Gender identity emerges as a new front in custody battles
The divorced parents had joint custody of their three children and equal parenting time.
But soon after the mother began allowing their male child — identified in legal documents as “L.” — to wear a skirt to school, the father took his exwife to court.
Arguing that the mother, “through various acts, was pushing a female gender identification on L.,” the father asked for sole legal custody to make decisions about the child’s health care and schooling, according to court records.
He also requested that L. live with him full-time.
A family-court judge responded with sweeping injunctions, forbidding the mother to discuss gender-related issues at home; dress L. in female clothing; let the child have any “female oriented” toys; or refer to L. as “her,” “she” or a “girl.”
Though the injunctions were described as “temporary,” they remained in place for more than two years while the case was under review. When they were partially lifted in early 2016, they accompanied a ruling “that all three children’s best interests” would be served by granting the father sole legal custody.
A recent Arizona Appeals Court review of the case highlights the challenges of mediating custody battles between parents who differ on how to handle kids who may be transgender — a matter that LGBT experts say most U.S. family courts are poorly equipped to handle.
Clashes over how to back kids exploring their identities have revived custody fights in at least 10 states.
“What seems to happen is that the supportive or affirming parent is accused of pushing the child toward a transgender identity,” said Katherine Kuvalanka, an associate professor of family science at Miami University who is pioneering research on such custody disputes.
“If a boy is interested in wearing a skirt or playing with dolls, or a girl is saying they want their hair cut short, those things are not going to ‘turn a child trans.’ But if courts lack experience in this area, they tend to fall back on stereotypical notions and are sometimes fearful of this idea that a parent could push their kid. “Lack of education is a major problem.”
L. was about 6 years old in 2013 when wearing a skirt to school triggered the custody dispute. According to court records, the child’s mother indicated that L. had “long demonstrated a preference for stereotypically ‘female’ items” at that point and “would wear female clothing at home.”
That timeline didn’t surprise Kuvalanka: She said researchers have found that children’s concept of gender develops between the ages of 3 and 6. The American Psychiatric Association says “cross-gender behaviors” often start between ages 2 and 4.
Gender exploration is considered a natural part of child development, and not every child who flouts gender norms will later identify as transgender. But most trans adults indicate that they started feeling like they were in the “wrong” body very early.
“What I always find interesting is when a child asserts a gender that we’re expecting based on their sex assigned at birth, no one says, ‘Well, you’re too young to know your gender,’” Kuvalanka said. “But when a child is asserting a gender that people aren’t expecting, that’s when people say the child maybe doesn’t know what they’re talking about, and maybe they’re too young.”
In L.’s case, a psychologist, physician and psychotherapist each diagnosed the child with gender dysphoria in 2014, the year after the skirt incident. Gender dysphoria refers to lasting distress caused by a conflict between the gender a person is assigned based on anatomy and the gender that person feels.
When children with gender dysphoria are rejected by their families or feel they have no place to be their authentic selves, they face an increased risk of depression, anxiety and suicide.
In early 2015, more than a year after the court began policing L.’s gender expression at home, court records show the child “made statements about dying” and “threatened or engaged in self-harm.”
According to the Appeals Court decision, released April 3, the family court judge in L.’s case recognized the possibility that the father’s “view of L.’s situation may lead him to make less-than-ideal choices regarding L.’s care” and granted him legal custody anyway.
The judge tried to minimize potential harm by mandating treatment with a specific counselor and gender expert and prohibiting the parents from discussing gender-identity issues with the child.
The Appeals Court overturned those orders in its decision, calling the limitations a “severe micromanagement of Mother and Father’s parenting.” Under Arizona law, it said, family courts can only restrict parenting time if they identify something that “would endanger seriously the child’s physical, mental, moral or emotional health.”
Gender-identity experts applauded the lifting of the “gag order” on gender discussions with the child. But they told The Republic that they were confused by the rest of the Appeals Court ruling, given L.’s history of suicidal behavior.
“In a lot of these cases, children are stating, ‘I don’t want to live,’ or they’re getting admitted to Phoenix Children’s because they’re slamming their heads against floors,” said Cammy Bellis, founder of Mothers in Transition. The non-profit group connects moms of gender non-conforming children with legal resources.
