Examining Jurisdictional Child Protections In Gender Dysphoria Contexts

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Child custody issues are some of the most heart-breaking and complex problems addressed by courts today, especially given the ever-changing nature of the state laws that govern these disputes.¹ Parents enjoy robust, even inalienable, attachments to their children,² constitutionally protected legal rights to direct their upbringing,³ and when disputes arise between parents, state laws provide strong protections for the parent/child relationship because it is typically considered to be in the best interests of children to maintain a relationship with both of their parents whenever possible.⁴ But when parents disagree on how to carry out that child’s upbringing, or when children appear to disagree with how their parents want to direct their upbringing,⁵ some states are providing new avenues to avert the established family law rules. This Essay will consider those avenues in the context of one of the most contentious metamodern trends in child rearing: gender dysphoria treatments.

Examining the national uniformity for custody jurisdictional challenges and how states interact under those rules will clarify the landscape of gender dysphoria challenges parents may face for their children. By exploring the history and application of the Uniform Child Custody Jurisdiction Act in the states, including the recent trends in state laws designed to avert those rules in instances of gender treatment, this Essay will provide an informal legal guide for parents who may face this issue in the coming school year. It will first explain the rules surrounding inter-state custody claims and then summarize how those rules should work pragmatically and uniformly in every courtroom in the nation. It will then offer recent state rules regarding gender dysphoria. Showing how rules conflict with established custody jurisdictional claims, this Essay will conclude by offering a brief informational guide for parents facing a gender transition custody conflict. The objective is to examine jurisdictional custody conflict procedures in the gender dysphoria context to help parents learn how to protect their children from harmful gender transition.

When custody claims between inter-state parents were developing, in the wake of expanded divorce rights in the 1950s and 60s, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Child Custody Jurisdiction Act (“UCCJA”) to help states avoid jurisdictional conflicts and re-litigation of custody decisions issued by courts in other states.⁶ The Act sought to aid states in their attempt to deter abductions, to protect the custody or visitation interests of the left-behind parent,⁷ and to promote interstate cooperation in custody matters by setting forth jurisdictional rules for custody determinations; this act seemed sorely needed by state courts.

Specifying which court should decide a custody case, without directing how the court should decide the case, the UCCJA deterred parents from destabilizing their child by taking him or her to another state jurisdiction to litigate custody.⁸ In the 1980s, Congress passed two federal rules that began to help empower the UCCJA with federal teeth: the Parental Kidnapping Protection Act (“PKPA”)⁹ and Violence Against Women Act (“VAWA”).¹⁰ The PKPA established national standards for asserting child custody jurisdiction. Also, it clarified a jurisdictional preference of the home state in which the child resided within the previous six months.¹¹ This prevented a child's parent from forum shopping and initiating legal action in a different state to obtain a more favorable court ruling.¹² The PKPA provides that a state cannot modify the child custody decree of a child’s home state without complying with the terms of the PKPA by affording full faith and credit to a home state’s rulings. If a state modifies an earlier child custody order without doing so, states are not required to recognize the later order under federal requirements for full faith and credit.¹³ This brought federal power to child custody jurisdiction claims in a child’s home state, where “home state” is defined as where the child had been living the six months before the action.¹⁴ The second federal statute that reshaped the UCCJA was the, enacted due to the severity of domestic violence and sexual assault.¹⁵ Family breakdown and child custody litigation may occur because of domestic violence and can cause a parent to flee to another state jurisdiction with the children to avert the threatened violence. These two federal rules required new applications of the UCCJA in child custody jurisdiction. In the 1990s, the National Commissioners of Uniform Laws worked together to create the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).¹⁶ While less than half of the proposals set forth by the National Commissioners on Uniform Laws have even been considered, much less enacted,¹⁷ the UCCJEA enjoys nearly unanimous adoption in various forms by forty-nine of fifty states evidencing the needs states were experiencing for such direction.¹⁸ While each state has adopted and codified its own form of the UCCJEA, a summary of how the Act works pragmatically will be helpful in understanding any specific state's adoption of these rules.

The UCCJEA sets forth four considerations for asserting jurisdiction in a child custody case, listed in order of priority: (1) the child’s home state i.e., where the child has resided for the vast part of the immediate six months previous to the commencement of the action;¹⁹ (2) significant connections that the child has with the forum state, such as at least one parent residing there, school registration and attendance, family associations, civic and church affiliations, and participation, etc.;²⁰ (3) the most appropriate forum;²¹ and (4) whether there is no other state that can properly assert jurisdiction.²² Prioritizing the home state jurisdiction, except in emergencies, the UCCJEA ensures that a court may not exercise jurisdiction if a proceeding is pending elsewhere consistent with the UCCJEA.²³ These requirements are based on the constitutional requirement for full faith and credit.²⁴

