abstract. In a letter dated February 22, 2022, Texas Governor Greg Abbott directed the commissioner of the Texas Department of Family and Protective Services “to conduct a prompt and thorough investigation of any reported instances” of what he called “abusive sex change procedures.” Many condemned the weaponizing of the child welfare system against parents supporting their children. Some highlighted that the directive misuses the vague definitions of child abuse to target LGBTQ+ youth and their families. While I agree with both critiques, I suggest that this framing insufficiently captures the ways the family regulation system—often called the “child welfare system”—fits squarely into the broader project of controlling marginalized families. The issue is not primarily the Texas directive’s misuse of the system but the system itself.
This Essay argues that the directive invokes preexisting, deep-seated fears of violence committed or perpetuated by the carceral state against the most marginalized families. Whatever the long-term viability of the directive, it has already exacerbated those fears. The family regulation system has the power to separate families and intrude on the most intimate parts of family life. Fear of state supervision and family separation takes a tremendous toll on impacted families. State actors weaponize this fear by leveraging, whether intentionally or unintentionally, a structural environment that induces, benefits from, and relies on fear, making it easier to control families. This weaponizing of fear to control families, in turn, produces further marginalization.
This Essay outlines the conditions of fear in the family regulation system and examines the ways that fear is and is not discussed in family regulation court decisions. It explores how fear is regularly weaponized against families with intersectional marginalized identities, and it identifies the targeting of LBGTQ+ youth and parents as a racialized movement. Popular conversations and legal scholarship rarely adopt an intersectional lens and bigger-picture framing that includes both Black LGBTQ+ children and Black LGBTQ+ parents. By conducting an intersectional analysis, this Essay reveals that the Texas directive draws on the inequality, anti-Blackness, and heteronormativity of the family regulation system to target and discipline the most vulnerable families. This Essay calls for scholars to foreground intersectional perspectives in the fight against anti-LGBTQ+ policies and the family regulation system more broadly.
In 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.”1 The letter emphasized that mandatory reporting laws required doctors, nurses, teachers, and other mandated reporters to report child abuse or else face criminal penalties.2 DFPS responded that it would comply with the Texas law.3 Following the Governor’s directive, DFPS initiated several investigations against parents with transgender children.4 A few hospitals halted hormone treatment for LGBTQ+ youth in the state.5
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.6 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.7 Shortly thereafter, on March 11, 2022, the district court issued a temporary statewide injunction, preventing enforcement of the Governor’s directive.8 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.9 DFPS then resumed investigations that had been temporarily halted by the statewide injunction, continuing to put families of transgender children at risk.10
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.11 Twenty-one states introduced bills prohibiting gender-affirming medical care for transgender youth.12 Some of these bills penalize parents who support gender-affirming care for their transgender children.13 In 2022, this project remains in full effect. To date, states have introduced at least 162 anti-transgender and anti-LGBTQ+ bills.14 Some efforts have succeeded: recently, for example, the Florida Senate passed a bill that would prevent teachers from discussing LGBTQ+ issues in their classrooms.15
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.16 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 system17 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.18 With some exceptions,19 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 scholarship20 and recent opinion pieces by Professor Dorothy Roberts21 and Professor Mical Raz,22 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.23 Those who deviate from the social norm are punished.24 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.”25 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.”26 State intervention into familial relationships is particularly common for Black and LGBTQ+ parents.27 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.28 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.29
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.30 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.”31 Ambiguous definitions certainly permit Child Protective Services (CPS) to fall back on harmful stereotypes during their subjective assessments of parents.32 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.333435We 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.36 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.37 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.
I. intersectionality and family regulation
It is well established that the family regulation system disproportionately impacts Black children and parents.38 This Part highlights how the system produces specific harms for children and parents with intersectional marginalized identities, in particular Black LGBTQ+ children and parents. Against this background, this Part begins to identify the target of the family regulation system.
