Excerpted From: S. Lisa Washington, Weaponizing Fear, 132 Yale Law Journal Forum 163 (October 17, 2022) (190 Footnotes) (Full Document)


S.LisaWashingtonIn a letter dated February 22, 2022, Texas Governor Greg Abbott directed the Commissioner of the Texas Department of Family and Protective Services (DFPS) “to conduct a prompt and thorough investigation of any reported instances” of what he defines as “abusive gender-transitioning procedures.” The letter emphasized that mandatory reporting laws required doctors, nurses, teachers, and other mandated reporters to report child abuse or else face criminal penalties. DFPS responded that it would comply with the Texas law. Following the Governor's directive, DFPS initiated several investigations against parents with transgender children. A few hospitals halted hormone treatment for LGBTQ+ youth in the state.

On March 1, 2022, the ACLU filed a lawsuit to challenge the state-sanctioned prosecution of parents who support their transgender children in obtaining medical care. On March 2, 2022, the District Court of Travis County issued a temporary restraining order in the ACLU suit, blocking DFPS from further investigating the plaintiffs. Shortly thereafter, on March 11, 2022, the district court issued a temporary statewide injunction, preventing enforcement of the Governor's directive. In May, however, the Supreme Court of Texas struck down the statewide injunction and ruled that while Abbott's directive did not bind DFPS to conduct these investigations, child welfare investigations into gender-affirming care could resume. DFPS then resumed investigations that had been temporarily halted by the statewide injunction, continuing to put families of transgender children at risk.

Texas is not the only state to take aim at transgender children and adults. The conservative right has made a national project of targeting LGBTQ+ youth and their parents. In 2021, state legislators introduced an unprecedented number of anti-LGBTQ+ bills. Twenty-one states introduced bills prohibiting gender-affirming medical care for transgender youth. Some of these bills penalize parents who support gender-affirming care for their transgender children. In 2022, this project remains in full effect. To date, states have introduced at least 162 anti-transgender and anti-LGBTQ+ bills. Some efforts have succeeded: recently, for example, the Florida Senate passed a bill that would prevent teachers from discussing LGBTQ+ issues in their classrooms.

It is unclear whether DFPS in Texas will continue investigating parents with transgender children. We do not yet know how many states might follow suit, or whether family court judges will find parents neglectful for complying with medically sound recommendations. While these are all important questions, this Essay focuses on a more fundamental aspect of family regulation in the carceral state: the way the family regulation system weaponizes fear to control marginalized families.

I employ the term “weaponizing” to describe how state actors--whether intentionally or unintentionally--use a structural environment that induces, benefits from, or relies on fear, ultimately producing further marginalization. With some exceptions, popular reactions miss how the Texas policy draws on a system that already uses its profound power and ability to inspire fear in marginalized communities.

Building on my forthcoming scholarship and recent opinion pieces by Professor Dorothy Roberts and Professor Mical Raz, this Essay argues that the Texas directive's weaponizing of the family regulation system fits into a much larger project of producing fear to maintain white, heteronormative order through family regulation. White, middle-class, heteronormative norms dictate the standard of child neglect. Those who deviate from the social norm are punished. Here, the weaponizing of fear plays a central role in maintaining hegemonic structures.

While this Essay focuses on the weaponizing of fear against parents entangled in the family regulation system, it is important to note that the system harms children by targeting their parents. The interests of children cannot be viewed solely in isolation from the interests of their parents. Indeed, Professor Roberts points out that interference with the child-parent relationship is “an awful injury to the child.” Professor Doriane Lambelet Coleman has long argued that the invasive nature of the family regulation system relies on the suspension of the “legal presumption that the children's interests are aligned with those of their parents.” State intervention into familial relationships is particularly common for Black and LGBTQ+ parents. These families are the focus of this Essay.

As scholars have discussed at length, the government has long used criminalization as a tool of social control. Against this background, a growing body of scholarship discusses how the family regulation system expands the carceral state's control of marginalized families and parenthood.

