The transgender child custody discussion

In 1985, photographer Steve McCurry took a photo of an Afghani refugee girl. She is looking into the camera over her right shoulder. Her brown hair is visible under the red headscarf she is wearing. However, it was not, at first, her story that captivated the world. It was her vibrant green eyes on National Geographic’s June 1985 cover that captivated the world’s attention. Her name is Sharbat Gula. The photo and accompanying story brought a spotlight on the refugee crisis caused by the Russian invasion of Afghanistan. Fast forward to January 2017, and National Geographic’s cover has another girl on its cover. This time, the girl has large brown doe eyes. She is sitting in her parent’s living room on a couch, wearing pink patterned yoga pants and a t-shirt looking directly into the camera. She has blond hair dyed partially pink, falling past her shoulders. Her mouth is turned downward into a slight frown. Avery Jackson, from all outward appearances, is a 9-year-old girl. Except Avery isn’t. Avery, from a physiological perspective, is a boy. Avery’s quote appears below her picture “The best thing about being a girl is, now I don’t have to pretend to be a boy.” By featuring Avery on its cover, National Geographic jumped headfirst into what it called the “gender revolution.”

Hypothetical

Brandon’s parents never married, but they have remained amicable throughout Brandon’s life. A parentage judgment with a visitation schedule was entered when he was five years old. Parent A and Parent B alternate weekly visitation with Brandon.

Around age 9, Brandon asked to start wearing dresses like his step-sister, Lisa, who was 11 years old. When he had birthday parties or received gifts, he only wanted princess-themed parties and toys marketed toward young girls. At the age of 11, Brandon began to insist that she was a girl and not a boy and wanted to be called Stella. Stella is now 15 and insists she is a girl.

Both parents respect Stella’s decision and allow her to wear whatever clothes, shoes, makeup or nail polish she desires. Both also allow Stella to choose her hair color, which she changes week to week. Both parents are fully supportive of Stella’s decisions and have encouraged them until recently.

When it has come to medical decisions, both parents agreed with counseling for Stella to help deal with the outside pressures of being a transgender youth. Both also agreed to the use of puberty blockers for Stella. However, Stella now wants to start hormone therapy. Parent A agrees with hormone therapy. Parent B opposes hormone therapy because the long-term effects of the treatment are not well known or understood, and they pose too significant a health risk given her past health issues. Stella had heart and lung defects when she was born, but they were surgically corrected. However, Stella has always had a weakened immune system which the doctors have linked to these birth defects.

Parent A brings a Request for Order for sole decision-making powers over the issue of medical care for Stella. Physicians, school staff, and family members submitted declarations that Stella has consistently, and persistently identified as a girl during court hearings. No one disputes that fact, and Parent B fully supports and accepts her for who she is. However, Parent B’s objections are for her medical safety. How should the court rule?

Understanding Transgender

For many people, much of the confusion regarding transgender rises from the lack of understanding of the terms used when discussing the transgender community. Before we can talk about custody issues regarding transgender children, we must understand the important and complicated concepts involving transgender people, especially children.

Sex, Gender, and Gender Identity

Though sex and gender are typically referred to in the same context, they are not always the same. In transgender or gender fluid people, sex and gender may, in fact, not always be the same. “Sex” refers to whether an individual is male or female as determined by a physician or other medical professional at the time of birth. This determination is made solely on the genitalia of the individual. Gender or, more specifically, gender identity refers to how they themselves identify in terms of gender. In other words, in their mind’s eye, how do they see themselves irrespective of their sex. Where there is inconsistency between ones sex assigned at birth and that person’s gender identity is commonly referred to as gender dysphoria. A person with male genitalia may gender identify as female and vice versa. In other instances, sex and gender/gender identity may also be synonymous with each other; i.e. a person with female genitalia may identify as female and, again, vice versa for a male (this is referred to as “cisgender”).

Gender Identity vs. Gender Expression and Gender Non-Conforming

Whereas gender identity refers to how a person sees their inner self, gender expression is about how a person expresses themselves to the world. A person assigned male or female by sex, as just discussed, who gender identifies as the opposite sex may gender express themselves by wearing clothes that are more closely associated with the societal norms for which they gender identify. Gender non-conforming refers to a person who has or is perceived to have gender characteristics or behaviors that do not conform to traditional or societal expectations. For example, a male who gender identifies as a woman may wear dresses and high-heeled shoes. She may also wear makeup, jewelry, and other accessories that further express herself as a woman. (Note: Pronouns will be consistent with a person’s gender identity and/or expression)

Sexual Orientation vs. Gender Identity

Sexual orientation is the emotional, romantic, and sexual attraction(s) to another person of the same or different sex or both. Having a specific sex assigned at birth bears no relation to gender identity or sexual orientation. The terms homosexual, heterosexual and other terms related to sexual orientation are clinical.