A. Intersectional Harms in the Foster System
While this Essay focuses on the weaponizing of fear against parents, the system also instills deep fear in children with intersecting marginalized identities. To understand the weaponizing of fear against parents, it is important to discuss children’s experiences in the family regulation system. Family separation is traumatizing for children,39 and children with marginalized identities bear the brunt of that trauma. Indeed, Black families are separated at higher rates than white families.40 Among the approximately 400,000 children in the foster system, Black and LGBTQ+ children are overrepresented.41 Many Black and LGBTQ+ children hold other intersectional identities and experience multiple forms of discrimination.42
1. LGBTQ+ Youth
Some studies suggest that approximately 30% of youth in the foster system identify as LGBTQ, compared to 11% in the general population.43 Once in the foster system, LGBTQ+ youth face distinct vulnerabilities. They tend to remain in the system longer, are more likely to be moved from one foster home to the next, and frequently end up in hostile group-home settings.44 A survey of LGBTQ youth in the New York foster system found that 100% of LGBTQ youth in group homes reported verbal harassment; 70% reported physical violence.45 Studies suggest that up to 40% of homeless youth are LGBTQ,46 with even higher numbers of youth experiencing periods of instable housing.47 LGBTQ+ youth in the foster system experience negative mental, emotional, and physical health outcomes.48 In 2019, a lawsuit against the state of Oregon challenged widespread discrimination against LGBTQ+ youth in the foster system.49 The lawsuit argued that the state’s foster system harmed those it purports to protect.50 The plaintiffs alleged that LGBTQ+ children “are often deprived of safe and stable placement” and are not provided with the support and resources necessary to survive after they leave the foster system.51 When they eventually exit the foster system, these children frequently end up homeless.52
2. LGBTQ+ Youth of Color
The trauma of the foster system is intensified for LGBTQ+ children of color, who are especially overrepresented.53 This disparity is particularly pronounced for Black LGBTQ+ girls.54 When children’s marginalized identities intersect, they are more likely to experience mental and physical harms, discrimination, and violence in and after the foster system. LGBTQ+ youth of color are particularly at risk for poor outcomes in the foster system due to a “range of intersecting vulnerabilities,” including racism, sexism, gender identity, sexual orientation, socioeconomic class, and psychiatric vulnerabilities during and following foster care.55 A study by the Annie E. Casey Foundation found that LGBTQ youth of color are more likely than their heterosexual, cisgender peers to cycle through at least ten different placements while in the system.56
For some Black LGBTQ+ youth in the foster system, fear is a constant. Black LGBTQ+ children have described the regular harassment and violence they have suffered—abuse that actors in the foster system have ignored or even participated in.57 One Black gay youth explained that when he was in the foster system, his white foster family told him that they would kill him if he were gay; he felt so unsafe that when he was moved to a group home, he began sleeping with a knife under his pillow.58 Once out of the foster system, LGBTQ+ youth of color experience worse physical and mental health outcomes, instable housing, and financial insecurity at higher rates than their white, heterosexual, cisgender peers.59
B. The Targeting of Black LGBTQ+ Parents
Caregivers who hold multiple marginalized identities face their own—often overlooked—uphill battles. For example, although family regulation authorities have long removed children from lesbian mothers,60 lesbian mothers’ narratives do not “occupy most legal scholarship, public policy advocacy, test case litigation, or media portrayals.”61 Indeed, there is little empirical data on LGBTQ+ parents who are impacted by the family regulation system. Current discourse and data collection are, for the most part, limited to LGBTQ+ individuals as foster or adoptive parents.62 In these discussions, the intersectional identities of Black LGBTQ+ parents entangled in the family regulation system are frequently rendered invisible. As a growing body of scholarship points out, the family regulation system mirrors and intersects with the criminal legal system.63 And much like the criminal legal system, the family regulation system must be examined intersectionally.64
Both children and parents entangled in the system experience intersectional harms. Existing data and examples highlighted by scholars, popular media outlets, and my own practice experience suggest the pervasiveness of intersectional bias by the family regulation system. The disparate treatment of parents and children with intersectional marginalized identities is multifaceted and complex. In this Section, I will discuss only a few central aspects and corresponding examples.