Consider a hypothetical example of two states, Arizona and Missouri, in conflict over the proper jurisdiction for a child custody proceeding. When the case is brought in an Arizona court (or any state court), the UCCJEA requires that the court first consider whether there is an initial custody ruling in another state.²⁵ For our example, a previous custody ruling is already in place in Missouri. In that initial ruling, the Missouri judge found that Missouri was determined to be not only the forum of initial child custody jurisdiction but also the home state of the child as being where he or she had resided for the previous six months immediately prior to the action; furthermore, the Missouri court did not, itself, declare it was an inconvenient forum. If the Arizona judge has any doubts whatsoever about this Missouri order, the UCCJEA encourages the judge in Arizona to communicate by telephone or by any other immediate method with the judge in the Missouri case.²⁶ In this way, the two judges can work together toward the best interests of the child who is the subject of the claim and ideally provide for that child’s stability and continuity without lengthy court delays. Because of the previous ruling in Missouri, that order must be granted full faith and credit in Arizona, and Arizona may not assert its jurisdiction adversely over that of Missouri. The Arizona judge would be required to defer to the Missouri ruling. A collaboration between the Arizona and Missouri courts would work together to determine which of the two states should have jurisdiction, and each holds the other to the UCCJEA rules. The Missouri judge has the option to request that the Arizona court hold a hearing, order a party to appear at a proceeding, order a party to produce evidence at a hearing, conduct social histories or studies regarding custody, or forward hearing transcripts and other evidence. Essentially, this process works to protect the best interests of the child from false or flawed claims.

Exceptions to the UCCJEA rules can be granted based on emergencies. These emergencies can include abuse, neglect, or abandonment of the child.²⁷ A court may exercise emergency jurisdiction if the child is present in the state and the child has been abandoned, or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.²⁸ Emergency jurisdiction is normally temporary, but under certain circumstances, such orders can become final.²⁹

A court with jurisdiction under one of the jurisdictional bases must decline to exercise jurisdiction if a party has engaged in unjustifiable misconduct, sometimes called the “unclean hands doctrine.”³⁰ This doctrine ensures that a party who has committed objectionable acts may not gain a jurisdictional advantage, requiring courts to decline to exercise jurisdiction where domestic violence perpetrators have abducted the child.³¹ The UCCJEA comments also specify that “domestic violence victims should not be charged with unjustifiable conduct for conduct that occurred in the process of fleeing domestic violence, even if their conduct is technically illegal.”³² Additionally, another state court may only modify a previous order if it finds evidence for taking temporary emergency jurisdiction.³³ Finally, each judge may have a different view of the law and its application, particularly in a best interests of the child context.³⁴

A state’s express gender ideology, as set forth in its statutory framework, affects parents and their children in many ways, but most immediately in the context of custody jurisdiction. One of the difficulties posed with respect to transgender care is that some states are passing new laws which suggest that the failure to provide it amounts to child abuse, while other states are suggesting that the provision of that care itself constitutes child abuse. Examining some sample laws can be instructive.

California law SB 107 opens the door to allow children from another jurisdiction to receive gender surgery and hormone therapy without parental consent by requiring California courts to ignore certain parts of the UCCJEA.³⁵ This code also denies parents the right to access their child’s medical information relating to their transgender-affirming health care by allowing California courts to take emergency jurisdiction over a child seeking transgender-affirming care, allowing the adults who aid them to avoid prosecutions and injunctions from the child’s home state.³⁶ Children may be further granted asylum in California under this code, avoiding prosecutions and injunctions from their home state.³⁷ California’s SB 107 amends the state’s UCCJEA to permit California state courts to trump the jurisdiction of other states’ courts where chemical or surgical sex-change procedures are prohibited.³⁸

Minnesota passed Trans Refuge Bill HF 146 to similarly protect transgender care not only for children in that state but also to afford protection to families who travel to Minnesota to access gender transition care.³⁹ The objective is to protect transgender children aspiring to obtain gender-transition care.⁴⁰

Some states will inevitably join California and Minnesota in these goals. These states purport to allow family courts in their states to override the rulings previously made in other state family courts.

Conversely, Tennessee passed a law prohibiting a health care provider from performing on a minor or administering any treatment or procedure designed to help a minor change or identify as changing his or her sex.⁴¹ A court in that state immediately blocked the law for review,⁴² but the Sixth Circuit Court of Appeals overruled that decision, allowing the law to go into effect.⁴³ Laws like this are designed to protect all kids from harmful treatment until they are adults, when they may then offer their own fully informed consent to such treatment.⁴⁴ Nearly twenty states—including Alabama,⁴⁵ Arkansas,⁴⁶ Florida,⁴⁷ Iowa,⁴⁸ Mississippi,⁴⁹ South Dakota,⁵⁰ and Utah⁵¹ – have issued similar rules prohibiting transgender treatments for children, including medication and surgical services.⁵² Meanwhile, Arizona outlawed surgical treatments,⁵³ and dozens of other states have similar legislation under consideration.⁵⁴ Some of these state laws have been judicially blocked,⁵⁵ a move that highlights the intra-state conflict. The UCCJEA will continue to apply in these jurisdictions, nonetheless.

