On TX AG Ken Paxtons Opinion KP-0518
Was going to do an overview on TX AG Ken Paxtons Opinion KP-0518, what it says and how it ties previous Opinions and Bills together. A poster in one of the Facebook groups made it easy for me! I realized after I finished responding that I had just penned my overview so here it is, and I'll begin with a quick review of the opinions and bills I'm referring to.
The Pieces on the Board
Ken Paxton's Opinion from 2022 (KP-0401) equated GAC with child abuse under Texas Family Code § 261.001.
SB12 (2025) prohibits that initial segment of the transitioning, the "social transitioning" that sets a kid up for the "physical transitioning" portion of the gruesome process.
SB14 (2023) directly addresses and outlaws the physical transitioning.
Paxton's most recent ruling, (KP-0518), clarifies some long-held definitions and re-establishes some uncomfortable relationships (for some!). Okay, with that backdrop, let's dive in.
The OP's First Claim
"Equality Texas" (the OP; Original Poster) posted earlier this week on Facebook. Since I'm not allowed to comment (they don't like the inclusive approach to differing opinions nor do they like civil debate so I'll post here!).
They quoted the TX Supreme Court saying, "it is well-settled that an Attorney General opinion interpreting the law cannot alter the pre-existing legal obligations of state agencies or private citizens".
My Response
They are absolutely correct. That's why it's called an "opinion" but the State has historically given great weight to those opinions. With that, the courts always have the last say. What I object to is the opening insinuation that Paxton's opinion (KP-0518) is somehow attempting to alter, edit, or amend existing law. It is not. If you'd read the opinion you would know that. It simply underscores definitions and categorizations that have been embedded in current code and re-affirmed countless times in court cases in the past 50 years. Nothing new here, just defining terms, clarifying the bill's oversight authority and connecting a few very old dots and recent bills is all they've done.
The OP's Second Claim
In their second paragraph, the OP says,
"The Texas Legislature banned certain medical procedures for trans youth in the state when they passed SB14 (2023). The list of banned procedures does not include mental health services."
Then they go on to erroneously and publicly claim,
"That means that it remains legal for mental health practitioners to treat young Texans with gender dysphoria."
Why They Are Wrong
The OP attempts to make the case that a failure to enumerate a list of facilitating treatment approaches often used by counselors in the GAC process, in a list of prohibited surgical procedures for the other group covered by this bill ("Physicians") equates to exclusion of those affirming care tactics. That would therefore imply that counselors are not subject to the oversight provided in SB 14 (2023). They are wrong. Paxton's Opinion directly addresses this point but OP skipped right over that part, probably because they didn't bother to read the opinion.
In pointing directly to the list of prohibited surgeries they've skipped right over the heart of the opinion which is the clarification of definitions. In doing so they have ignored the larger context of the bill in which their statement lives. We need to do that before any absolute, iron-clad statements are made. So let's do it!
Definitions are Key to Context and Intent
All of the definitions I am about to explain have been recognized and codified in the Texas Statutes for many, many years. None of this is new.
ALL mental health care practitioners are a part of the macro-classification of services in the Codes called, "Health Services". If you are a licensed provider of any service aimed at improving the mental or physical health of a person then you qualify and fall under that umbrella category.
Health Services is further made up of two sub-groups; "Physicians" and "Health Care Providers". The simplest way to explain the difference is this. If you belong to the macro-group known as "Health Services" and you are NOT a licensed physician (MD, DO, NP, etc), and you are a licensed provider of health services (that's YOU!) then you fall under the "Health Care Providers" category. "Are licensed mental health professionals Health Care Providers?" was the primary question at the heart of the RFO that BHEC requested but you (the OP) skipped right over it! Tangentially, this question has been asked and answered many times long before most of us were born. Why it's a question now is highly suspicious and sounds driven by an agenda??
Since SB14 (2023) clearly states it applies to "Health Care Providers and Physicians" (read the final bill), it clearly and obviously applies to mental health care practitioners since you/we fall in the Health Care Provider group. See how that works?
With those definitions out of the way we understand the two primary facts, that we are health care providers and SB14 does apply to MH counselors. We may now redirect our attention to the topic of "Scope of Work", which is where the OP chose to focus, and the concept of "Facilitation".
Intent of the Bill vs Exclusion
The OP wants you to believe that failure to list an item in a list of excluded procedures equates to exclusion from SB14 oversight. Not only is that incorrect it's the wrong place to begin your logical argument.
The intent of the bill, the spirit, takes precedent over any item that may have been left off the list for any reason. This concept is further explained in Paxton's Opinion. Either the OP didn't read the opinion or chose to ignore the argument
SB14 clearly applies to licensed MH counselors as outlined above. If the bill applies to MHC's then it applies to the tactics they use. Furthermore, those tactics are linked to "facilitation". Let's talk about "facilitation" then we'll connect the dots.
Facilitation is Participation in the GAC Process
Paxton's Opinion says "facilitation"..."ordinarily means 'to make easier' or 'to help bring about'." "To help bring about a prohibited procedure or treatment", is the specific application in this context.
SB14 (2023), again, clearly outlines that any Physician or Health Care Provider who "facilitates" the GAC process at any stage of the process is guilty of breaking the law rendered through SB14 already in effect.
Tactics are Facilitation
Facilitation indicates that any list of tactics or treatments used to affirm or further the GAC process will logically be deemed illegal since:
a) MH counselors are "Health Care Providers", meaning...
b) we're included in the oversight provided by SB14, and
c) facilitating the GAC process is deemed illegal.
THEREFORE, any tactics or treatments (pronouns, chest binders, etc) used in that facilitation are illegal. The Physicians have their own list of forbidden procedures, MHC's have their own implied list. If it furthers the GAC model, it's on the list. Those tactics DO NOT have to be specifically enumerated since the larger context of the bill includes and applies to MHC's and the intent of the bill supersedes any incomplete example list. That's what Paxton's Opinion says. Go read it.
On Challenging AG Opinions
AG Opinions can and have been challenged in court but given the weight that's assigned to them not many have been amended or overturned relative to the sheer volume of them in the past 100 years. Sure it's possible someone may attempt to challenge this in court. Given the 50 year track record of all of the definitions involved and the interconnectivity of those terms within the larger web of state codes it's not likely to happen, nor is it likely to succeed.
The Bottom-Line
Because mental health treatment tactics weren't specifically enumerated on the list of banned procedures for Physicians doesn't exclude MH providers from the oversight of this bill. Other historically established terms (listed above) establish our oversight inclusion re: SB14, and since "facilitating" the GAC process requires certain tactics and actions, those items are logically and necessarily covered as excluded tactics, too.
The Cost for Going Rogue and Ignoring the Law?
One more thing to know. If a counselor breaks the law created by SB14 (2023) and continues to practice these banned techniques, that "will require" revocation of their license. Not "may", will. And "will" means there's no wiggle room for emotional pleas or "I didn't know". Is it worth it?
I suggest you sit down and read SB14 (2023) and Paxton's Opinion (KP-0518). Picking out one item and assigning a selective layman's interpretation without benefit of the larger context of the bill and its intent, then gaslighting other counselors into breaking the law is a dangerous position to hold.
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