The family regulation system may characterize LGBTQ+ parents as “unfit” to care for their children. Professor Nancy D. Polikoff discusses one such case, the story of a lesbian mother named Hilda.65 When Hilda’s children entered the foster system, a faith-based agency was assigned to provide mandated reunification services.66 A family regulation caseworker working for the agency informed Hilda that her sexual orientation needed to be “fixed” to avoid intergenerational effects of sexual “preference.”67 A family court judge later terminated Hilda’s parental rights.68
The family regulation system enables caseworkers to punish lesbian mothers like Hilda. Once parents are under investigation, agency caseworkers hold significant power over families. Caseworkers monitor and document the child-parent relationship while a child is in the foster system.69 At permanency hearings, caseworkers recommend either continued family separation or reunification. Their recommendations are based on their own perception of parental behavior and progress. Caseworkers regularly remain in the lives of families for long periods of time, producing a uniquely coercive power dynamic.70 In Hilda’s case, this power dynamic allowed her caseworker to dictate heteronormativity as a standard for child safety.
The family regulation system also disciplines transgender parents for their gender identities. In M.B. v. D.W., the Kentucky Court of Appeals affirmed the trial court’s decision to terminate a legal parent-child relationship based on the child’s emotional distress caused largely by a parent’s gender-affirming surgery.71 Strikingly, the court chose to remedy the emotional distress of the child by severely and permanently intervening in the parent-child relationship.72 The opinion makes clear that the parent wished to remain in her child’s life.73 The parent requested a less drastic intervention, which could have included family therapy, a custody arrangement, or even a temporary break from visitation.74 Instead, the court terminated the family relationship.75 The trial court’s decision characterized the gender-affirming surgery as “self-centered.”76 The court of appeals found no error in the lower court’s conclusion that the transgender parent was “primarily responsible” for the emotional distress of the child, and it affirmed the trial court’s neglect finding.77
LGBTQ+ parents are keenly aware that their identities may make them targets for family regulation intervention. In one participatory-research study of parents directly impacted by the family regulation system in New York City, an LGBTQ+ parent shared concerns about their disparate treatment by caseworkers: “I’ve learned the hard way that they don’t respect us. Their favorite question is ‘Which one of you actually had the child?’ . . . I just don’t think that that matters. It just doesn’t matter.”78
A 2016 study found that if a Black mother was lesbian or bisexual, her child was more likely to be removed than if she were heterosexual.79 As a public defender, I witnessed similar discrimination against Black LGBTQ+ parents and their partners. In one case,80 CPS removed all four children from their mother. Instead of placing the children with her partner, a transgender man whom the children knew as their father, CPS placed the children in the foster system with a stranger. One child’s health quickly deteriorated, and they were ultimately hospitalized. The agency did not even consider the mother’s transgender partner and de facto father of the children as a resource. Only through family regulation intervention did the children eventually learn that their mother’s partner was not their biological father.
* * *
The family regulation system is fertile ground for the targeting of parents and children with intersectional marginalized identities.81 Unequal power dynamics and anti-Black, heteronormative norms are a feature of the system, not a bug. Adopting an intersectional analysis reveals that the Texas directive weaponizes the inequality, anti-Blackness, and heteronormativity of the family regulation system to target and discipline the most marginalized families. The framework of intersectionality helps identify “where power comes and collides, where it interlocks and intersects.”82 The family regulation system is one such site of concentrated power and fear. The discussion around law and policy in Texas is missing some of these deep connections. By adopting an intersectional lens, however, we can identify fear as a structural logic within the family regulation system. The following Part argues that the family regulation system not only produces fear but relies on fear in its operation.
II. inspiring fear
For many marginalized families, the fears of individually inflicted violence and state-sanctioned violence—violence promoted, produced, or sustained by the state—collide. In other words, individual violence does not occur in a vacuum; it exists against the backdrop of social structures, including underprotection by the state and violence inflicted by the state.83 In this way, fear is sustained by families’ awareness that they may be individually targeted and that their targeting may be structurally reified as legitimate. This Part will show that the growing movement to criminalize LGBTQ+ parents and their children, including in Texas, must be understood in the context of both pervasive state-sanctioned violence against trans people and the fear of the family regulation system in marginalized communities.