Consider another example: What happens if two states, say California and Tennessee, are in conflict over the proper jurisdiction for a child custody proceeding when a child (or his parent) wants to pursue gender transition treatment? If the case is brought in a California court, that state’s amended UCCJEA still requires the court first consider whether an initial custody ruling exists in another state,⁵⁶ even if an exception for gender transition care may exist.⁵⁷ For purposes of this example, the child and his family are from Tennessee, and a previous custody ruling is already in place in Tennessee. In that initial ruling, the Tennessee judge found that Tennessee was determined to be not only the forum of initial child custody jurisdiction but also the home state of the child where he had resided for the previous six months immediately prior to the action. Furthermore, the Tennessee court did not declare it was an inconvenient forum. Thus, the California judge must apply the UCCJEA rules, even in the face of California’s jurisdictional transgender exceptions.⁵⁸

The parent who has taken the child from Tennessee to California will argue that the parent in Tennessee has no right to access their child’s medical information relating to their transgender-affirming health care in California because the California court can take emergency jurisdiction over a child seeking transgender affirming care, also allowing the adults who aid them to avoid prosecutions and injunctions from the child’s home state.⁵⁹ They will also argue that the child is granted asylum in California under this code to receive transgender treatment.⁶⁰ The parent in Tennessee will simultaneously file an emergency custody claim back home in Tennessee to enforce the original custody order and allege that taking the child to California for gender transition treatment is clear abuse under Tennessee law, that California’s UCCJEA still requires the California court to recognize the Tennessee original ruling—and furthermore—that recognize that Tennessee prohibits a health care provider from performing on a minor or administering to a minor any treatment or procedure that is purported to help a minor change or identify as changing his or her sex.⁶¹

If either judge has any doubts whatsoever about the original Tennessee order and the emergency status of either claim, the UCCJEA encourages the judges in each state to communicate by telephone or by any other immediate method with each other.⁶² In this way, the two judges can work together toward the best interests of the child who is the subject of the claim, ideally providing for that child’s stability and continuity without lengthy court delays. As there is a previous ruling in Tennessee, that order must be granted full faith and credit in California. California may not assert its jurisdiction adversely over that of Tennessee unless there is evidence of an emergency, such as abuse—here being the denial of transgender treatment.⁶³ Absent that proof, the California judge must defer to the Tennessee court’s ruling. If abuse can be proved to the California judge, that court may take temporary emergency jurisdiction. At that point, the Tennessee parent should file a PKPA claim in federal court to enforce the Tennessee ruling over the new California order.⁶⁴

Remember, a court may exercise emergency jurisdiction if the child is present in the state and an emergency necessitates the child’s protection because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.⁶⁵ The California court and the Tennessee court should work together to determine which of the two states would have jurisdiction and hold each other to the UCCJEA while also applying that state’s rules on gender treatment for minors. The options available to the Tennessee judge include requesting that the California court hold a hearing, order a party to appear at a proceeding, order a party to produce evidence at a hearing, conduct social histories or studies regarding custody or transgender treatments, or forward hearing transcripts and other evidence, and vice versa. Again, this process is designed to protect the child's best interests from false or flawed claims. The California judge might choose to find that even if Tennessee had original jurisdiction, an emergency exists that requires protecting the child from harm—the denial of gender transition treatments—by taking control of the case.

Recall also that a court having jurisdiction under one of the jurisdictional bases (even under claims of emergency circumstances) may decline to exercise jurisdiction if a party has engaged in unjustifiable misconduct under the “unclean hands doctrine.”⁶⁶ This doctrine ensures that a party who has committed objectionable acts may not gain a jurisdictional advantage, permitting courts to decline to exercise jurisdiction where perpetrators have abducted the child.⁶⁷

An opposite scenario can be imagined where a parent from California takes the child to Tennessee to avoid the gender transition treatment requested by the California-based parent. A similar analysis of the rules would ensue, with the judges in both states hearing evidence and applying each state’s rules based on emergency jurisdiction under the UCCJEA, and under their state’s rules on gender transitions for minors. The Tennessee judge could find that even if California had original jurisdiction, an emergency exists in protecting the child from harm in gender transition treatments. And finally, remember that judicial discretion controls.⁶⁸

Averting requirements set out by other states’ UCCJEA and gender transition laws for minors, courts will have to address whether states can assert jurisdiction under one of the UCCJEA exceptions (abuse, neglect, abandonment) to prevent the child from being restrained by parents from gender transition treatment, or to take custody from parents via those emergencies for the new forum state to apply the express transgender change care.⁶⁹ Jurisdictional aspects will determine whether a parent can protect his or her child.

