indiana with the “aiding and abetting” component of their ban on gender-affirming care for minors. Despite clear violations of free speech and restrictions on clinicians’ duty to protect their patients, this part of the law remains in place. I have heard from therapists in Indiana on how damaging this component is. When the law is adhered to, it prevents therapists from helping clients identify future goals if they are related to medical transition, prevents them from providing letters for even out-of-state care (letters which are a necessary component of almost all gender-affirming medical care for youth), and prevents youth from using therapy as a place to think critically about the pros and cons and general impacts of medical transition steps, as well as what ultimately fits or doesn’t fit their needs. Laws like this put therapists in a position of violating the law and risking losing their licenses if they engage in ethical and evidence-based practice.
The Texas guidance also included a section specifying that the following clinical practices with “minors with gender dysphoria or other identity-related concerns” are considered “not implicated” by the ban:
Treatment of co-occurring conditions: Therapy for depression, anxiety, trauma, or other mental health concerns.
Exploratory psychotherapy: Open-ended, developmentally appropriate exploration of identity.
Neutral supportive counseling: Providing a safe space, supporting resilience, processing family dynamics.
Crisis stabilization and safety planning: Risk assessments, emergency interventions unrelated to prohibited procedures.
Ethics-compliant clinical documentation: Documentation necessary for continuity of care, provided it is not intended to facilitate prohibited procedures.
[Read the following sentence as dripping with rageful sarcasm] I would welcome more specific guidance on how safety can be established and resilience can be supported without a fundamental commitment to affirmation and access to evidence-based care. We also know that unaddressed gender dysphoria can present as symptoms of depression, anxiety, and even PTSD, and that we often see improvement in these domains when trans people of all ages engage in affirming community and have access to appropriate care. “Therapy for depression, anxiety, trauma, or other mental health concerns” will very rarely be effective or effective to its full potential for clients with gender dysphoria under this ban (in other words if the therapy is not gender-affirming).
And I have so many thoughts about “exploratory therapy” that it gets its own section here:
So “Exploratory Therapy” Isn’t Really Exploratory, Eh?
I found it so telling that this guidance specifically mentions “exploratory therapy” as a practice that isn’t prohibited by the statute and thus clearly exists outside of the category of “affirmation…that facilitates…medical transition.” In the guidance, exploratory therapy is defined as “open-ended, developmentally appropriate exploration of identity,” which is how it’s always pitched in the discourse about therapists and affirmation. “Well shouldn’t we be helping kids and teens explore their identity rather than shoehorning them into one?!” I have repeatedly discussed (including on this substack) how affirming approaches not only do include exploration, they actually are far better suited for exploration than so-called “exploratory” therapy, because affirming approaches aren’t invested in a certain outcome of the exploration, which “exploratory” therapy clearly is. This guidance out of Texas makes that plain. It’s not “open-ended” exploration if it can exist wholly outside of affirmation that facilitates medical transition. That’s an entire set of pathways and outcomes that are off-limits. Anyway, a lot has been written about this and I don’t need to get into it more than this — I just wanted to say that I noted the hypocrisy being spelled out so clearly.
What the Guidance Doesn’t Say
While it is clear in this guidance that mental health providers are at risk1 of acting outside of their licenses if they engage in the facilitation of medical transition steps, there is absolutely no clarity in this guidance around where the line is between gender affirmation that does “facilitate…medical transitioning” and gender affirmation that does not (and thus is allowed by these bodies). This is the only line that gets at this task of discernment: “Licensees should consider both intent and purpose: care intended to facilitate prohibited procedures falls under the statutory prohibition, while other therapeutic care does not.”
Right wing groups have long argued that using affirming names and pronouns is the first step down a pathway to medicalization and thus could be interpreted as facilitating banned medical transitioning. Of course this is ridiculous and even more of an overreach than bans on medical care. And preventing mental healthcare providers from even acknowledging and affirming a likely vulnerable trans young person’s sense of themself is incredibly dangerous and would lead to immense harm to both trans youth and clinicians in the state. You don’t have to just take my word for it — remember that in 2024 the American Psychological Association adopted a strong statement in support of gender-affirming approaches and noting the harm of gender non-affirmation, and then reaffirmed its support of that statement this year.
The vagueness around this piece of Texas’ guidance seems deliberate and insidious. And cowardly, frankly. Say it with your whole chest, Texas BHEC. Maybe I’m not being fair — maybe there are folks involved who wanted it vague to protect clinical non-medical affirmation processes… But this doesn’t read like protection. It reads like a paradox for well-meaning therapists: they face anxiety about and actual risk of legal or professional consequences if they provide gender-affirming therapy — even though not doing so would contradict both their ethical obligations and the evidence on what trans young people actually need.