A. State-Sanctioned Violence Against Black LGBTQ+ Individuals and LGBTQ+ Individuals of Color
Just a few days after Texas issued its directive targeting trans youth and their parents, a trans woman of color was found shot dead in her Houston apartment.84 Texas is amongst the states with the highest incidence of fatal violence against trans women of color.85 Naomi Green, a fellow with the Human Rights Campaign (HRC), stated in October 2021:
Since I moved to Dallas 3 years ago to the date tomorrow, this is the eighth transgender woman of color who has been shot. The seven who were killed were all Black and the Latina survived. I didn’t know that when I moved here I was moving to a place where being trans means being more deserving to die.86
Violence87 against Black trans individuals is pervasive. HRC reports that 2021 marked an all-time high of violence against trans and gender-nonconforming people since 2013, when HRC began tracking these attacks.88 In 2021, most victims were Black transgender women.89 84% of victims of fatal violence against transgender people are people of color.90 85% are transgender women, and 77% are transgender women of color.91 These numbers are conservative, given the underreporting and misreporting of violence against transgender people.92
Individually inflicted violence against Black trans women occurs against the backdrop of state-sanctioned violence, including violence carried out by state actors like the police. According to one national survey, 22% of transgender people who have interacted with the police report that the police harassed them; 6% report that the police assaulted them.93 Black transgender individuals report much higher rates: 38% report harassment in police interactions and 15% report assault.94 Notably, states leading efforts to criminalize transgender people are amongst the states where the most trans people have been killed. This includes Texas and Florida.95
This is the hostile environment in which the criminalizing of parents of transgender youth is swiftly advancing. But there is more. The family regulation system exploits this landscape of fear, weaponizing it against marginalized communities. The following Section discusses the conditions of fear in the family regulation system and how they impact Black LGBTQ+ parents.
B. Fear of the Family Regulation System
Many white middle-class families will never encounter the family regulation system. They are less likely to be reported to the system or investigated by it.96 Their children are less likely to be removed from their homes, and their parental rights are less likely to be threatened, much less terminated, compared with Black families.97 For Black parents in impoverished communities, by contrast, family regulation is an “unavoidable system” and a source of near-constant fear.98
This Section will highlight only a few areas in which fear is concentrated. This is in no way a comprehensive account of fear in and of the system. Instead, this Section provides examples of the pervasiveness of fear in the system and the way the system weaponizes fear to punish families that depart from white, middle-class, heterosexual, and cisgender norms.
1. The Conditions of Fear
i. Tools of Coercion
The family regulation system has numerous tools of coercion at its disposal.99 The separation of families—temporary and permanent—is the most punitive tool.100 Even when children are not actually removed, the mere threat of removal can feel constant for parents.101 Surveillance,102 mandatory and often inappropriate services,103 unannounced home visits, and intrusive searches of private spaces are other powerful tools.104
Furthermore, interaction with the family regulation system brings other, enmeshed adverse consequences. For example, a neglect or abuse investigation can impact current and future employment and shelter placements for homeless families.105 Family regulation involvement can also provoke immigration consequences, including increased risk of detention and deportation.106 This bundle of coercive mechanisms inspires fear in families, requiring parents to conform to the demands of CPS or risk continued supervision, enmeshed consequences, and even the “death”107 of their family through the termination of parental rights.