The current patchwork of laws regarding such care will not only undermine parental decision-making but will also likely result in the destruction of families, further breakdown of parent/child relationships, and eventually reduce the effectiveness of family law. Furthermore, federal courts may be called upon to enter this fray under the function and application of the Parental Kidnapping Protection Act, which establishes national standards to determine jurisdiction in interstate custody disputes, imposing a duty on one state to enforce the rules of another state, and to afford full faith and credit to the UCCJEA of every other state, which may require family court judges to communicate with each other in real-time under these circumstances.⁷⁰ Gender ideology, therefore, is at work creating conflicts even in jurisdictional aspects of family law, as well as in fundamental constitutional protections afforded to parents.

A plethora of views are available on this subject, all of which could be presented in a custody jurisdictional proceeding. A children’s rights perspective might require that the child’s decision prevail regardless of any judicial application of parental rights or even the best interests standard.⁷¹ On the other hand, a parental rights perspective might hold that until the child reaches the age of majority, the courts must trust fit parents to act in their child's best interests as they deem fit. A faith perspective might also shed some valuable light on gender identity. For example, Christianity embraces the concept that body and soul together form an integrated unity, that each human being is an embodied soul rather than one individual in a misfitted body. Holding that the biologically engendered human body is teleological and has a purpose for being so, people of faith tend to view one’s body as having a structure and purpose ordered for male or female sexuality.⁷² Because transgender people may feel trapped in ‘the wrong body’ and sense a mismatch between physical sex and psychological gender, experiencing gender dysphoria, transgender advocates might argue that gender identity is not rooted in biology but that gender identity is independent of the body. Others may argue that gender is merely a social construct, a product of social forces, where gender is “[o]ne’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves.”⁷³

Sexual orientation and gender identity laws may tend to open opportunities for some children and parents, or they may place pressure on other children and parents who may be struggling with gender dysphoria to begin the transitioning process through hormones and surgery. Because gender alterations can be traumatic and irreversible,⁷⁴ both sets of children and their families need places where they can be safe to find guidance, medical expertise, hope and restoration, and the freedom to think through the best process for a child whose body and emotions are constantly changing during adolescence even in the midst of any dysphoria.⁷⁵ Research is beginning to demonstrate that among those who pursue gender change, “roughly 80–90% of children who experience some sort of gender incongruence lose their feelings before adulthood.”⁷⁶ Authentic discussion is needed before treatment or litigation. Courts should be available as more of a last resort to help heal and restore those conflicts, rather than to tear apart families over them. As one judge put it, legislatures should “give a voice and a pathway to youth [who are struggling with gender identity] . . . without attributing fault to the parents and involving them in protracted litigation which can and does destroy the family unit.”⁷⁷

When parents file for custody to either obtain or restrain their child’s gender transition care or seek refuge under another state code, courts are required to apply basic UCCJEA rules. Conflicting rules on custody jurisdiction and gender ideology perspectives can cost parents the custody of their children. Instead of asking the more obvious question—“Can’t we just wait a year or two and not do anything drastic until he’s eighteen and doesn’t need parental permission?”—judges may very well proceed to remove a child from his or her home. This can happen when judges, attorneys, and their clients do not know or understand the application of the rules surrounding their custody jurisdictional claim or when they apply them based on presented evidence.

Steps to protecting a child’s best interests under parents’ rights to custody and direction in raising a child are important to know moving forward into a new school year. If a parent has a child questioning gender, gender transition, or experiencing gender dysphoria, that parent needs to calmly and caringly move forward with gathering information that he or she deems will protect the child. If a custody battle ensues, these steps may prove helpful.

1. Obtain original (initial) jurisdiction in the desired home state. Be certain to understand the gender ideology used in this state. If it is not favorable to the parent’s direction for the child, the parent should consider moving to another state that better aligns with his or her parental notions. Establish the child’s home state there, then begin the initial custody claim.

2. Look for emergency jurisdiction if needed. If a child is in danger of being forced into irreversible treatment, a parent should gather information and evidence of that treatment being abusive in some way, under state definitions of abuse or neglect or abandonment and under social science conventions.⁷⁸

3. Hire an excellent attorney who understands these rules and the state where they are to be argued. Do this without delay. Work with that attorney as the advocate and ally for you and your child. He or she will also help you to determine any liability that various actors in your child’s life (doctors, counselors, teachers, school administrators, hospitals, medical groups, individually and corporately, etc.) will have for any harm that your child endures. ⁷⁹

When parents disagree on how to carry out a child’s upbringing, or when children appear to disagree with how their parents want to direct their upbringing, parents need to be ready to protect their children’s best interests, even from other adults and states, which are (inadvertently) providing new avenues to obviate established jurisdictional rules. Knowing and understanding the avenues and strategies presented in this Essay that deal with those legal conflicts are absolutely critical in the context of the most contentious metamodern trend in child rearing: gender dysphoria treatments.