This is Not a Legal Document
Importantly, neither this guidance nor AG Paxton’s legal opinion are themselves legally binding documents. As multiple Texas mental health care professional associations noted in their March 3 joint statement, there are lots of holes in AG Paxton’s opinion and thus a great deal of room for a legal defense should someone accuse a therapist of breaking the law by facilitating gender-affirming care. It all comes down to whether “health care providers” includes therapists or not, as the law bans health care providers from facilitating this treatment. That said, the BHEC guidance states that their reasoning is based on “longstanding professional standards that prohibit licensees from assisting or facilitating a client’s participation in conduct that is unlawful.” So I really do believe they mean business and regardless of whether Paxton’s approach holds up in court, the BHEC could still argue that facilitating access to banned care is prohibited. So this is very concerning to me, and I’m not one to be alarmist.
There’s Still Room to Resist! And We Should!
Some closing thoughts on how Texas therapists and others can proceed:
As I’ve alluded to at multiple points here, a joint statement from the Texas Chapter of the National Association of Social Workers (NASW-TX), the Texas Association for Marriage and Family Therapy (TMFT), Texas Counseling Association (TCA), and Texas Society for Clinical Social Work (TSCSW) challenged AG Paxton’s interpretation of SB14 and affirmed their commitment to “the dignity, safety, and rights of transgender people in Texas” with NASW-TX also affirming the rights of social workers to practice freely in the state.” These orgs have not yet responded to the BHEC guidance, but noted in their original statement that further communication would be coming. I suspect they will have an advocacy response and guidance for their members soon.
Honestly, I don’t know how I would advise a Texas-licensed therapist right now. I’m not a legal expert nor am I familiar with the inner- or even public workings of the Texas licensing boards. I do know that avoiding facilitation of gender-affirming care when it is appropriate for a trans person goes against evidence-based best practice and our ethical commitments. I know that engaging in non-affirmation is deeply harmful and indeed potentially traumatic.
I hate the bind Texas therapists have been put in and I look forward to local professional associations clarifying the actual risk to licensees and resisting this. Because yes we can and should be resisting this NOW.
We can definitely be loudly protesting this — in the streets with signs, in conversations with our colleagues and students, and in communication with our elected representatives. We should also be looking into what our colleagues in Indiana have been doing in response to their “aid and abet” law. And maybe some of this discussion should happen offline (or at least off social media) and away from surveillance technology — Just saying.
Therapists outside of Texas can play a vital role by safely offering care virtually. Texas is part of PSYPACT, which means that psychologists licensed in other states who are authorized by PSYPACT can provide virtual psychotherapy in Texas. Thus far, it appears that Texas is not part of the social work or counseling compact. I would encourage PSYPACT psychologists to make an effort to free up room in your schedules for Texas youth and families (remember “minors” includes teens up to 17 so you don’t even need to be a child therapist to be useful here). I would also encourage psychologists in PSYPACT states who are not yet part of PSYPACT to make an effort to pursue this — especially if you’re in a state that also has shield laws providing extra protection for your license related to the provision of gender-affirming care. If you are a psychologist who can’t be a part of PSYPACT or you have another license without an interstate compact that works in Texas, I would look into other roles you can provide virtually like coaching or facilitating peer support. If our colleagues in Texas’ jobs are in jeopardy if they do this work, then we really need to step up and show up for them and for the youth in Texas.
We should all be in conversation with our professional associations and licensing bodies at the state and national levels to understand their plans for protecting us and protecting ethical, evidence-based practice as efforts like what we are seeing in Texas spread. People should be advocating for shield laws like those in Massachusetts and Minnesota and those of us in shield law states should use our protection to be as bold as possible, to step in for our colleagues in positions of greater risk.
I very much welcome discussion in the comments about how folks are managing this, how you are responding/resisting, and how you’re supporting clients and colleagues, though I caution people against public identifying comment if they are licensed in a more hostile state — sadly.
Small Disclaimer
I wrote this piece quickly, in chunks, between clinical sessions. It felt urgent enough to get out in imperfect and under-edited form. Everything in here will withstand fact-checking, but I apologize for any grammatical errors or if my organization is less-than-ideal.
Note: I updated this on the night of March 16 to include information about the joint statement from NASW-TX, TMFT, TCA, and TSCSW, and to clarify throughout that the guidance is not a legal document.
It’s really hard to know how to talk about this, because this is technically “guidance” on how to interpret the law — so no it’s not exactly legally binding, but is the executive council overseeing licensing boards saying this is how they interpret the law and general prohibitions of licensees. So yes I think they are conveying that people’s licenses are at risk.