Gender-Affirming Care and Custody: Navigating Controversy and Changing Laws

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The fight for LGBTQIA+ rights is ongoing and multifaceted. One area that has recently gained significant attention is gender-affirming care for minors, particularly transgender children. This issue has become a focal point in the ongoing culture wars, with a surge in anti-LGBTQIA+ legislation aiming to restrict access to gender-affirming health care for transgender youth. Several states have passed these measures, while others are considering similar actions.

Currently, 22 U.S. states have implemented restrictions on gender-affirming care for minors. Recently, North Carolina passed legislation that bars surgical gender-transition procedures for individuals under 18, with limited exceptions, and also prohibits medical professionals from providing hormone therapy and puberty-blocking drugs to minors. Similar restrictions have been enacted in Louisiana, Texas, Missouri, Florida, and Nebraska. These policies are often promoted as protective measures but are criticized for targeting gender-diverse youth and impeding the delivery of widely accepted best-practice medical care.

This topic has become a critical political issue as we approach upcoming elections. Red states have made it a hot-button issue, while blue state legislatures are working swiftly to protect the rights and access to care for transgender youth. California, for example, is currently discussing several bills.

One such bill in California, Assembly Bill 665, aims to grant minors aged 12 and above enrolled in Medi-Cal the ability to seek outpatient mental health services without parental consent. This bill could profoundly impact LGBTQIA+ youth who face an increased risk of mental health crises, self-harm, and suicide. A 2022 study by the Trevor Project revealed that 45% of LGBTQIA+ youth had contemplated suicide in the past year, and less than one-third of non-binary and transgender youth felt they lived in a gender-affirming home environment.

However, misinformation circulating on social media has distorted the intent of this bill, leading to fears that mental health professionals in schools would have the authority to remove minors from the custody of parents who do not consent to medical gender-affirming treatment for their child. The Associated Press and other legal experts have debunked these claims, as has the bill’s sponsor, Assemblywoman Wendy Carrillo (D-East Los Angeles). They clarify that the legislation only allows minors to seek professional support for gender identity issues, while parental consent is still required for any medical treatment.

Another bill, AB 957 (the TGI Youth Empowerment Act), has recently garnered significant attention. Introduced by Senator Lori Wilson (D-Suisun City), this bill aims to include gender affirmation as a crucial consideration for a child’s health, safety, and welfare in custody decisions. Initially, AB 957 faced little backlash, but it has recently sparked outrage, protests, and inflammatory language. Opponents of the bill expressed concerns that it infringes upon parental rights, may lead to forced removal of children from their homes, and unfairly favors a gender identity-affirming parent in divorce cases. Some lawmakers have questioned how “affirmation” would be interpreted, particularly concerning medical treatment and its implications for specific religious communities.

In response to these concerns, Senator Wilson clarified that the bill does not force medical procedures on children or accuse parents who do not affirm their child’s gender identity of child abuse. The legislation ensures children are raised in safe, loving, and supportive environments.

This controversy surrounding gender identity and custody extends beyond individual states, challenging long-established nationwide custody rules that have been in place since the 1960s. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) of 1997, adopted by 49 states, ensures that custody decisions are made in the child’s “home state,” preventing conflicting orders or parental abduction across state lines due to disagreement with existing orders.

However, a recent law signed by Florida Governor Ron DeSantis, Florida S.B. 254, can potentially alter the application of the UCCJEA. This law restricts gender-affirming care for transgender minors and includes a provision that could modify the existing child custody jurisdiction law shared by most states. It grants Florida courts temporary emergency jurisdiction in interstate custody disputes if the court determines that the child is “threatened with being subjected to” gender-affirming care, considered severe harm.

The law’s vague language has left experts uncertain about its practical implications. Critics fear it could incentivize a dissatisfied co-parent to seek emergency custody in Florida if their child receives gender-related medical care in their home state. It’s important to note that the home state would still have the final say, and legal challenges are likely if such situations arise.

The pressing issues surrounding gender-affirming care and custody require courts to adapt and prepare for their complex legal and societal implications. As the culture wars persist, finding a balance between parental rights, children’s well-being, and the recognition of gender identity remains a challenge that demands careful consideration and open dialogue.

By Debra Schoenberg

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