^*Professor and John Brown McCarty Professor of Family Law, Regent University School of Law.

¹Christy Bieber, How Can a Mother Lose Custody?,Forbes Advisor (Jun. 14, 2023, 5:47 AM), https://www.forbes.com/advisor/legal/child-custody/how-can-mother-lose-custody/.

²Several jurists have described parental rights not only as constitutionally protected—but as unalienable. See Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting) (arguing that parental rights should be upheld based on their unalienable nature, rather than substantive due process); Protecting Parental Rights at the State Level, Parental Rights, https://parentalrights.org/states/ (last visited Aug. 15, 2023); see also Louis Hensler, The Legal Significance of the Natural Affection of Charlie Gard’s Parents, 17 Conn. Pub. Int. L. J. 59 (2017) (exploring the legal significance of the natural affection between parents and children). Furthermore, many states have statutes protecting parental rights.

³Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (holding parents have a fundamental right to direct their children’s education and upbringing); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–36 (1925) (same).

⁴See generally Richard A. Warshack, Social Science and Children’s Best Interests in Relocation Cases: Burgess Revisited, 34 Fam. L. Q. 83 (2000) (discussing various scenarios that reveal the importance of a child’s relationship with both parents); cf. Protecting Parental Rights at the State Level, supra note 2.

⁵We will call these “third party custody claims” because children cannot bring their own custody claims. Rather, children are legally incapacitated, and have no rights to exercise, apart from their parents exercising rights to protect their best interests. Therefore, there will always be an adult somewhere bringing a claim for a child. See Martin Guggenheim, What’s Wrong With Children’s Rights 173 (2005). “While the underlying ideal and rhetoric are laudable, the unfortunate reality is that the enormous amounts of time, money, and emotional energy expended in contested custody proceedings often hurt both parents and children.” Id.

⁶ Unif. Child Custody Jurisdiction Act (Unif. L. Comm’n 1999). For more on how uniform state laws are developed, see Uniform Laws, Legal Info. Inst., https://www.law.cornell.edu/uniform (last visited Aug. 15, 2023) (“Upon approval by the National Conference a Uniform Law is not law anywhere in the United States. It is simply a legislative proposal addressed to fifty state legislatures.”).

⁷Some have called the actions of a parent taking a child to a new jurisdiction to litigate the custody of that child the “grab-and-run scenario” which creates systemic problems of potentially ongoing custody litigation in two distinct jurisdictions simultaneously. See Lynn D. Wardle et al., Family Law From Multiple Perspectives 851 (2nd ed. 2019).

⁸Id. at 851–52.

⁹28 U.S.C. §§ 1738A et seq. (1980).

¹⁰34 U.S.C. §§ 12291 et seq. (1994).

¹¹28 U.S.C. § 1738A(c)(2)(A).

¹²Id. The Act's name represented its sponsors' concern that forum shopping was being used in cases of parental kidnapping in which one parent interferes with another parent's custodial rights. Id.

¹³Id. at § 1738A(f).

¹⁴Id. at § 1738A(b)(4).

¹⁵34 U.S.C. §§ 12291–12514. VAWA has subsequently been expanded, improved, and updated several times since its initial enactment, most recently with its reauthorization in 2022. Violence Against Women Act Reauthorization Act of 2022, S. 3623, 117th Cong. (2022).

¹⁶Unif. Child-Custody Jurisdiction and Enforcement Act (Unif. L. Comm’n 1999).

¹⁷Uniform Laws, supra note 6 (“During the history of the Conference, roughly half its proposals have not been adopted by a single state.”).

¹⁸Massachusetts remains the only state not to have adopted a UCCJEA, but it has instead codified custody jurisdictional requirements under the UCCJA, which are quite similar to UCCJEA standards. See Mass. Gen. Laws ch. 209B, §§ 1–14 (2023).

¹⁹Unif. Child-Custody Jurisdiction and Enforcement Act § 102(7).

²⁰See id. at § 201(a)(2) (indicating that there must be substantial evidence in the state concerning the child’s care, protection, training, and personal relationships).

²¹Id. This foundation for jurisdiction exists when both the home state and the significant connection jurisdiction have declined to exercise jurisdiction on the grounds that a court of another state is the more appropriate forum. Id.

²²Id. at § 207.

²³Id. It is noteworthy that this preference for home state jurisdiction is consistent with the federal PKPA, a point not prioritized in the prior UCCJA. Compare Unif. Child-Custody Jurisdiction and Enforcement Act § 102(7) (preference given to the child’s home state), and 28 U.S.C. § 1738A (same), with Unif. Child-Custody Jurisdiction Act § 3 (providing four equally weighted methods of determining preference in jurisdiction, including the child’s home state).

