Last month, Texas Gov. Greg Abbott ordered the state’s child welfare agencies to investigate parents who provide their transgender children with gender-affirming care on grounds that this constitutes child abuse. Although a temporary injunction has blocked this from happening immediately, the directive has had a chilling effect on the families of transgender children and their health-care providers.
Abbott’s directive is an egregious violation of the civil liberties of transgender children and their families and reflects the nationwide failure to enforce constitutional limits on the power of child protection agents to conduct traumatizing investigations. As the Texas order plays out in court, we ought to follow states that are taking significant measures to protect the constitutional rights of parents and children.
Take Pennsylvania, for example: In May 2019, child protective services received an anonymous report about a woman who was protesting in front of the Philadelphia Housing Authority. The unidentified source alleged that the woman was homeless and might not have fed the child who accompanied her during the eight hours she stood outside the building. Without any evidence to corroborate the accusations, the county child welfare agency tracked down the mother’s address and sent a caseworker to the family home to investigate. The parents refused to let the caseworker in, and a trial judge ordered the mother to allow the agency to enter and inspect the residence. The mother’s appeal, on grounds that the judge’s order violated her Fourth Amendment rights, eventually made its way to the Pennsylvania Supreme Court.
The mother’s encounter with a child welfare worker at the door is not unusual. In 2018 alone, 3.5 million children were involved in an investigation by child protective services, sometimes triggered by an anonymous tip to a hotline. Home inspections can have grave consequences: They may lead to intensive monitoring that lasts for years, forced separation of children, and, at the extreme, the permanent termination of parental rights. Compared with police stops and arrests, child protection investigations dig far deeper into the private lives of suspects.
Even when no maltreatment is found — which happens in most cases — the investigation itself is traumatizing. Caseworkers can make multiple unannounced home visits at any time of day or night, pry into refrigerators, cabinets, and closets to look for evidence of neglect, and humiliate all the household members with intense interrogations. Sometimes they even pull terrified children from their beds and strip search them. Despite the invasion of privacy caused by these searches, caseworkers rarely take legal steps to protect parents’ constitutional right against unwarranted government intrusion in the home.
“Home inspections can have grave consequences: they may lead to intensive monitoring that lasts for years, forced separation of children, and, at the extreme, the permanent termination of parental rights.”
On Dec. 23, 2021, the Pennsylvania Supreme Court issued a landmark ruling in the case that makes a crucial dent in agencies’ power to disrupt families. The court held that Fourth Amendment protection against unreasonable searches and seizures, which requires a showing of probable cause, extends to home inspections conducted by child protective services.
To emphasize the gravity of the matter, the court quoted a 2021 U.S. Supreme Court case, Lange v. California: “freedom in one’s own dwelling is the archetype of the privacy protection secured by the Fourth Amendment; conversely, physical entry of the home is the chief evil against which it is directed.” The court concluded that the Constitution’s safeguard of our homes applies equally whether the government agent demanding access is a caseworker or a police officer.
In addition, the court issued a strong standard for showing probable cause, and ruled that to establish probable cause, the government must demonstrate that anonymous sources are reliable and point to a specific connection between the search and the allegations. In the Pennsylvania case, there was no evidence that the mother failed to feed her child during the protest and no need to inspect her home to determine if that accusation were true.
As a result of the decision, caseworkers in Pennsylvania may no longer force their way into homes based on anonymous allegations without first demonstrating probable cause to a judge. An amicus brief filed by the ACLU of Pennsylvania and Community Legal Services of Philadelphia also emphasized that robust Fourth Amendment protections are crucial to preventing racial injustice in a system where Black and Indigenous families are disproportionately targeted for surveillance and experience the worst outcomes.
The Pennsylvania decision provides critical recognition of families’ Fourth Amendment rights and should be a model for expanding constitutional protections in child welfare investigations.
Dorothy Roberts is a professor of Africana studies, law, and sociology at the University of Pennsylvania and author of the forthcoming “Torn Apart: How the Child Welfare System Destroys Black Families — And How Abolition Can Build a Safer World.”