LGBTQ +

LGB is typically defined as (L)esbian, (G)ay, and (B)isexual. Lesbian, gay, and bisexual are words with reference to sexual orientation. The “T” refers to (T)ransgender. The “Q” is defined as both “questioning” or “queer.” The ”+” refers to other sexual identities. Queer, like many of these terms, was once used in a derogatory fashion, but has since been reclaimed as an umbrella term for lesbian, gay, bisexual, transgender, intersex, pansexual, asexual, and thus inclusive of the “+” community. (www.glaad.org/reference/terms). Though the word “gay” was often used to refer to males, the phrase “gay community” should be avoided and the term “LGBTQ+ community” should be used to ensure the inclusiveness of diverse persons within the LGBTQ+ community. (www.glaad.org/reference/terms)

Gender Transition

Gender transition is the steps taken by a person to align themselves with their gender identity. This may include both medical intervention and legal transition. Medical intervention can consist of such steps as gender-affirming surgical procedures, hormone therapy, electrolysis and hair removal. The legal transition could include legal name changes and changes of gender designation (“sex”) on legal documents to reflect a person’s gender identity. As discussed below, California has enacted numerous laws to benefit and protect transgender persons.

Understanding the Medical Component

The most discussed medical issue regarding a transgender persons is usually focused on the end of the process rather than the entire process, namely, gender-conforming surgeries. However, there are many steps before surgical intervention is considered. It is imperative that understanding all the steps is necessary to make an appropriate child custody order. It should be noted that children under the age of 18 generally require the permission of their parents or guardian for most medical treatment, including treatment for gender transition.

Puberty Blockers

There is no more awkward time for a child than the period between tween (ten to twelve years old) and teenager (age thirteen plus). For both boys and girls, the puberty years bring changes to the body that are both wanted and unwanted, depending on your perspective. For many, the transition from childhood to adulthood can be a celebration (i.e., Bar/Bat Mitzvah in the Jewish tradition). But, for a transgender child, puberty can bring unwelcome changes. For boys and girls who gender identify as the opposite sex, the bodily changes for both boys (growth spurts, facial hair, enlarged Adam’s apple, deepening of the voice, etc.) and for girls (breasts, hips, menstruation, etc.) only reinforce, and further, the division between their gender identity and their biological gender. These changes are referred to as secondary sex characteristics.

One treatment a transgender child may receive is the use of puberty blockers. Puberty blockers do not prevent puberty. Rather, puberty blockers prevent the release of certain hormones (testosterone and estrogen) during puberty which delay the secondary sex characteristics or changes from starting. Puberty blockers can be either monthly or tri-monthly injections or through a longer-lasting implant placed under the skin. Once the puberty blockers are ended, puberty will resume as normal though delayed. (Gender diversity in childhood and adolescence. Mayo Clinic; 2021; https://www.mayoclinic.org/diseases-conditions/gender-dysphoria/in-depth/pubertal-blockers/art-20459075))

Before the start of puberty blockers, certain criteria must be established. There must be a long-lasting and intense pattern of gender nonconformity or gender dysphoria. The gender dysphoria must have worsened with the start of puberty. The child must have entered the early stages of puberty. And the parents must provide consent. (Id.) The potential side effects, for the most part (injection site swelling, weight gain, headaches), also end with the termination of the puberty blockers.

Gender Affirming Hormone Therapy

Hormone therapy uses hormones to decrease and increase the different types of hormones necessary to cause and block secondary sexual characteristics. Usually begun around the age of 16, hormone therapy involves injections of testosterone (for transgender men), testosterone-blocking pills, and estrogen pills (for transgender women). There are increased medical risks (blood clots, elevated blood pressure) that need to be closely monitored by medical professionals. (Feminizing or masculinizing hormone therapy. Mayo Clinic; 2020)

Gender Affirming Surgery

There is no “one” surgery for transgender persons. Instead, the “surgical” intervention is a multi-stepped process that can take years to fully complete. Early steps in this process would be electrolysis or hair removal. However, the World Professional Association for Transgender Health Standards of Care has determined the minimum age of 18 as eligibility to undergo irreversible procedures.

Mental Health

A child under the best of situations in any contested proceeding (dissolution or parentage) feels the emotional strain caused by their parents’ end of the relationship. As a matter of course, both family law practitioners request, and the courts often order the minor child into therapy for the child’s benefit. However, recent studies have shed light on mental health concerns in transgender youth specifically, with findings indicating a 2- to 3-fold increase in depression and suicidality in this population. (Shumer D. Health disparities facing transgender and gender nonconforming youth are not inevitable. Pediatrics. 2018;141(3):e20174079. doi:10.1542/peds.2017-4079). Other results demonstrated that more than 75% of transgender and gender nonbinary youth experienced symptoms of generalized anxiety disorder. (2021 National Survey on LGBTQ Youth Mental Health. The Trevor Project. Accessed July 15, 2021. https://www.thetrevorproject.org/survey-2021/).