²⁴U.S. Const. art. IV, § 1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.”).

²⁵Unif. Child-Custody Jurisdiction and Enforcement Act § 201.

²⁶See Nat’l Ctr. for State Ct.’s Et Al., Uniform Child Custody Jurisdiction and Enforcement Act: Guide for Court Personnel and Judges 15, 18–20, 63 (2016), available at https://www.ncjfcj.org/wp-content/uploads/2018/07/UCCJEA_Guide_Court_Personnel_Judges_Final_508.pdf.

²⁷Unif. Child-Custody Jurisdiction and Enforcement Act § 204.

²⁸Id. § 204(a).

²⁹Id. § 204(b).

³⁰Id. § 208 cmt.

³¹Id.

³²Id.

³³Id. §§ 202, 204.

³⁴See Lynne Marie Kohm, Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence, 10J. L. Fam. Stud. 337, 366–70 (2008) (asserting generally that judicial discretion is one of the most profoundly subjective aspects of any custody proceeding).

³⁵Gender-Affirming Health Care, S.B. 107, Reg. Sess. (Cal. 2022).

³⁶See id.

³⁷Id.

³⁸Section 8 of S.B. 107 amended Section 3453.5 of the California UCCJEA Code to read: "(a) A law of another state that authorizes a state agency to remove a child from their parent or guardian based on the parent or guardian allowing their child to receive gender-affirming health care or gender-affirming mental health care is against the public policy of this state and shall not be enforced or applied in a case pending in a court in this state." S.B. 107, Reg. Sess. (Cal. 2022).

³⁹See H.F. 146, 93rd Sess. (Minn. 2023).

⁴⁰See id.

⁴¹S.B. 0001, 113th Gen. Assemb. (Tenn. 2023), available at https://legiscan.com/TN/text/SB0001/id/2755783/Tennessee-2023-SB0001-Chaptered.pdf.

⁴²L.W. v. Skrmetti, No. 3:23-CV-00376, 2023 WL 4232308 (M.D. Tenn. June 28, 2023) (enjoining Tennessee’s law that bans gender affirming medical treatment).

⁴³L.W. v. Skrmetti, 73 F.4th 408, 418, 421–22 (6th Cir. 2023) (staying the preliminary injunction until September 30, 2023, and holding that the plaintiffs’ equal protection and due process arguments for overcoming state legislative authority were unlikely to succeed).

⁴⁴See Caroline Coffman & Jeffrey E. Barnett, Informed Consent with Children and Adolescents, Soc. Advancement Psychotherapy, https://societyforpsychotherapy.org/informed-consent-with-children-and-adolescents/ (last visited Aug. 15, 2023).

⁴⁵H.B. 322, Reg. Sess. (Ala. 2022).

⁴⁶The Save Adolescences from Experimentation Act, H.B. 1570, 93rd Gen. Assemb. (Ark. 2021). A federal district court recently struck down the Arkansas law as unconstitutional. See Andrew DeMillo, Judge Rules Arkansas ban on Gender-Affirming Care for Transgender Minors Violates US Constitution, Associated Press (June 20, 2023), https://apnews.com/us-news/arkansas-gender-general-news-2a0d032f4e4f3195c180d879239e6521.

⁴⁷The Florida Department of Health issued guidelines advising against gender affirming care for minors as not in the best interests of children. See Treatment of Gender Dysphoria for Children and Adolescents, Fla Dept. Health (Apr. 20, 2022), https://www.floridahealth.gov/_documents/newsroom/press-releases/2022/04/20220420-gender-dysphoria-guidance.pdf.

⁴⁸S.B. 538, 90th Gen. Sess. (Iowa 2023).

⁴⁹H.B. 1125, Reg. Sess. (Miss. 2023), available at http://billstatus.ls.state.ms.us/documents/2023/pdf/HB/1100-1199/HB1125SG.pdf.

⁵⁰Act to Prohibit Certain Medical and Surgical Interventions on Minor Patients, H.B. 1080, 98th Leg. Sess. (S.D. 2023).

⁵¹Transgender Medical Treatments and Procedures Amendments, S.B. 16, Gen. Sess. (UT 2023); see also Rebekah Reiss and Zoe Sottile, Utah Governor Signs Bill Banning Gender-Affirming Hormone Treatment and Surgery for Minors, CNN (Jan. 29, 2013), https://www.cnn.com/2023/01/29/us/utah-governor-minors-transgender-care-ban/index.html.