ii. Constant Presence
The fear of the family regulation system in marginalized communities is exacerbated by the unavoidability108 and constant presence109 of CPS caseworkers and the institutional support caseworkers receive from law enforcement.110 As a public defender in New York City, I encountered many parents who were acutely aware that CPS targeted their neighborhoods. This experience is corroborated by a participatory research study published by Rise in 2021.111 The researchers surveyed fifty-eight impacted parents, conducted ten focus groups, and reviewed relevant literature.112 The study found that families ensnared in the family regulation system live in fear.113 One parent said about their experience with CPS: “They’re all over the place. In school, in daycare. They’re just all over the place, but for the wrong reasons.”114 Another participant stated, “It is hard, hard—I’m going to say ‘hard’ again, to avoid [CPS].”115 Parents are not only impacted by the family regulation system’s constant presence in their community, but also by the psychological impact of any potential family regulation intervention: “It’s terrifying. It’s like a stamp. And then knowing that you do have a stamp. . . . You know, it’s like a mark.”116 Another participant stated, “[It has] a lasting impact—PTSD. When [my child] falls down, gets a bump or a scratch, his doctor’s visits—it’s just so stressful now. Like, I can’t even enjoy him doing kid things . . . . I can’t even let him be him.”117 For these parents and others like them, the family regulation system is deeply traumatizing.118
Given the reports of abuse, discrimination, and long-term adverse outcomes for children in the foster system,119 the fear of what might happen to a child while in state custody is understandably widespread. Foster children experience sexual abuse, physical abuse, and neglect. Professor Shanta Trivedi argues that despite the system’s claim of keeping children safe, “there is substantial evidence that children are more likely to be abused in foster care than in the general population.”120 The numerous media stories of children killed or abused in the foster system exacerbate parents’ fears that if they lose custody, their children will face harm.121 As discussed above, LGBTQ+ youth of color are placed into more dangerous foster placements and remain there for longer periods of time. Parents, including parents of LGBTQ+ youth of color, are rightfully afraid of what may happen to their children in the foster system.
iii. The Network of Fear
The family regulation system’s coercive tools and its constant presence in marginalized communities create omnipresent fear. The fear is not limited to direct contact with the family regulation system. It extends to any institution that could potentially report a family to the system.122 For example, some survivors of domestic violence avoid the police because they fear that contacting law enforcement may lead to a CPS investigation against them.123 Undocumented survivors of domestic violence may fear deportation and avoid state assistance.124 Parents may even avoid medical providers because they are afraid to lose their children.
These fears are not irrational. While some parents are met with compassion and care when they bring their child into a hospital to treat an injury, marginalized parents are met with suspicion.125 Family defense attorneys juxtapose stories of middle-class white parents and low-income Black and brown parents seeking emergency care in New York City hospitals.126 Low-income Black and brown parents are interrogated and discredited, and their children may be removed from their home by the family regulation system. Nonwhite children are more likely to be reported to CPS by hospital staff.127 Hospitals are also more likely to conduct a skeletal survey of an infant—a key component of the evaluation for suspected child abuse128—if the child is Black.129 Nonwhite families’ justified fear of service providers indicate how deeply embedded the potential impacts of the family regulation system are in marginalized families’ consciousness.
The fear of the family regulation system is so reliable that abusive partners and hostile neighbors can weaponize it as retaliation.130 Reports also indicate that some public institutions have utilized the family regulation system to enforce their own policies. For example, public schools have weaponized the family regulation system to resolve conflicts with parents or enforce school policy.131 Similarly, homeless parents seeking shelter placements in Washington, D.C., have been turned away and then told that if they were unable to find a placement elsewhere, they would be reported to CPS.132 In these ways, fear of the family regulation system informs marginalized parents’ interactions with other state institutions and providers, creating a network of fear.
2. Black LGBTQ+ Parents & Fear
The threat of family regulation intervention is racialized, much like the weaponizing of the police against people of color.133 Indeed, examples from directly impacted families, scholarly research, and practitioner experience emphasize Dorothy Roberts’s observation that Black communities “live in fear of state agents entering their homes, interrogating them, and taking their children as much as they fear police harassing them in the streets.”134Although little empirical data on Black LGBTQ+ parents ensnared in the family regulation system exists, there are reasons to believe that the family regulation system uniquely impacts Black LGBTQ+ parents. All too often, however, discussions of LGBTQ+ identity, race, and family regulation have focused on foster and adoptive parents instead of those targeted by the family regulation system.135
The family regulation system presents a context in which the overlapping of race, gender, and sexuality is particularly salient. A study by the Williams Institute estimates that 1.2 million adults identify as both Black and LGBTQ.136 Black same-sex couples are more likely to raise children than white LGBTQ couples.137 Fifty-six percent of Black LGBTQ households are low-income.138 Notably, poverty is a strong indicator of family regulation involvement.139 A 2016 study suggests that Black mothers who identify as lesbian or bisexual are more likely to lose custody of their children to the state.140 There is other anecdotal evidence of disparate outcomes for queer Black mothers entangled in the family regulation system.141 Still, Black LGBTQ+ parents entangled in the family regulation system remain largely invisible.142 This Essay does not purport to identify all the ways that fear of the family regulation system uniquely impacts parents who are both Black and LGBTQ+. Rather, it offers a few perspectives to help frame the issues for future scholarship.