As they reach puberty, the mental health component for transgender youth becomes exponentially compounded. A transgender youth has a body of one gender, with the identity of the other. As puberty takes hold, the physical changes to the biological body become more pronounced, causing an increasing sense of body dysphoria. This, in turn, leads to higher levels of stress, depression and self-loathing, which compound with each physical change.

Additionally, with a transgender child, prejudices in public and family dynamics can cause extreme mental health issues for both parents and child. Friends and family members may reject the child and refuse to allow the child into their home, school, public spaces, or place of worship. As such, the mental health stressors on both the child and the family require the help of mental health professionals.

Legal Issues

Becoming operative in 2018, the California Legislature enacted California Health and Safety Code, Sections 103425, which states, “(a) A person may file a petition with the superior court in any county seeking a judgment recognizing the change of gender to female, male, or nonbinary. (b) If requested, the judgment shall include an order that a new birth certificate be prepared for the person reflecting the change of gender and any change of name accomplished by an order of a court of this state, another state, the District of Columbia, or any territory of the United States.” Section 103426 allows the “[t]he State Registrar shall issue a new birth certificate reflecting a change of gender to female, male, or nonbinary without a court order for any person born in this state who submits directly to the State Registrar an application to change the gender on the birth certificate and an affidavit attesting under penalty of perjury that the request for a change of gender to (female, male, or nonbinary) is to conform the person’s legal gender to the person’s gender identity and is not made for any fraudulent purpose.” As stated above “sex” or “gender” was based on the decision of the medical professional at the time of birth based on physical characteristics of the newborn. Section 130446 states “[i]t is the intent of the Legislature that this article provide a remedy for the correction of birth certificates that contain gender errors made by the birthing hospital or local registrar when completing the original birth certificate.”

California Civil Code, Sections 1276 and 1277, provides a name change process under California law. Section 1277.5(a)(1) provides the mechanism for a name and birth certificate change to “conform the petitioner’s name to the petitioner’s gender identity.” It should also be noted that, unlike most name change requests, Section 1277.5 (b) provides that “the proceeding for a change of name to conform the petitioner’s name to the petitioner’s gender identity is exempt from any requirement for publication.” If the name change is for a minor, Section 1277(a)(2) states, “[i]f a petition is filed to change the name of a minor to conform to gender identity that does not include the signatures of both living parents, the petition and the order to show cause made in accordance with paragraph (1) shall be served on the parent who did not sign the petition.” However, Section 1278.5, provides that “[i]n any proceeding pursuant to this title in which a petition has been filed to change the name of a minor, and both parents, if living, do not join in consent, the court may deny the petition in whole or in part if it finds that any portion of the proposed name change is not in the best interest of the child.”

Transgender children are protected against gender identity-based discrimination and harassment in school settings. (See California Education Code, Section 200, et seq.). Additionally, California Penal Code, Section 422.55, includes gender in its definition of “(a) hate crime.” Section 422.56(c) states “’Gender’ means sex, and includes a person’s gender identity and gender expression. ‘Gender expression’ means a person’s gender-related appearance and behavior regardless of whether it is stereotypically associated with the person’s assigned sex at birth.”

Further, California Family Code Section 3003 states that “joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of the child.” Section 3011(a) provides: “In making a determination of the best interests of the child ... the court shall … consider … [t]he health, safety, and welfare of the child.” Section 3020(a) states: “The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children.”

In Cassady v. Signorelli , 49 Cal. App. 4th 55 (1996), the court granted Father final decision-making powers over disputed medical issues where it found Mother “generally has difficulty coping with the stresses and pressures of life”; has “questionable decision making ability”; and has “a flaky and at times almost delusional quality in her thinking.”

A court has broad discretion in making a child custody determination and may award custody to either parent based on “the best interest of the child.” See Montenegro v. Diaz, 26 Cal. 4th 249 (2001). Appellate reversal of custody and visitation orders is justified only for abuse of discretion. In re Marriage of Burgess, 13 Cal. 4th 25 (1996); In re Marriage of Fajota, 230 Cal.App.4th 1487 (2014). In determining whether the trial court acted reasonably in making the order, the reviewing court must also determine if there is a “reasonable basis on which the court could conclude its decision advanced the best interests of the child.” F.T. v. L.J., 194 Cal. App. 4th 1, 15 (2011). The trial court’s exercise of its discretion “must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” Id.

Conclusion

Parent B’s refusal to allow medical intervention is, unlike in Cassady, not based on “questionable decision making” but instead based on concern for Stella’s long-term medical wellbeing. Parent A argues that the denial of medical intervention which could prevent these changes is the denial of who Stella is and is detrimental to her overall mental health and stability.

How does the court rule? It depends…

(Editor’s Note: This article is partially based on a lecture prepared and presented by Judge Amy Pellman and this author in November 2020. When Susan Goldberg recently retired from National Geographic as its editor-in-chief, she picked Avery Jackson’s cover photo as one of her favorites.)