California law will require judges to consider parents’ stance on gender identity in custody battle

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California approved a bill that instructs judicial courts in the state to consider, as one of its factors when making custody and visitation decisions, whether a parent affirms a child’s gender identify. Critics of the bill argue it will cause parents, who don’t support their kid’s desire to pursue gender-affirming surgery, to lose custody of their children. 

The California bill, AB-957, which passed in both houses of the state assembly on September 8, would consider parents’ “affirmation of the child’s gender identity or gender expression as part of the health, safety, and welfare of the child.” The bill awaits Governor Gavin Newsom’s, D-Calif., signature. 

Many parents are concerned this could mean that if they don’t accept their child’s use of puberty blockers, cross-sex hormones or surgery, they could face the prospect of losing custody of their children. 

“Affirmation includes a range of actions and will be unique for each child, but in every case must promote the child’s overall health and well-being,” the legislation states.

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In line with the intentionally vague language of the bill, the bill’s sponsor, California Assemblymember Lori Wilson, said “affirmation is left undefined to allow the greatest extent of judicial discretion.” 

There are no specifications in the bill about the age of a transgender-identifying child, how long they have identified as transgender or any recognition of the difference between the affirmation of a social transition in comparison to medical intervention. 

Trans youth activists signs

In addition to the concern they could lose custody of their children, many parents are concerned about what “affirmation means.”  (Michael Siluk/UCG/Universal Images Group via Getty Images)

Wilson has made it clear that AB 957 adds a parent’s affirmation of their child’s gender identity as “one factor” that a judge must consider in a custody dispute. She has previously emphasized the bill’s focus on affirming a child’s choice of gender “whatever it is” adding it is “our duty as parents is to affirm our children.” 

“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,” she said in a statement to Fox News Digital. 

Wilson blamed “online vitriol” over the bill on a “coordinated and sophisticated misinformation campaign that has been adequately fact-checked by the AP and others.” She said the focus of the bill is about “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.”

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In contrast, Protect Kids California spokesperson and recently elected school board member, Jonathan Zachreson, told Fox News Digital that California has established “very concerning” policies that lead children struggling with gender related issues towards a single path of lifelong medicalization. 

“AB 957 would be one more of those policies if signed by the governor,” he said. “Fortunately, Protect Kids California introduced an initiative to mitigate some of these harmful policies by prohibiting irreversible medical procedures that could possibly render someone sterile for anyone under 18.”

“We encourage everyone in the country to visit http://ProtectKidsCA.com to learn how they can help get this initiative on the November 2024 ballot,” he added.

Some new outlets, including the Associated Press, as mentioned by Wilson, have called out the “critics” of the bill, stating the legislation doesn’t use the word “surgery.” Although, some attorneys believe the vague language of the legislation is exactly what is harmful about it. 

Erin Friday, a California lawyer and mother to a daughter who transitioned and later detransistioned, told Fox News Digital that under this bill she would have lost custody of her daughter had it been in place when she was questioning her gender as she did not affirm her daughter in the transition. 

“Any parent who won’t affirm their child now, risks losing custody of their child,” Friday said. “California will be the first state to find parents abusive if they don’t agree to affirm their child’s gender identity, and we don’t even know what that means.” 

“957 is not limited to divorce situations, and this is what the author will tell you: it’s just a divorce, and it’s just one prong, and that is untrue,” she added. “Because the bill ties gender affirmation to three very important words and those are health, safety and welfare. Those words are magical words. They have a meaning in law, which the author doesn’t want you to know about.”

The California Family Code 3020 states it is public policy “to ensure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children.”

Friday said “any” being the key word means “the judge must look at that in any custody claim, not just divorce.” In addition, “the penal code in California for abuse or neglect uses the words health and welfare,” she added. 

“They’re backdooring it,” Friday said. “They’re actually saying that the health, safety and welfare of all children is tied to affirmation and that’s how you get to where parents like me who did not affirm their child, could lose custody of their child.”

Trans Visibility Day Rally in Rome

California parents are wondering what impact the legislation could have if they don’t accept their child’s use of puberty blockers, cross-sex hormones or surgery.  (Andrea Ronchini/NurPhoto via Getty Images)

“Must they put them on puberty blockers?” she asked. “Must they cut their body parts off? Must they put them on cross-sex hormones, or must they just give them a haircut? What if the parents are religious and their religion says that they cannot affirm the child’s gender identity?”

“What happens when one parent is only willing to affirm by using a different name and the other parent is willing to cut the child’s gonads? Who wins?” she continued. “What happens if neither parent will affirm the gender identity? Who takes the kid?”

She said the vagueness of the legislation leaves parents wondering what “affirmation means,” but said the state is saying that in order to be a “good parent … You must affirm your child, otherwise you are undeserving of your children.”

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Wilson introduced it the legislation alongside co-sponsor State Sen. Scott Wiener, who amended the bill to rewrite California’s standard of childcare under the California Family Code. Sen. Weiner has also advanced separate bills requiring foster parents to affirm the gender identities of children coming into their homes, as well as a bill that would make California a haven for LGBTQ children to obtain sex changes without parental consent. 

Conservative new outlet, The Daily Signal, warned that by changing the definition of what constitutes the “health, safety, and welfare of [a] child,” the bill would open parents, as well as other organizations like schools, churches and hospitals, who don’t affirm a child’s gender transition, to face charges of child abuse.

Friday described the bill as “frightening,” but said the law is unconstitutional and an abrogation of parental rights that will be challenged in court. 

Wilson said in a statement provided to Fox News Digital that she has consulted with judges and lawyers and feels “very confident” that there are no constitutional concerns with the bill. 

Wilson, who is the mother of a transgender son, said in a statement following the bill’s passage, which was forwarded to Fox News Digital, that she felt “extreme gratitude” to her colleagues for passing AB 957 “with such overwhelming and strong support.”

Transgender kids

The bill’s sponsor, California Assemblymember Lori Wilson, indicated that the legislation was written in an intentionally vague manner and because “affirmation is left undefined” it allows “the greatest extent of judicial discretion.”  (Stephen Zenner/SOPA Images/LightRocket via Getty Images)

AB 957 is co-sponsored by the Women’s Foundation of California, Equality California, TransYouth Liberation, Los Angeles LGBT Center, TransFamily Support Services, Gender Justice Los Angeles, the EmpowerTHEM Collective and the California TGI Policy Alliance.

Equality California Executive Director Tony Hoang blamed other states in the U.S. for “attacking LGBTQ+ youth” which Los Angeles LGBT Center CEO Joe Hollendoner called “anti-trans legislation.”

“While states across the country are attacking LGBTQ+ youth, California continues leading the way to ensure that LGBTQ+ youth are protected, healthy, and can live their authentic life in an environment that accepts and supports them,” Hoang said. “Family acceptance of LGBTQ+ youth is strongly associated with positive childhood development, mental and physical health, and overall wellbeing.”

“Assemblymember Wilson’s AB 957 underscores familial acceptance as essential for transgender youth to live safely and proudly,” Hollendoner said. “As the tidal wave of anti-trans legislation continues to flood our country, it is especially vital for California to take a leading role in supporting the rights and dignities of our trans youth and their families.”

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