First, fear of state intervention leads some parents to avoid health care providers. This is particularly true within Black, immigrant, and low-income communities, where awareness of the breadth and depth of the carceral state proliferates.143 Mental health and other health issues disproportionately affect Black LGBT individuals.144 According to a study conducted by the Williams Institute, Black LGBT adults were almost twice as likely to report having been diagnosed with depression by a medical provider compared to Black non-LGBT adults.145 Already existing health disparities may widen when Black LGBTQ+ individuals avoid treatment because they fear their families will be disrupted by the state. In a vicious cycle, the government may use a parent’s fear-driven avoidance of mental health treatment as evidence of the parent’s noncompliance with the family regulation system and argue that this constitutes a child-safety issue.146 In this way, state actors may penalize fear of the system.
Second, parents with intersectional identities and parents who support children with intersectional identities risk that their identities or support will be conflated with notions of parental “unfitness.” Once parents are on the radar of the family regulation system, they may remain in the system for months or years.147 What the system identifies as a parental deficit is not only subjective but also enmeshed with racialized and gendered parenting ideals.148 One way to characterize this intersectional dynamic is that anti-Blackness and poverty funnel families into the system. Once there, Black LGBTQ+ families experience another layer of bias as their parenting is measured against a white, middle-class, heterosexual “norm.” The intersectional dynamic is perhaps even clearer the other way around: when families are “drawn into [the family regulation] system based on illegitimate pretexts”149 and then remain under investigation for lengthy periods of time. In this way, investigations that begin with the questioning of gender-affirming care for children can quickly expand into other areas of parenting. Given the attacks on LGBTQ+ parenting more generally,150 parents with multiple marginalized identities who are ensnared in the family regulation system are vulnerable to racialized and heteronormative assessments of their parenting.
Finally, once LGBTQ+ parents are trapped in the system, their family structures risk being devalued. For example, caseworkers may place children in the foster system with a stranger, instead of with a family member, due to the family member’s nonheteronormative identity.151 This devaluing of nonheteronormative family structures, combined with the system’s enormous power to supervise and separate families, can trigger a rational fear in parents with multiple marginalized identities.
The compounded impacts of multiple marginalized identities funnel people into the web of family regulation. Poor and Black families are particularly vulnerable. Once in the system, white heteronormative standards inform the assessment of parental fitness and devalue nonheteronormative family ties, further exacerbating the subordination of already marginalized families. The unique challenges faced by Black LGBTQ+ parents in the family regulation system can intensify these fears.
Directly impacted parents, practitioners, and advocates have highlighted the fear endemic to the family regulation system. In 2020, Mother Jones wrote about Sarah,152 a former caseworker, in the context of demands to abolish the family regulation system.153 Sarah described how Black families lived in fear of the system while white families had never encountered it: “There’s one group of people walking around not knowing that [the Administration for Children’s Services (ACS) in New York City] exists, and there’s another group of people walking around living in fear of ACS.”154
In 2021, families’ fear of the family regulation system was a central point of testimony for a bill proposing a child-welfare-specific Miranda Right in the State of New York.155 Emma Ketteringham, managing director of the Family Defense Practice at the Bronx Defenders, testified that the “family regulation system invokes fear and trauma for Black and Latinx families.”156 Zainab Akbar, Managing Attorney of the Family Defense Practice of Neighborhood Defender Service of Harlem, testified that “Black and brown parents live in fear of the government using its vast resources and unchecked power to separate them from their children here in New York State.”157 In the end, however, the bill that would have informed parents of their right to legal counsel in “child welfare” investigations failed to pass in the 2021 legislative period.158 Thus far, the New York State legislature has failed to recognize the pervasiveness of fear in the system and protect families accordingly.
