Advisory on SO-CALLED Sanctuary Cities 

The State of Texas is charged with protecting vulnerable children diagnosed with gender dysphoria, a mental disorder, from dangerous and experimental medical treatments, including the use of puberty blockers, cross-sex hormones, and surgeries (the Prohibited Treatments).[1]

  1. The Prohibited Treatments are Not Evidence Based. 
  2. The American Psychiatric Association defines gender dysphoria as a mental disorder allegedly arising from “the distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender.”[2] The prevalence of children diagnosed with gender dysphoria has significantly increased in recent years.[3] 
  3. A vocal group of activist medical providers and ideologically captured medical associations, such as the World Professional Association of Transgender Health, falsely claim that puberty blockers, cross-sex hormones, and surgeries are evidence-based treatments proven to be safe, effective, and to reduce suicides among children diagnosed with gender dysphoria.[4] The claims made by these activists have been uncritically repeated by some in the media.[5]

These claims are, however, categorically and demonstrably false.

The National Health Service (NHS) in the United Kingdom recently commissioned the “Cass Report” to evaluate the safety and efficacy of puberty blockers and cross-sex hormones for children diagnosed with gender dysphoria.[6] The Cass Report spent four years reviewing clinical data, interviewing patients and providers, and conducting six systematic reviews. It concluded, among other things, the following: 

  • Gender Dysphoria: a diagnosis of gender dysphoria is “not reliably predictive of whether that young person will have longstanding gender incongruence in the future, or whether medical intervention will be the best option for them.”
  • Social Transition: there is “no clear evidence that social transition in childhood has any positive or negative mental health outcomes, and relatively weak evidence for any effect in adolescence.” 
  • Puberty Blockers: the use of puberty blockers resulted in “no changes in gender dysphoria or body satisfaction” and there is “insufficient/inconsistent evidence about the effects of puberty suppression on psychological or psychosocial wellbeing, cognitive development, cardio-metabolic risk or fertility … there is no evidence that puberty blockers buy time to think, and some concern that they may change the trajectory of psychosexual and gender identity development.”
  • Cross-Sex Hormones: “[t]here is a lack of high-quality research assessing the outcomes of hormone interventions in adolescents with gender dysphoria/incongruence, and few studies that undertake long-term follow-up. No conclusions can be drawn about the effect on gender dysphoria, body satisfaction, psychosocial health, cognitive development, or fertility [from the use of cross-sex hormones]. Uncertainty remains about the outcomes for height/growth, cardiometabolic and bone health.”
  • Suicides: “It has been suggested that hormone treatment reduces the elevated risk of death by suicide in this population, but the evidence found did not support this conclusion.”
  • Detransitioners: “[t]he percentage of people treated with hormones who subsequently detransition remains unknown due to the lack of long-term follow-up studies, although there is suggestion that numbers are increasing.”
  • Informed Consent: “the poor evidence base makes it difficult to provide adequate information on which a young person and their family can make an informed choice.”
  • Surgeries: the Cass Report did not evaluate surgeries because the NHS prohibited them for the treatment of gender dysphoria in children. 

Prior to the Cass Report, my office defended a legal attack on the Prohibited Treatments brought by activists.[7] My office presented expert testimony that that there are only two biological sexes, that the Prohibited Treatments are experimental, are not evidence based, are not “medically necessary,” are irreversible, and have serious risks and dangerous side effects. The experts testified that the only safe treatment for children experiencing incongruence between their gender and biological sex is therapy and that the so-called consensus that the Prohibited Treatments are safe and effective is the result of activist capture of medical associations—not rigorous scientific inquiry.[8] The experts further testified that minors lack the capacity to provide informed consent or assent to the Prohibited Treatments, there are no FDA approved medications for the treatment of gender dysphoria, and there have been no randomized, controlled studies conducted on the safety and efficacy of the Prohibited Treatments on minors for the treatment of gender dysphoria.[9]

At least 23 other States have reached the same conclusion as Texas and passed laws similarly restricting or banning the Prohibited Treatments.[10]

  1. The Prohibited Treatments are Unlawful in Texas. 

The Prohibited Treatments ban went took effect on September 1, 2023. Texas physicians and healthcare providers are prohibited from using puberty blockers, cross-sex hormones, and surgeries either to treat gender dysphoria or otherwise “[f]or the purpose of transitioning a child’s biological sex as determined by the sex organs, chromosomes, and endogenous profiles of the child or affirming the child’s perception of the child’s sex if that perception is inconsistent with the child’s biological sex.”[11]

Some children who were already receiving puberty blockers or cross-sex hormones prior to June 1, 2023, were permitted to “wean off” the prescription drugs “over a period of time and in a manner that is safe and medically appropriate and that minimizes the risk of complications.”[12]

The prohibition does not apply to the treatment of precocious puberty or “appropriate and medically necessary procedures or treatments to a child who: (A) is born with a medically verifiable genetic disorder of sex development” or “(B) does not have the normal sex chromosome structure for male or female as determined by a physician through genetic testing.”[13]

Texas has a variety of enforcement mechanisms it can deploy against individuals and entities violating this law, including: 

Texans should be aware of their obligations under the law and report any suspected violations.