⁵²Breaking: 20 States Have Passed Help Not Harm Laws, Family Policy All. (Aug. 16, 2023), https://familypolicyalliance.com/press-releases/breaking-20-states-have-passed-help-not-harm-laws/; see also Ala. Code § 26-26-1 to 9 (2022); Ariz. Rev. Stat. Ann. § 32-3230 (2022); Ark. Code Ann. § 20-9-1501 to 1504 (2021); Idaho Code Ann. § 18-1506C (West, Westlaw current with effective legislation through ch. 1 to 314 of the First Reg. Sess. of the Sixty-Seventh Idaho Legis.); 405 Ill. Comp. Stat. Ann. 48/1 to 30 (West, Westlaw through P.A. 103-217 of the 2023 Reg. Sess.); Ind. Code Ann. § 25-1-22-1 to 18 (West, Westlaw through all legislation of the 2023 First Reg. Sess. of the 123rd Gen. Assemb. effective through Jul. 1, 2023); Iowa Code Ann. § 147.164 (West, Westlaw through legislation effective Jul. 14, 2023 from the 2023 Reg. Sess., and the 2023 First Extraordinary Sess.); Ky. Rev. Stat. Ann. § 158.191 (West, Westlaw through the 2023 Reg. Sess. and the Nov. 8, 2022 election); La. Stat. Ann. § T. 40, ch. 5-A, Pt. IX (Westlaw through the 2023 First Extraordinary, Reg., and Veto Sess.); MO. ANN. STAT. § 191.1720 (West, Westlaw through the end of the 2023 First Reg. Sess. of the 102nd Gen. Assemb.); Neb. Rev. Stat. Ann. § 71-7304 (West, Westlaw through the end of the 1st Reg. Sess. of the 108th Legis.); N.C. GEN. STAT. ANN. § 90-21.150 to 154 (West, Westlaw through S.L. 2023-106 of the 2023 Reg. Sess. of the Gen. Assemb.); N.D. Cent. Code Ann. § 12.1-36.1-01 to 04 (West, Westlaw through legislation from the 2023 Reg. Sess.); Okla. Stat. Ann. § 2607.1 (West, Westlaw through legislation of the First Reg. Sess. of the 59th Legis. and the First Extraordinary Sess. of the 59th Legis.); S.D. Codified Laws § 34-24-34 (Westlaw through the 2023 Reg. Sess. and Supreme Court Rule 23-17); Tenn. Code Ann. § 68-33-101 to 109 (West, Westlaw through laws from the 2023 Reg. Sess. of the 113th Tenn. Gen. Assemb.); Tex. Health and Safety Code Ann. § 161.701 to 706 (West, Westlaw through legislation effective Jul. 1, 2023, of the 2023 Reg. Sess. of the 88th Legis.); S.B. 16, 65th Legis., 2023 Gen. Sess. (Utah 2023); S.B. 254, 2023 Leg., 125th Reg. Sess. (Fla. 2023); H.B. 1125, 2023 Leg., 2023 Reg. Sess. (Miss. 2023).

⁵³Iowa Code Ann. § 147.164; see also Map: Attacks on Gender Affirming Care by State, Hum. Rts. Campaign (Aug. 22, 2023), https://www.hrc.org/resources/attacks-on-gender-affirming-care-by-state-map.

⁵⁴See Roundup of Anti-LGBTQ+ Legislation Advancing in States Across the Country, Hum. Rts. Campaign (May 23, 2023), https://www.hrc.org/press-releases/roundup-of-anti-lgbtq-legislation-advancing-in-states-across-the-country.

⁵⁵See, e.g., Brandt v. Rutledge, 47 F.4th 661, 661 (8th Cir. 2022) (enjoining an Arkansas law that prohibits medical professionals from providing gender transition procedures to minors); Doe v. Ladapo, No. 4:23CV114-RH-MAF, 2023 WL 3833848, at *17 (N.D. Fla. June, 6, 2023) (granting a preliminary injunction against a Florida statute that prohibits medical professionals from providing gender transition procedures to minors); K. C. v. Individual Members of Med. Licensing Bd., No. 123CV00595JPHKMB, 2023 WL 4054086, at *14 (S.D. Ind. June 16, 2023) (granting a preliminary injunction against an Indiana law that prohibits medical professionals from providing gender transition procedures to minors).

⁵⁶Cal. Fam. Code §§ 3421(a)(2)–(4).

⁵⁷See id. at § 3421(d). “The presence of a child in this state for the purpose of obtaining gender-affirming health care or gender-affirming mental health care, as defined by Section 16010.2 of the Welfare and Institutions Code, is sufficient to meet the requirements of paragraph (2) of subdivision (a).” Id.

⁵⁸Id. at § 3421.

⁵⁹See id.

⁶⁰See id.

⁶¹ S.B. 0001, 113th Gen. Assemb. (Tenn. 2023).

⁶²Nat’l Ctr. for State Ct.’s, supra note 27, at 8, 15, 18–20, 63.