3. The Erasure of Fear in Court Decisions
Despite the pervasiveness of fear in marginalized families’ experiences of the family regulation system, courts rarely consider fear as a factor driving interactions, perceptions, and outcomes.159 To be sure, some parents have shared how fear shapes their interactions with the system in court proceedings. Take, for example, the petitioner’s brief before the Supreme Court of Pennsylvania in a case about whether CPS caseworkers can conduct searches of a family’s home without a warrant. While the court decision does not discuss parents’ fear of family regulation intervention, the petitioner’s brief does:
That fear, that government employees can force their way into your home, and interpret something differently than you do, can also make one seem defensive. . . . What is clear is that Mother had an aversion to the government intruding into her home.160
In a handful of instances, courts have explicitly referenced parents’ fear of family regulation. In Pratt v. Pitt County Department of Social Services,161 the court noted Constance Pratt’s claim of emotional suffering due to the removal of her children: she had been “emotionally traumatized by CPS workers continuously removing” her children.162 Or consider In the Interest of E.L.C.163 The decision summarized the mother’s fear of the family regulation system: “Mother ‘had previously been in a CPS case,’ and she feared she could lose her children. At ‘the thought of CPS entering [her] life again and losing [her] children,’ Mother ‘got nervous and scared, and so [she] left.’” 164 The court noted a father’s similar fear in In the Interest of A.B.:
Father said that he did not have anything to hide but was scared that CPS was not going to believe anything that he said about where the injury came from. He said that he had finally gotten his children back and felt like his life was where it needed to be, so he was afraid of losing his children again.165
However, these explicit discussions of fear in court cases are the exception.
The absence of a critical analysis of how fear shapes parental interactions with the system is partly due to the compliance-driven nature of family regulation.166 For example, although caseworkers regularly testify against parents in court and make decisions to separate families, parents are expected to cooperate with them over months and sometimes years.167 Despite this inherently adversarial relationship, noncooperation is held against parents. As Professor Amy Sinden observes, parents targeted by the family regulation system are pressured to “cooperate rather than assert [their] rights.”168 When the family regulation system punishes parents for refusing to cooperate with CPS and for invoking their parental rights, it disregards their rational fear of caseworkers and the system they work for.
Given the pervasive fear of the system and its devastating effects on families with marginalized identities, we should expect courts to grapple with these dynamics in decisions—especially when allegations center around a parent’s reluctance to cooperate with CPS. Instead, cases often focus on parental “noncompliance” or “lack of insight,” 169 instead of the context and environment of fear. In other words, the problematic expectation that “good parents” cooperate with CPS further renders fear invisible.
When I was a public defender, numerous parents asked me whether they had to continue working with a caseworker who traumatized them by physically removing their child or threatening the same. Bringing these concerns up with the court could harm parents by feeding into a narrative that would characterize them as “difficult.”170 Here again, Black parents are particularly vulnerable to biased misperceptions. A Michigan study showed that CPS investigators routinely characterized Black parents as “hostile,” “aggressive,” or “angry” in CPS notes and court reports, without identifying a factual basis for these descriptions.171 These documents fail to interrogate how fear informs marginalized parents’ perception of punitive family regulation intervention. Taken out of context, these racialized and often gendered statements harm families.172
C. Against the Backdrop of Fear: The Texas Directive
The Texas directive promotes broader, racialized “child welfare” trends. On the one hand, white, upper-middle-class families likely have easier access to gender-affirming care. If the Texas directive targets families that seek out gender-affirming care, then families with more access to such care may bear the brunt of the law. At first glance, the Texas directive thus may not present an example of the racialized, classist harms of the family regulation system.
There is reason to believe, however, that the Texas policy targeting LGBTQ+ parents and their children will disproportionately impact the most marginalized families, including those with multiple marginalized identities. The family regulation system has a lengthy history of targeting nonwhite, nonheteronormative families. An investigation triggered by the directive will impact those who are already vulnerable. In fact, as is true nationwide, Black families are overrepresented in Texas’s family regulation system.173 Any policy that encourages investigations based on vague concerns will likely have a more severe impact on Black families than white families.
