Transgender rights have become a hot-button topic in state legislatures across the country, with at least 22 states passing or targeting some type of anti-trans legislation. In contrast, others have passed laws intended to protect these children.
So, it's no surprise that parents living in the same home may not agree on their child's decision to seek gender-affirming care. Perhaps one parent believes the child is transgender and wants to support them, while the other does not believe them or thinks the child is too young to consider life-altering medical treatments and procedures. When the parents of a transgender or transitioning child are separated or divorced, the issue can muddy the waters of their child custody agreements.
What Is Gender-Affirming Care?
The World Health Organization defines gender-affirming care as a supportive form of healthcare that encompasses an array of social, psychological, behavioral, and medical interventions "designed to support and affirm an individual's gender identity" when it conflicts with the gender they were assigned at birth. Gender-affirming interventions may involve hormone therapy, "bottom" surgery, "top" surgery, facial plastic surgery, speech therapy, and psychiatric services, to name a few.
What Happens When Parents Disagree on a Child's Healthcare?
Generally, Pennsylvania law requires a parent's or guardian's consent for any type of medical treatment for any child younger than 18. If parents are divorced but have joint custody, they must make healthcare decisions on their child's behalf jointly, including decisions regarding gender transitioning. Neither parent can allow or disallow their child to seek gender-affirming care without the other's consent. So, until an agreement is reached between the two, their child cannot seek any form of gender-transitioning treatment.
Can a Judge Decide?
Parents who cannot agree on medical treatment for their child have often brought their issue to court for resolution. For example, during the COVID pandemic, many couples in Pennsylvania and across the U.S. who disagreed on whether to vaccinate their child against the virus let the court decide. In cases of medical care, courts generally rule that the parties should follow their healthcare provider's recommendations.
The great divide between states on transgender care, however, poses new complications. For example, let's say a Pennsylvania couple divorces, and the court awards the mother full custody of their transgender child. She has the sole authority to allow her child to seek gender-affirming care, and the child begins receiving hormone therapy. The father vehemently opposes his child's transitioning. Theoretically, he could move to Florida, where Gov. Ron DeSantis signed new legislation that views gender-affirming care as a form of "self-harm." Under the law, Florida judges can modify custody agreements from another state if a child is undergoing transgender care. So, the father could ask a Florida judge to grant him custody of the child.
It's too early to tell how custody disputes regarding gender-affirming care will play out, especially cases that cross state lines. But with more states introducing and passing laws strengthening their stances on either side of the issue, there's no doubt it'll remain a hot topic in family courts nationwide.