“Parents feel that it’s their right to be able to make legal and medical decisions about their child,” she said. “But when your child’s making death statements and having suicidal ideations, when do the courts plan to step in?”
Shannon Minter, legal director at the National Center for Lesbian Rights, said he was “puzzled that the court did not give the trial court an opportunity to revisit which parent should have legal decision-making power.”
The center helped represent L.’s mother on appeal. “Our concern and the mother’s concern is entirely with the welfare of the child,” Minter said. “We do worry that … the child is left potentially unprotected here.”
Scholars and advocates say L.’s case reflects a widespread lack of experience with gender issues among family-court professionals in the U.S.
They drew parallels with the family-court environment of the 1970s and 1980s when ex-partners of gay and lesbian parents used stereotypes about homosexuality to win custody.
“It makes sense because we’ve really just started to scratch the surface of trans rights and trans visibility in general,” Bellis said. “Bias and misinformation are rampant.”
Legal experts contend that unfamiliarity with how gender identities develop can lead to grave consequences in custody disputes because most states use a subjective “best interest of the child” standard.
In other words, if a judge views the possibility of becoming an LGBT adult as a negative outcome; feels that an “undesirable” gender identity is a reversible condition; and isn’t aware of the emotional and physical risks associated with pushing a child to conform to gender norms, that judge will find placing the child with a “nonsupportive” parent to be in the child’s best interest.
A 2013 analysis found that “in the absence of appropriate experts and information, courts favor the parent who rejects the child’s non-conforming gender identity.”
Researchers have also identified judges who take it upon themselves to decide whether a child has gender dysphoria, rather than relying on medical experts.
In the New Jersey Law Journal, family-law attorney Eliana Baer described an Ohio case involving a mother whose ex-husband sued her for custody after she allowed their male child to enroll as a girl at a new school.
“Both parents acknowledged that the child wanted to live as a girl and wanted to remain with the mother,” Baer wrote, and the child corroborated the statements during a recorded interview with the judge.
The judge “rejected the child’s statements because he believed the child’s gestures were not feminine, because the child did not mention being attracted to boys, and because the child (enjoyed) a number of stereotypical male activities,” Baer wrote.
He “found that the mother was the actual cause of the child’s desire to live as a girl” and awarded custody to the father.
Bellis said every case her organization has handled involved a mother being blamed for forcing a child to be transgender, often by an ex-partner who was controlling or abusive during the couple’s relationship and could “out-resource” the mother financially.
L.’s mother makes about $10,000 a year, according to her attorney, compared with the father’s annual income of $250,000.
“This idea that a mom can make someone trans is a strategy that seems to be very convincing to familycourt professionals, even though it completely disregards the child’s agency,” Bellis said. “I haven’t met a single parent who said, ‘Yes, I’m going to force my child to do this.’ These moms are like, ‘I can’t even get my kid to clean their room.’”
In cases where family-court judges endorse shared custody, gender non-conforming children can struggle when required to constantly go back and forth between two households with different gender-expression rules.
“We had a case where a (female) child asserted a boy identity, and the mom was being taken to court for supporting the child,” said Kuvalanka, the Miami University researcher. “At one point, they were driving and the child, a 2nd-grader, said, ‘I’m just going to go back to being a girl. It’ll be easier for everyone.’ It’s a lot for an 8or 9-year-old kid to deal with.”
To minimize the risk of depression and self-harm, psychologists urge parents to provide a safe space for children to develop their gender identities, even if they disagree with or fear a child’s “unconventional” behavior. They acknowledge this can be particularly difficult when other relatives or the family’s religious community are not supportive and recommend finding a therapist who can work with the family.
As for family-court professionals, gender-identity experts encourage them to educate themselves on child development and to remember that allowing for gender exploration isn’t the same as approving dramatic changes such as gender-reassignment surgery.
“There have been cases where (an ex-partner) started to say a parent was pushing the child to be transgender, and immediately the judge would step in and be like, ‘Wait a second, this sounds like you’re just trying to malign this other parent,’” Kuvalanka said. “So, we’ve certainly heard of good outcomes as well, and that’s great.”