As Professor Kelley Fong describes, the initiation of a family regulation case “opens a can of worms.”174 What begins as an investigation into gender-affirming care, for example, can quickly turn into an intrusive investigation into other aspects of family life. As I discuss elsewhere, a CPS investigation may shift in focus as new potential allegations emerge.175 These allegations often circle around issues of poverty.176 For example, when a family loses its housing, CPS may open an investigation against the parents rather than make meaningful efforts to bring economic stability to the family.177 At the very least, the Texas directive and any similar strategies broaden state surveillance generally, with disproportionate impacts for those who are most vulnerable to surveillance. In other words, the Texas directive provides the state with yet another reason to initiate intrusive investigations into the lives of those it already targets. Further, white middle-class parents, when targeted, are more likely to have the financial resources to invoke their rights and successfully navigate legal challenges.178 Low-income Black parents, on the other hand, will often lack the resources to defend themselves against family regulation investigations effectively.179
LGBTQ+ parents targeted by the family regulation system, including those with other marginalized identities, have not been the primary focus of LGBTQ+ advocacy.180 The Texas directive has brought up family regulation as an LGBTQ+ issue, but it has not changed the centering of white, upper-middle-class families in the conversation. The potential reach of the Texas directive and similar policies could mark an opportunity for interest convergence of white middle-class parents—traditionally unaffected by the system—and Black and brown parents— disproportionately impacted by the family regulation system. However, it could also further perpetuate the idea that the family regulation system generally targets “bad parents”181 while Texas policy targets “good parents.” This will depend on whether the policy is viewed as part of the family regulation system or a misuse of the system. To prevent the latter view from taking root, the movement must actively make space for and center the long history and current experiences of Black LGBTQ+ parents and their children with the family regulation system. The following Section elaborates on this history and its narrative reinforcement.
D. Narrative Reinforcement
The family regulation system, in order to legitimize the infliction of pervasive concentrated violence on marginalized families, has always depended on the narrative that the state keeps children safe from “unfit” parents. In the postemancipation period, purported concerns for children’s welfare were used to keep Black children from their liberated mothers.182 Indigenous children were removed from their parents to “civilize them” for their own good. The Children’s Aid Society removed poor immigrant children in New York City from their parents and sent them to work in the Midwest to “protect” them from their parents until the 1920s.183 Today, the narrative of abusive parents endangering their children persists184 without a critical interrogation of structural issues underlying poverty and racialized inequality.185 For example, the National Social Work Association (NASW) condemned Texas’s efforts to target LGBTQ+ children and their families through the “child protective” system. NASW emphasized correctly that the Texas directive from February fits into a much “larger anti-LGBTQ+ movement taking place across the nation.”186 The letter, however, did not address the broader targeting of marginalized families by a system that ostensibly should protect children and support families.
Those with lived experiences of the family regulation system offer knowledge of the harms that the system produces and perpetuates.187 Their real-world fear of the system is part of that knowledge. To accurately understand the family regulation system, advocates and scholars must incorporate impacted families’ experiences into the larger discourse.188 In the context of the Texas order, for example, including the experiences of Black LGBTQ+ parents may help disrupt the notion that the targeting of LGBTQ+ children and parents is primarily a white issue. It can also bring to light that discrimination against LBGTQ+ parents goes far beyond barriers for LGBTQ+ adoptive and foster parents. Therefore, we must change the narrative to include the stories of those who have actually experienced the family regulation system. Doing so will provide us with a more robust understanding of the family regulation system’s impact on families, including Black LGBTQ+ families. It may also open up ways to promote family safety outside of coercive systems.
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.189 But the underrepresentation of intersectional perspectives in research also favors dominant groups and hinders scholars from producing of frameworks that conceptualize marginalized experiences.190 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. I thank Christopher Lau, Shanta Trivedi, and the participants and organizers of the New York Area Family Law Virtual Workshop for comments and feedback. The editors of the Yale Law Journal provided excellent editorial suggestions. I thank them for their thorough engagement with this Essay.