  1. Sanctuary City Ordinances are Preempted by State Law.  
  2. The Texas Constitution provides “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”[19] 
  3. The Local Government Code similarly provides that “the governing body of a municipality may adopt, enforce, or maintain an ordinance or rule only if the ordinance or rule is consistent with the laws of this state.”[20]

If an ordinance or regulation is at odds with a statute, then it is preempted.[21] Such an ordinance or regulation “is unenforceable to the extent it conflicts with the state statute.”[22]

Local regulations are preempted when they prescribe a governing rule that is inconsistent with a state statute's standards, even if enforcement of the local law might hypothetically result in the same outcome as enforcement of the statute. 

So, to the extent any local government purports to adopt so-called “transgender sanctuary city” ordinances or regulations that permit the use of puberty blockers, cross-sex hormones, or surgeries or allocates funding for the same, in violation of state law, those ordinances or regulations are preempted and unenforceable, and will not protect healthcare providers, physicians, individuals, and government officials who violate state law.[23]

  1. Sanctuary City Resolutions and Proclamations are Unenforceable. 

On May 2, 2024, the Austin City Council adopted Resolution 24-4543 (“the Resolution”)[24] that purports to direct the City Manager to do the following: 

  • “Except to the extent required by law, it is the policy of the City that no City personnel, funds, or resources shall be used to investigate, criminally prosecute, or impose administrative penalties upon: (1) a transgender or nonbinary individual for seeking healthcare, or (2) an individual or organization for providing or assisting with the provision of healthcare to a transgender or nonbinary individual; and further, the City shall not terminate or limit the eligibility for City funding, such as grants or contracts, to an individual or organization for seeking, providing, or assisting with the provision of healthcare to a transgender or nonbinary individual.”
  • “If any law or regulation of the State of Texas imposes criminal punishment, civil liability, administrative penalties, or professional sanctions upon: (1) a transgender or nonbinary individual for seeking healthcare, or (2) an individual or organization for providing or assisting with the provision of healthcare to a transgender or nonbinary individual, City personnel shall make enforcement of said law or regulation their lowest priority.”
  • “Except to the extent required by law, City personnel shall not enforce laws of other jurisdictions that impose criminal punishment, civil liability, administrative penalties, or professional sanctions, upon: (1) a transgender or nonbinary individual for seeking healthcare, or (2) an individual or organization for providing or assisting with the provision of healthcare to a transgender or nonbinary individual and shall decline any request to stop, arrest, detain, continue to detain, or transfer into the custody of any other law enforcement, individuals on the basis of such conduct being criminalized, penalized, or sanctionable in said jurisdiction.”
  • “Except to the extent required by law, City personnel shall not affirmatively provide to nor respond to any request for information from another jurisdiction if the information is related to that jurisdiction’s laws, rules, or regulations imposing criminal punishment, civil liability, administrative penalties, or professional sanctions or the investigation thereof, upon: (1) a transgender or nonbinary individual for seeking healthcare, or (2) an individual or organization for providing or assisting with the provision of healthcare to a transgender or nonbinary individual.”
  • “Except to the extent required by law, City personnel shall not enforce or facilitate the collection of any judgment of another jurisdiction to the extent the judgment arises out of a cause of action in that jurisdiction against: (1) a transgender or nonbinary individual for seeking healthcare, or (2) an individual or organization for providing or assisting with the provision of healthcare to a transgender or nonbinary individual.”
  1. The Resolution further directs the City Manager to explore establishing a program or identifying resources to “assist” Austin residents violating the law and to take all appropriate steps to implement the Resolution. 

The Attorney General advises all Texans residents of Austin that the Resolution is unenforceable, imposes no legal obligations, provides no legal immunities or defenses, and is preempted by state law. 

First, “unlike an ordinance, a resolution is not a law, but an expression of an opinion.”[25] There are no legal obligations or punishments for noncompliance with the Resolution. It will not immunize or protect residents or officials who violate state law.

Second, the “except to the extent required by law” qualification swallows all the defiance contained in the succeeding paragraphs. Despite its bluster, the Resolution still requires the City Manager to comply with state law, which prohibits the use of puberty blockers, cross-sex hormones, and surgeries for the treatment of gender dysphoria in children or to otherwise transition a child’s biological sex.[26]

Third, the Resolution’s directive to make enforcement of the law the lowest priority is belied by the fact that the Texas Medical Board and the Attorney General enforce violations—not the City of Austin. 