⁶³A caveat exists here in that California schools have taken custody of children under the doctrine of in loco parentis, where the school makes a claim that it serves as the child’s parents under certain circumstances. For a fuller explanation of this concern, see S. Ernie Walton, In Loco Parentis, the First Amendment, and Parental Rights: Can they Coexist in Public Schools? __ Tex. Tech. L. Rev. __ (forthcoming 2023), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4180593.

⁶⁴28 U.S.C. § 1738A; see also supra notes 9–13.

⁶⁵Unif. Child-Custody Jurisdiction and Enforcement Act § 204.

⁶⁶Id. at § 208.

⁶⁷See id.

⁶⁸Kohm, supra note 35.

⁶⁹Transgender issues can arise for both parents and children in custody cases, but some scholars argue that transgender and other gender identity issues should not be a factor in any child custody determination. See e.g., Kari J. Carter, Note: The Best Interest Test and Child Custody: Why Transgender Should Not Be a Factor in Custody Determinations, 16 Health Matrix 209 (2006).

⁷⁰Nat’l Ctr. for State Ct.’s, supra note 27, at 8, 15, 18–20, 63.

⁷¹While the United States has not adopted the Convention on the Rights of the Child, and no state in the United States uses a standard of the rights of the child, and all states have code and case law on an application of the best interests of the child standard rather than a children’s rights standard, some judges and attorneys may nonetheless make arguments based on a children’s rights framework. See Lynne Marie Kohm, Suffer the Children: How the United Nations Convention on the Rights of the Child Has Not Supported Children, 22 N.Y. Int’l. L. Rev. 57 (2009) (clarifying the best interests standard is American jurisprudence, rather than international law jurisprudence of children’s rights); but Cf. James Gerard Dwyer, The Relationship Rights of Children (2006) (arguing for children’s rights over a best interest of the child framework), available at https://ssrn.com/abstract=2172484.

⁷²See Genesis 1:27 (describing how mankind was created in God’s image as male and female).

⁷³Sexual Orientation and Gender Identity Definitions, Hum. Rights Campaign (2018), https://www.hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-definitions. This notion has been expressed in now-overturned constitutional jurisprudence in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” 505 U.S. 833, 851 (1992).

⁷⁴One such lawsuit alleging this irreversibility is Lovdahl v. Kaiser Foundation Hospitals. Complaint, Lovdahl v. Kaiser Fnd. Hospitals, No. STK-CV-UMM-2023-0006100 (Cal. Superior Ct. Jun. 14, 2023), (alleging that a twelve-year-old girl was prescribed puberty blockers, underwent a double mastectomy at age thirteen, and is, now age eighteen, suing her doctors on a theory of medical negligence for rushing her through the process causing her irreversible harm) available at https://www.documentcloud.org/documents/23848578-layla-jane-lawsuit.

⁷⁵Abigail Schrier, Irreversible Damage: The Transgender Craze Seducing Our Daughters xxvii (2020) (detailing the effect the transgender movement has had on young women specifically, and noting the remorse they experience once reaching adulthood). “The Western world has seen a sudden surge of adolescents claiming to have gender dysphoria and self-identifying as ‘transgender.’ For the first time in medical history, natal girls are not only present among those so identifying—they constitute the majority.” Id.

⁷⁶Nancy Pearcy, Love Thy Body: Answering Hard Questions About Life and Sexuality 223 (2017) (citing Gender Ideology Harms Children, Am. College of Pediatricians (Aug. 17, 2016), http://www.acpeds.org/the-college-speaks/position-statements/gender-ideology-harms-children); see also Joe Shute, The New Taboo: More People Regret Sex Change and Want to ‘Detransition’, Surgeon Says, National Post (Oct. 22, 2018), https://nationalpost.com/news/world/the-new-taboo-more-people-regret-sex-change-and-want-to-detransition-surgeon-says (noting comments from the once “world-leading genital reconstructive surgeon” who now sees that sex change reversal is on the rise).

⁷⁷In re JNS, No. F17-334X, Slip Op. at *4 (Hamilton Cnty Juvenile Ct., Feb. 16, 2018) (adjudicating a custody conflict between parents and grandparents over a child’s gender transition).

⁷⁸Recommended resources include but are not limited to Schrier, supra note 77, Pearcy, supra note 78, and referenced resources therein.

⁷⁹See Complaint, Lovdahl, No. STK-CV-UMM-2023-0006100. There the petitioner is seeking—from the hospital, its medical group, and the doctors individually—general damages, special damages for medical and related expenses, pain and suffering, past and future, and mental anguish, past and future, interest and costs of the lawsuit, and such “other and further relief as the court deems just and proper” which could include punitive damages. Id. For further information on what type of damage a child may endure by gender treatments, see Help Not Harm, Family Policy All., https://familypolicyalliance.com/help-not-harm/ (last visited Sept. 7, 2023).

Lynne Marie KohmSeptember 27, 2023