A new California bill would require judges to consider if a parent affirms their child’s gender identity in custody disputes, a move that legal experts say could disadvantage parents who have religious or other objections on how to treat their children’s gender identity crisis.
The Democrat-led California General Assembly and Senate last week passed Assembly Bill 957, known as the Transgender, Gender-Diverse, and Intersex Youth Empowerment Act. Gov. Gavin Newsom, a Democrat, is expected to sign it into law by its Oct. 14 deadline.
Under the legislation, a judge presiding over a custody case would have to consider “gender affirmation” in evaluating the best interest of the child — the legal standard in determining who should have guardianship of a child.
Constitutional lawyer Nicole Pearson says she plans to fight the legislation on a number of grounds.
“We are very concerned about this bill,” said Ms. Pearson, a lawyer with Facts Law Truth Justice LLP. “It is so ambiguous, there is no way you can enforce this bill … what does ‘affirm’ mean?”
The bill does not define what it means to “affirm” a child’s gender identity, Ms. Pearson said, adding that affirmation could be social (allowing a child to dress a certain way) or medical (authorizing a minor to undergo gender-transition treatment).
What’s more, the legislation could face a 14th Amendment challenge based on fundamental parental and privacy rights and a First Amendment challenge based on a parent’s religious beliefs and the right to speak freely, she said.
Constitutional lawyer Mike Yoder said the law would not survive a legal challenge because the government will not be able to show the law is the least restrictive means — the standard used by courts in upholding or undoing a requirement — in protecting a child’s safety and welfare.
“Taking a child away from their parents is not the least restrictive means of promoting child safety,” Mr. Yoder said. “A first-year law student should be able to knock this out. It is blatantly unconstitutional. It’s another example of government overreach.”
The legislation was sponsored by Assemblywoman Lori D. Wilson, a Suisun City Democrat who has a transgender son. Her proposal aims to combat depression, addiction and suicide in transgender youth, she said.
Transgender kids have a greater risk of mental health challenges, according to a press release from Ms. Wilson’s office. Her office says 54% of the state’s transgender and nonbinary youth have considered suicide.
“After consulting with judges and lawyers throughout the entire year, we feel very confident that there are no constitutional concerns with AB 957,” Ms. Wilson said.
But Matt Sharp, senior counsel at Alliance Defending Freedom, said the bill would put parental and First Amendment rights at stake. He said he’s unaware of any other state imposing such a requirement for judges to consider during custody proceedings.
“Ultimately, the real harm — the real victims of this is going to be the kids,” Mr. Sharp said. “Rather than being protected and shielded … California is essentially saying, ‘We are going to force your parents to do this and if not, they are going to lose custody.’”
Courts generally look at the health, safety and welfare of a child, among other factors, when deciding where the child should live or which parent should make medical decisions for the minor.
Elizabeth Kirk, a law professor at The Catholic University of America, said generally evaluating the best interest of the child is a broad task undertaken by a judge. However, the California bill is different in that it says a judge must consider if a parent affirms a child’s gender.
“What is unique about the California law is that it creates an irrefutable presumption that affirmation is always in the child’s best interests. It follows that a parent who does not affirm a child’s transgender identity is at risk to lose or have severely curtailed the fundamental parental right to custody and care of one’s child,” Ms. Kirk said, adding that it does not give a parent an opportunity to overcome that presumption.
“In contrast, in the custody context, California law permits hearings to corroborate accusations of abuse or drug use. Moreover, because the statute does not define ‘affirmation,’ it seems possible that a ‘more affirming’ parent’s wishes (such as for permanent medical or surgical interventions) may trump those of a parent only willing to affirm a lesser intervention, such as a social transition. This law raises serious constitutional concerns,” she said in an email to The Washington Times.
In a statement to The Times, Ms. Wilson pointed out that her bill adds the parent’s affirmation as one factor to be considered by a judge.
“As you can imagine, there are plenty of things a parent can say that are protected by the First Amendment, but also can be considered in a custody dispute. AB 957 simply adds affirmation of gender identity as one of those factors. With regards to parent’s rights, a custody dispute only occurs when two parents cannot agree on their own how to decide custody of a child. In these types of cases, parents are in a disagreement and have asked the state to settle the dispute. The focus of AB 957 is what is best for the child and there is a breadth of research that supports that affirmation of gender identity in the child’s best interest,” the California lawmaker said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.