California’s transgender youth ‘safe haven’ status is in jeopardy

California’s push to become a safe haven for transgender youth seems likely to be headed toward a showdown at the U.S. Supreme Court, where a conservative supermajority could shut down its latest effort and rewrite a vast swath of long-settled family law.

Amid a nationwide fight over medical care for transgender children, Golden State lawmakers have sought to reaffirm their commitment to LGBTQ+ rights and make the state a place of refuge for children and parents in more restrictive states.

The most recent effort came in 2022, when Gov. Gavin Newsom signed Senate Bill 107, which requires that California courts obtain jurisdiction in a child custody case in the event that a transgender child seeking gender-affirming care in another state is being prevented from seeking appropriate care due to another state’s laws. Cal. S.B. 107, 2022 Leg., Reg. Sess. (Cal. 2022). Cal. Fam. Code §3453.5.

The argument for California’s handling of the issue is that transgender youth are at risk from not receiving care. Many studies indicate that transgender children experience higher levels of anxiety, depression, and suicidal ideation in comparison to their cisgender peers. “Suicidal Ideation Disparities Among Transgender and Gender Diverse Compared to Cisgender Community Health Patients,” J Gen Intern Med. 2023 May; 38(6): 1357–1365. Published online 2023 Jan 17. See also, 2022 National Survey on LGBTQ Mental Health, Additionally, https://www.thetrevorproject.org/survey-2022/.

But one aspect of the law in particular seems likely to result in a legal challenge that could only be resolved by the Supreme Court.

The legislation authorizes California courts to take “temporary jurisdiction because a child has been unable to obtain gender affirming care.” Cal. S.B. 107, 2022 Leg., Reg. Sess. (Cal. 2022) §5. Cal. Fam. Code §3424. In effect, if a transgender child lives in a state where their access to gender-affirming care is hindered, their parent may take them to California, where temporary emergency jurisdiction can be transferred to California in order for the child to receive the benefits of California’s gender-affirming care allowances for minors.

Here’s the problem: Florida wants the same power, but for opposing reasons.

Earlier this year, Gov. Ron DeSantis signed Senate Bill 254, a statute that restricts gender-affirming care for minors and adults. That bill includes a provision that grants family law courts “temporary emergency jurisdiction” to remove a minor present in the state of Florida from the custody of a parent in the event that the minor “has been subjected to or is threatened with being subjected to” gender-affirming treatment. Fla. S.B. 254, 2023 Leg., Reg. Sess. (Fla. 2023) §1. Fla. Statute §61.517.

To summarize: California wants to claim temporary jurisdiction when a transgender youth is being denied care, while Florida wants to claim temporary jurisdiction when a transgender youth is receiving treatment. Unstoppable force, meet immovable object.

Under Article III §2 of the U.S. Constitution, the only way to resolve this paradox is for the two states to go straight to the Supreme Court, under something known as “original jurisdiction,” without stopping at federal district or appeals courts along the way.

This has happened in the past, but rarely.

Original jurisdiction has mostly been raised in matters related to water rights between states and reservations, such as Arizona v. California, where the State of Arizona invoked the original jurisdiction of the United States Supreme Court to bring a claim against California to determine the proper allocation of water from the Colorado River to these various states and tribes. 373 U.S. 546 (1963). In another case, California v. Texas, California asked the court to decide whether a decedent was domiciled in California or Texas at the time of his death in order to determine which state was entitled to levy death taxes on the estate. 457 U.S. 164, 164 (1982.) The court granted the motion because California’s bill of complaint stated a “controversy” between the states within the exclusive jurisdiction of the court under 28 U.S.C.S. § 1251(a). Id at 165.

In the past, conflicting laws on issues involving divorce and child custody led to disputes between states. To avoid this problem, the states jointly agreed to pass model legislation that set baseline rules for deciding which one has jurisdiction.

The result was the Uniform Child Custody Jurisdiction and Enforcement Act, which has been signed into law by every state (except Massachusetts) and largely resolved this issue.

Under that law, if the court determined that child custody proceedings had already begun in another UCCJEA jurisdiction, it was required to halt its proceedings and communicate with the other court and defer to the other jurisdiction’s determination as to which court is the more appropriate forum. Cal. Fam. Code §3426.

But both California and Florida have now undermined that long-settled agreement.

The divide on this issue between red and blue states, and their recently passed statutes, has created a serious conflict of laws that will likely only be resolved by the Supreme Court. Resolution of this conflict and the protection of access to gender-affirming care for children must be considered with the utmost diligence in order to preserve the safety and welfare of children.

Sadly, the people who need the care the most, the children, will likely be mired in delay of the courts, their mental health will be in jeopardy due to this quagmire, and it is unclear how the conservative majority will decide this dispute.

Special Thanks in drafting this article to Madison Thomsen, a law clerk at Provinziano & Associates.