Mental health providers licensed by the state cannot provide gender-transitioning care to minors, according to Texas Attorney General Ken Paxton.

Paxton clarified in his legal opinion Friday that Senate Bill 14, a 2023 state law that bans health care providers from providing or facilitating treatment to minors that transitions their birth gender, such as with surgery or hormone treatments, also applies to mental health providers licensed by the Texas Behavioral Health Executive Council.

Those types of providers include professional counselors, marriage and family therapists, psychologists, and social workers.

“This opinion should send a clear warning that there will be consequences for any medical professional, whether a doctor or a therapist, who is illegally transitioning’ Texas kids,” Paxton said Monday in a news release, adding he believes the path to youth transitioning from their birth gender often starts with mental health care providers.

Gender-affirming health care is a range of services that help align a person’s physical and mental characteristics with their preferred gender identity.

Mental health providers often help diagnose and recommend treatment to adults and minors with gender dysphoria, a psychological diagnosis widely accepted in the medical and mental health communities for someone whose gender identity doesn’t match their gender assigned at birth. The treatment can include depression and anxiety, assessments for readiness for hormone therapy or surgeries, and support for families.

Darrel Spinks, executive director of the Texas Behavioral Health Executive Council, asked for clarification from the attorney general’s office.

Spinks, in his request, said that because SB 14 defines “health care provider” in the context of medical procedures such as surgery and dispensing of prescription drugs, the council believes mental health care providers were not intended to be included in SB 14’s restrictions.

“The agency respectfully seeks clarification as to how such providers are impacted by S.B. 14, given that the prohibited activities and services are exclusively medical in nature and fall outside the scope of practice for mental health professionals,” Spinks asked in his letter to Paxton.

Paxton said he disagreed with Spinks’ assessment, as the definition of “health care provider” does not require a prescription pad or a scalpel, and that the law clearly states public funds, such as Medicaid funding, can’t go to the facilitation of gender transitions, and mental health providers often play a role in gender affirming care.

“We received several brief highlights that mental health professionals serve as the ‘clinical gatekeepers whose assessments and recommendations initiate interventions’ prohibited by SB 14,” according to the opinion.

The opinion also noted that violating SB 14 could result in a mental health provider losing public funding, such as Medicaid reimbursements, and losing their license to practice in Texas.

“Any radical facilitating the ‘transitioning’ of our kids is committing child abuse,” said Paxton in a news release. “The law is clear that these radical procedures are illegal, and in no world should Texans’ tax dollars be used to permanently harm children.”

Will Francis, executive director of the Texas chapter of the National Association of Social Workers, said despite Paxton’s opinion, mental health workers do not have to stop treating youth who suffer from gender dysphoria or need gender-affirming counseling because their counseling has long been considered protected speech under the First Amendment.

In his request for an attorney general’s opinion, Spinks referenced that the U.S. Supreme Court is examining whether the counseling that a mental health provider gives is considered a free speech protection under the First Amendment. In that case, Kaley Chiles, a Colorado-licensed professional counselor, is challenging a state restriction that bars her from practicing conversion therapy. She says conversion therapy is a form of free speech rather than conduct, which can be regulated and has no First Amendment protection.

“(Paxton’s) opinion doesn’t change anything except scare and frighten both the clients and the social workers,” Francis said.

Paxton’s opinion did not address whether mental health counseling constitutes free speech, saying, in general, that his office declines to answer questions that are the subject of pending litigation. Paxton did not immediately respond to a request for comment.

When asked for clarification on what the opinion means for providers, the council licenses, Spinks told The Texas Tribune: “Our licensees are expected to comply fully with Texas law” and did not prefer further clarity.

Andrea Segovia, senior field and policy director at the Transgender Education Network of Texas, said that when SB 14 was still being considered, many legislators who supported it assured that the bill wouldn’t impact mental health services for LGBTQIA+ kids in Texas.

Paxton’s opinion will harm access to care because it will scare mental health providers from giving care to young trans people in Texas, according to Johnathan Gooch, communications director of Equality Texas.

“In no uncertain terms, trans young people will die as a result of this. Access to mental health care will become more complicated for some of the most marginalized people in our state,” Gooch said. “To be messing with care for suicidal ideation among a population who face disproportionately high suicidal ideation is not just dangerous, it’s morally without method.”

Francis said his organization is planning to partner with organizations like Equality Texas, ACLU, and Lambda Legal to create legal guidance for mental health providers to educate them on their First Amendment rights and the protections it provides to the therapeutic space.

Gooch encourages mental health professionals to reach out to their lawyers to find out exactly what this opinion means for their practice.

“In other words, don’t be bullied,” Gooch said. “Mental health practitioners need to do the work to understand what is and what isn’t legal and shouldn’t be bullied by someone like Ken Paxton, who just happens to have a megaphone through which he’s projecting these ideas.” Gooch also said parents who need help with mental health resources for their children can reference Equality Texas’ Mental Health Toolkit.

Paxton’s opinions aren’t legally binding, although state agencies often use his conclusions to set policy. Despite this, Segovia and Gooch both said it’s possible that mental health professionals may drop transgender clients out of fear of retaliation from Paxton.

Paxton’s office has leveraged SB 14 to go after medical doctors that it has accused of illegally providing gender affirming care to youth.

May Lau, a Dallas pediatrician, surrendered her medical license last year after becoming the first doctor Paxton sued under SB 14. He also sought similar claims against an El Paso endocrinologist, Hector Granados, that were eventually dropped, and against Brett Cooper, another Dallas pediatrician. Cooper’s case is set for a court hearing in May.

Francis said that while Paxton’s opinion is not legally binding, the Legislature could pass a bill enshrining his opinion to ban state licensed professionals from providing gender-affirming or gender-transitioning mental health care.

“We have seen legislators clearly understand that you need to talk to someone when you are having issues, and that the number one cause of suicide is related to mental illness. What we see is fear when it is related to LGBTQ+ issues,” Francis said. ”Mental health comes in many forms, and when you try to start to regulate that, you are starting to strip away the freedoms of Texans, but also silencing them.”

Disclosure: Equality Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

For mental health support for LGBTQ youth, call the Trevor Project’s 24/7 toll-free support line at 866-488-7386. For trans peer support, call the Trans Lifeline at 877-565-8860. You can also reach a trained crisis counselor through the Suicide and Crisis Lifeline by calling or texting 988.

 Learn about The Texas Tribune’s policies, including our partnership with The Trust Project to increase transparency in news.