Navigating the Murky Waters of Best Interests With a Transgender Child

June 5, 2014Articles New Jersey Law Journal
Dr. Diane Ehrensaft, child psychologist and author of the acclaimed book "One Pill Makes You Boy, One Pill Makes You Girl," describes "a growing cohort of children who, at ages as young as three or four, announce they do not accept…the gender assigned to them at birth." Similarly, a leading expert on medical treatments for childhood/adolescent gender dysphoria at Harvard Medical School, Dr. Norman Spack, describes that his patients, as young as eight years old, "have been digging in their heels for five years or longer about their gender identity and gender role."

According to the "Diagnostic and Statistical Manual of Mental Disorders" (DSM-5), gender dysphoria, previously classified as gender identity disorder of childhood (GIDC), is characterized by a marked difference between the individual's expressed gender and the gender assigned to him or her at birth. Gender dysphoria is manifested in children in a number of ways, including strong desires to be treated as the other gender or to be rid of the characteristics of the child's birth sex. The child may also embrace a strong conviction that he or she has feelings and reactions typical of the other gender.

While there is no reliable data as to the frequency of gender dysphoria due to the subjective diagnostic criteria, as well as children suppressing their cross-gender identification into adulthood, experts estimate that at least one in 500 children exhibit gender dysphoric behaviors. And with gender issues increasingly gaining public attention, the visibility of these children will no doubt increase in the years to come.

Still, with little precedent and a generally binary understanding of gender, the legal profession has yet to catch up with the shifting tides. Judges and lawyers alike oftentimes lack experience with issues related to gender and children. That lack of understanding can have serious consequences for the transgender and gender-nonconforming youth.

Without the proper support, caregiving and structures, transgender youth can develop an increased risk of clinically significant distress, anxiety, increased risk of suicide or impairment in social, occupational or other important areas of functioning in children. A 2009 study conducted by Dr. Caitlyn Ryan found that these risk factors are directly linked to the level of family rejectionof a child's gender nonconformity, rather than to anything inherent in nonconformity itself. In drawing that causal connection, the study controlled for the effects of other factors, including socialpressure a child may experience to conform to gender stereotypes. She and others, including Dr. Ehrensaft and Dr. Spack, advocate for a "supportive approach" or "gender affirmative" model that focuses on providing the gender nonconforming child with support and acceptance as a means of reducing internal psychological stress.

By contrast, some parents may attempt to change their child's gender identity through so-called "conversion" therapy: treatment aimed at trying to change a child's gender identity and lived gender expression to become more harmonious with sex assigned at birth. The World Professional Association for Transgender Health has outwardly condemned this type of treatment, and it has similarly been rejected by every major medical and mental health organization in the United States as ineffective and harmful.

Multiple jurisdictions, including New Jersey, are beginning to restrict the use of conversion therapies on minors. N.J.S.A.§§ 45:1-54, -55; King v. Christie, No. 13-5038, 2013 WL 5970343 (D.N.J. Nov. 8, 2013) (upholding constitutionality of New Jersey's ban for minors); Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) (upholding constitutionality of California's ban for minors).

As families grapple with the proper course of treatment for a gender-nonconforming child, one of the most challenging aspects can relate to the legal roadblocks they may encounter. The federal constitution strongly protects parents' right to make decisions on behalf of their children, which will not be disturbed absent a compelling state interest. See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).

However, when parents are divorced and disagree as to the course of treatment that is in the best interests of the child, the courts must intervene under the principles of parens patrie, even without a compelling state interest. S. v. A., 118 N.J.Super. 69, 70 (Ch. Div. 1972), (citing 4Pomeroy's Equity Jurisprudence, §??1304 (1941 Ed.)).

Nearly all states utilize the "best interest of the child" standard in disputed custody cases—a standard that necessarily involves the judge's subjective beliefs about what is best. While legislation, scholarly articles and case law abound with regulation of transgendered parents' right to custody under the best interest standard, there are no New Jersey cases, and in fact, few cases nationwide that bear upon the best interests of a transgender child.

However, when litigating a contested custody case in New Jersey involving a dispute as to the treatment of transgender children, practitioners should take note of two decisions wherein the court modified custody to award medical decision-making power to the unsupportive parent: Smith v. Smith, No. 01-DR-86 (Common Pleas Ct. of Jefferson Cnty., Ohio, Sept. 4, 2004, and Williams v. Frymire, No. 2011-CA-001568-ME (Ky Court of Appeals).

The Ohio case, Smith, revolved around the parties' child, then 10 years old, who had expressed from a very early age a desire to be treated as a girl. Upon the parents' divorce, the mother was awarded custody. While the child was in her care, she supported the child's decision to live as a girl; she allowed the child to wear girl's clothing, go by the name Christine, participate in transgender support groups and generally be treated as a girl.

Several years following the divorce, the father petitioned the court for a change in custody after the mother enrolled the child in school as female without his consent. In an omission that later appeared almost fatal to her case, the mother further failed to obtain a diagnosis of GIDC (now gender dysphoria) prior to undertaking significant decisions relating to the child.

