S. Lisa Washington, Weaponizing Fear, 132 Yale L.J. Forum 163 (2022).
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 heteronormativiy 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.