Fourth, to the extent the Resolution conflicts with state law, such as the directive that the City Manager explore using public funds to assist residents accused or in violation of the law or could be misread as directing the City Manager to adopt policies that conflict with state law—it is preempted. 

Should the City of Austin or the City Manager adopt an ordinance, regulation, policy, or procedure that conflicts with state law, or should they act in any manner that contravenes state law, the Attorney General stands ready to intervene. 

The Attorney General will uphold the law and protect children from dangerous and unlawful medical procedures. 

[1]      SeeTex. Health & Safety Code § 161.702 (prohibiting the use of puberty blockers, cross-sex hormones, and surgeries for the treatment of gender dysphoria in children or to otherwise transition a child’s biological sex.). 

[2]      Keohane v. Florida Dep’t of Corr. Sec’y, 952 F.3d 1257, 1262 (11th Cir. 2020) (quoting American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013)).

  1. [3]      Danyon Anderson et al., Gender Dysphoria and Its Non-Surgical and Surgical Treatments, Health Psychol. Res. (2022), https://tinyurl.com/NIH-GenderDysphoria.

[4]      World Prof'l Ass'n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People 1, at 17-21 (7th ed. 2011).

[5]      See Jesse Singhal, The media is spreading bad trans science, Unherd (Apr. 18, 2023), available at https://tinyurl.com/3a22vd7j; see also Christina Buttons, Gender Medicine’s Citation Cartel, Reality’s Last Stand (Apr. 13, 2024) (explaining how activists are using circular referencing to manufacture the appearance of a scientific consensus), available at https://tinyurl.com/2p62kk9r. 

[6]      Hilary Cass, M.D., Independent Review of Gender Identity Services for Children and Young Adults, National Health Services England (Apr. 2024) (the “Cass Report”), available at https://tinyurl.com/mw4s3arn. 

[7]      Texas v. Loe, No. 23-0697 (Tex. argued Jan. 30, 2024). 

[8]      See Kathleen McDeavitt, Paediatric gender medicine: Longitudinal studies have not consistently shown improvement in depression or suicidality, Acta Paediatrica (June 3, 2024) (analyzing 6 existing reviews and 14 longitudinal clinical research studies and concluding that, contrary to assertions of some experts and North American professional medical organizations, the impact of hormonal interventions on depression and suicidality among pediatric patients receiving cross-sex hormones for the treatment of gender dysphoria is unknown), available at https://doi.org/10.1111/apa.17309. 

[9]      See also John J. Straub, et al., Risk of Suicide and Self-Harm Following Gender-Affirmation Surgery, Cureus (Apr. 2, 2024) (cohort study finding that “[i]ndividuals who underwent [so-called] gender-affirming surgery had a 12.12-fold higher suicide attempt risk than those who did not.”), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11063965/.

[10]     Tex. Health & Safety Code § 161.702; see also Sophie Putka, These States Have Banned Youth Gender-Affirming Care, MedPage Today, (Mar. 26, 2024), available at https://tinyurl.com/mu9wnkxw. 

[11]     Tex. Health & Safety Code § 161.702.

[12]     Tex. Health & Safety Code § 161.703(c). 

[13]     Tex. Health & Safety Code § 161.703(a).

[14]     Tex. Occ. Code § 164.052(a)(24), .0552(a).

[15]     Tex. Health & Safety Code § 161.706(a). 

[16]     Tex. Fam. Code § 261.001(1); Tex. Pen. Code § 22.04.

[17]     Tex. Health & Safety Code § 161.704. 

[18]     Tex. Health & Safety Code § 161.705. 

[19]     Tex. Const. art. XI, § 5.

[20]     Tex. Loc. Gov’t Code § 51.002; see also Tex. Gov’t Code § 51.012.

[21]     Dallas Merch.'s & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993); City of Galveston v. Giles, 902 S.W.2d 167 (Tex. App. Houston 1st Dist. 1995).

[22]     Id.; see also City of Houston v. Houston Professional Fire Fighters' Association, Local 341, 664 S.W.3d 790 (Tex. 2023).

[23]     Id.

[24]     https://austintexas.legistar.com/LegislationDetail.aspx?ID=6642635&GUID=F73A6D50-6358-4A75-B468-36EDDCE56CBE. 

[25]     City of Carrollton v. Tex. Comm'n on Envtl. Quality, 170 S.W.3d 204, 215 (Tex. App.—Austin 2005, no pet.); see also 52 Tex. Jur. 3d Municipal Corporations § 192 (2024) (“A resolution does not constitute a law, but is a mere expression of the opinion or will of the governing body concerning some matter of administration coming within its official cognizance.” (citations omitted).

[26]     Tex. Health & Safety Code § 161.702.