By examining the way that fear structures parents' experience of the family regulation system, this Essay also complicates the argument that ambiguous legal definitions are to blame for the system's harms. Some scholars identify the vague definitions of child neglect as a central issue in family regulation law. Similarly, in its pending lawsuit, the ACLU argues that Governor Greg Abbott, Attorney General Ken Paxton, and the DFPS Commissioner used the directive to “create a new definition of ‘child abuse”’ under state law.” Ambiguous definitions certainly permit Child Protective Services (CPS) to fall back on harmful stereotypes during their subjective assessments of parents. However, there is little reason to believe that a clearer definition of child neglect would significantly alter deeply entrenched mechanisms of control.

We cannot define our way out of deeply held beliefs about the autonomy of marginalized parents, children, and their communities. Family regulation actors have stereotyped Black and LGBTQ+ parents as unfit, neglectful, and even dangerous. Similarly, they have depicted Black survivors of domestic violence as weak and incapable of protecting their children. And to date, popular discourse marks marginalized communities as pathological spaces. We will not define our way out of anti-trans violence, anti-Blackness, and their intersections. Regardless of how we define the family regulation system's key terms, fear fits comfortably within the family regulation system's core features of control and punishment. Indeed, as the Essay will discuss, fear is a driving feature of the system.

This Essay proceeds in three parts. Part I summarizes the ways in which the family regulation system disproportionately harms parents and children with marginalized identities. Current research and mainstream discourse rarely focus on Black LGBTQ+ parents targeted by the family regulation system. This Essay begins to fill that gap. Part II identifies fear as an integral part of the family regulation apparatus. It traces the way that fear of structural state violence meets specific fear of the family regulation system. Together, compounded fears exacerbate harms against Black LGBTQ+ parents and other marginalized families. Part II briefly examines the conditions of fear produced by the family regulation system and the narrow ways in which fear is discussed in family regulation court decisions. Finally, Part II locates the Texas directive within the context of fear. It argues that the narrative that the family regulation system keeps children safe from “unfit” parents obscures how fear shapes families' experience with the system. Part III argues that ongoing state targeting of LGBTQ+ families must be understood in the larger context of family regulation. The anti-trans Texas directive marks the latest iteration of a system that subordinates and traumatizes marginalized families instead of keeping them safe.

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This Essay has shown that Governor Abbott's weaponization of the family regulation system against the most vulnerable families in Texas is not an anomaly. Anti-LGBTQ+ policy in Texas both relies on and feeds into a landscape of fear. That fear is exacerbated for parents with marginalized identities. Because we cannot discuss the Texas directive without also understanding the context that surrounds it, opponents of the directive and policies like it must abandon too-narrow focuses. Instead, advocates must interrogate the anti-Black, heteronormative logics and broader structures that drive the family regulation system.

Interrogating those logics and structures will require both advocates and academics to recognize the experiences of Black LGBTQ+ parents. To date, little research has examined Black LGBTQ+ parents entangled in the family regulation system. This research gap alone is problematic and indicates a larger disregard for the impacts of intersectional marginalization. But the underrepresentation of intersectional perspectives in research also favors dominant groups and hinders scholars from producing of frameworks that conceptualize marginalized experiences. Anti-Blackness and the targeting of LGBTQ+ individuals are both wrapped up in the project of white heteronormative supremacy. The struggles to dismantle anti-Blackness, homophobia, and transphobia are intrinsically linked. Having identified Black LGBTQ+ parents as a particularly vulnerable group, this Essay recommends that future research focus more deeply on the specific experiences of Black LGBTQ+ parents impacted by the family regulation system and how the reality of fear should shape advocacy strategies.

Popular discussion around Texas policy and legislation is missing two critical perspectives: first, an intersectional lens that includes LGBTQ+ parents of color; and second, a broader discussion of the family regulation system's positionality within the carceral state. Those who want to protect the most vulnerable families must interrogate how fear of the family regulation system is weaponized against marginalized parents generally. Even if Texas policy does not lead to large-scale investigations and separation of families, the damage is done: the directive has fed the coercion that marginalized families face every day. Marginalized families' deep-seated fears are historically grounded in the punitive continuum that colors the family regulation system. By using the family regulation system to criminalize families that deviate from white, cisgender, heterosexual norms, policies like the Texas order advance a broader project of inflicting and weaponizing fear to maintain the status quo.

Assistant Professor of Law at Brooklyn Law School. Former William H. Hastie Fellow at the University of Wisconsin. Former Co-Director of the Family Defense Clinic at Cardozo Law School. Former Public Defender in the family defense practice of The Bronx Defenders.