The court entered a temporary order directing the mother to immediately stop allowing the child to wear girl's clothing, to stop referring to the child by the name Christine, to stop using female pronouns and to stop talking privately with the child about the child's female gender feelings.

A lengthy custody dispute followed. At one point between hearings, the father discovered that the mother had violated the court order by allowing the child to wear a girl's swimsuit and was witnessed referring to the child by a female name when speaking with another parent of a transgender child.

During the proceedings, five expert witnesses testified during a custody hearing, two on behalf of the mother, two on behalf of the father and one court-appointed psychologist. Both parents acknowledged that the child wanted to live as a girl and wanted to remain with the mother. The child corroborated these statements in an in camerainterview with the judge.

As to the child's in cameratestimony, the judge acknowledged that the child relayed a desire to live as a girl. However, 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 "enjoy[s] a number of stereotypical male activities."

Following the hearing, the judge found that the mother was the actual cause of the child's desire to live as a girl: "Mother had fully embraced the child's female identity clouding the issue of what [the child's] feelings would have been at this point had mother been more supportive of [the child's] masculine identity." He further concluded that the child's "[m]other has not only been supportive of his female identity but has actually charged headlong into it with the apparent objective of making it come true."

The judge found the mother's refusal to allow the child to engage in corrective therapy to be extremely persuasive evidence to support his belief that the mother caused the child's cross-gender identification: "So resistant was she to the idea that [the child] should have a male identity that she refused to allow father to take [the child] to see Dr. Kenneth Zucker, who is reputed in the field to have data showing the condition to be reversible."

Ultimately, the judge awarded custody of the child to the father, allowing the mother only limited visitation.

Similarly, in the Kentucky case, Frymire, the judge modified custody to award primary caretaking and medical decision-making of the minor child to the father, who testified that he did not believe the child had a gender issue. The five-year-old girl in that case wore boy's clothing, was referred to by a male name and generally insisted on being treated as a boy.

At trial, the child's therapist testified that the child had GIDC, although she admitted that she did not perform any psychological tests prior to making that determination. The child's art therapist concurred, although she admitted that she lacked experience with transgender youth. The mother's expert thereafter affirmed the diagnosis.
In modifying custody from sole to joint, with the father being designated as the residential parent, the court did not dismiss the possibility that the child may have GIDC, but noted that girls can prefer male sports, toys and clothes without being medicated or requiring intervention. The Court of Appeals thereafter affirmed.

It appears that in both cases, there were a myriad of actions that the supportive parent could have undertaken to attain a more favorable result. At times, it seems that each case turned on technicalities: for instance, the supportive parent's failure to follow the court's orders, failure to obtain a qualified diagnosis prior to making significant decisions affecting the child, or failure of an expert to conduct the appropriate psychological testing.

Asaf Orr, a staff attorney with the National Center for Lesbian Rights who regularly represents parents in custody disputes involving transgender children, says that practitioners have much to learn from the actions of the supportive parents in both Smith and Frymire. He advocates that when confronting cases that involve childhood gender variance, practitioners should focus on the following guiding principles:

1. Encourage a supportive parent to retain competent health-care professionals from the very beginning. Orr believes that it is critical for the supportive parent to seek the advice of a competent health-care professional before making any major decisions regarding the child, including a psychologist, therapist or medical doctor. The attorney should ensure from the start of the case that the supportive parent follows the advice of those health-care professionals. The healthcare professional should treat the child as his or her patient and communicate with each parent openly and address any concerns raised by either parent.

2. Educate the court on the needs of transgender and gender-nonconforming youth.Like the general public,courts often have had little experience with issues involving transgender and gender-nonconforming youth. As a result, it is critical to be prepared to educate the court through the information contained in the pleadings and supplemented by scholarly materials and expert testimony. This will help the court better understand the child as well as the reason that the supportive parent is seeking the proposed custody arrangement or modification. In addition to having been successful in educating courts in several other cases, this approach creates a strong record for appeal, either to defend the court's order or demonstrate why it must be reversed.

3. Adopt a measured approach. Orr says that it is critical for supportive parents and transgender children to be patient with the transition. It is important to counsel your client to abide by court orders and to involve the noncustodial parent in decisions regarding the child's transition. This modicum of caution may mean delaying certain decisions. Orr warns that failure to act methodically and cautiously in this manner could result in the loss of custody to the nonsupportive parent, which could be more damaging than delaying transition. Nevertheless, attorneys should work with their clients to determine a strategy that will minimize the distress of delaying transition, while creating a record that supports the custody or modification being sought by the supportive parent.

As visibility of gender issues grows, New Jersey courts will no doubt soon encounter disputes such as those examined herein. Approaching these highly contentious and sometimes stigmatized gender issues in the proper way may determine the ultimate outcome of these cases.

Baer is a member of the family law practice group of Fox Rothschild in Princeton.

Reprinted with permission from the June 5 issue of the New Jersey Law Journal. (c) 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.