Youth in Transition: Legal Issues for Transgender Youth
Transgender youth (and adults) have been subject to an unprecedented level of scrutiny as many states have moved to restrict their access to health care, bathrooms, and sports. Prohibitions on health care for transgender minors purport to protect youth, despite longstanding consensus among medical and mental health professionals that acceptance and support are crucial for the well-being of transgender youth.1 In a recent Trevor Project poll, 86% of transgender and nonbinary youth reported that debates around anti-trans bill negatively impacted their mental health; nearly one in three youth reported not feeling safe to seek ordinary medical care when they were sick or injured.2 Other states, including California, have enacted laws protecting transgender youth and their parents:
Effective January 1, 2023, SB 1073 prohibits out-of-state agencies from removing transgender youth from the custody of fit parents, protects families from out-of-state subpoenas seeking children’s private medical information, and bans California law enforcement from cooperating with out-of-state efforts to arrest or extradite a person who provides or receives transgender health care. SB 107 also clarified that denial or lack of access to health care can constitute an emergency allowing California courts to take jurisdiction, analogous to longstanding domestic violence exceptions.
If enacted, AB 9574 would clarify that when California family law courts make determinations about the best interests of a child, they must consider the importance of acceptance and support of a child’s gender identify or expression upon their overall health and well-being. Practitioners should be aware that some school districts have moved to enact policies requiring school staff to immediately “out” youth seeking to use a different name, pronouns, or bathroom to their parents.5 Such policies put youth at risk by not allowing educators to use their discretion when students disclose sensitive information that may put them at risk of parental rejection or abuse. There is well-documented evidence that transgender children and teens experience higher rates of emotional, physical, and sexual abuse.
Practitioners should be prepared to address common misconceptions, such as that a child is “too young” to know their gender identity. Children, whether they are transgender or not, typically develop a sense of gender identity – a deep-seated aspect of who they are – in early childhood. Evidence shows that youth who continue to identify as transgender after the onset of puberty are highly likely to be transgender as adults. Transgender identity remains uncommon and is not a “phase” or a “trend.” Transgender health care (also known as gender-affirming care) is safe, effective, evidence-based, and conservative.
The World Professional Association for Transgender Health first promulgated a standard of care in 1979. Its standards have been adopted by every major U.S. professional association of medical and mental health providers. Gender-affirming care is the only safe and effective treatment for gender dysphoria. The harms of denying or delaying care are equally well-documented. Practitioners should be prepared to explain that denial of care results in irreversible bodily changes that can cause lifelong distress and puts youth at risk of other serious harms. Attempts to change a young person’s gender identity or expression are harmful and have been condemned by every major medical and mental health organization in the country.
Parents who support a transgender or gender nonconforming child may be accused of “pushing” the child to be transgender. They may also be accused of alienation or factitious disorder. There is no evidence that parents can “make a child transgender.” Parents often support a child’s social transition – using a name, pronouns, hairstyle, clothing, and mannerisms that feel comfortable – out of appropriate concern for their mental health. Transgender youth typically undergo a lengthy course of individual and, in some cases, family therapy with experienced providers who determine the best course of treatment for an individual child. Youth, parents, and providers work together to make decisions in each individual child’s best interest. When deemed medically appropriate for an individual youth, medications that “pause” bodily changes and, for older adolescents, hormone therapy are effective and safe for use in minors with appropriate monitoring. Surgeries are rarely performed on minors, and never on young children. Genital surgeries are not performed on minors. Rarely, minors in their mid-to-late teens with longstanding and severe dysphoria may receive chest reduction surgery if they, their parents, and their providers believe it is appropriate.6
Custody and Visitation Proceedings
As with all youth who are the subject of custody/visitation proceedings, high-conflict parental dynamics and protracted litigation are harmful to LGBTQ+ youth. Youth whose identity represents a significant point of parental contention are particularly at risk of emotional harm, and delays in case resolution may cause them irreparable harm due to the time-sensitive nature of some treatments. Practitioners involved in matters involving transgender youth should strive to reach an amicable and speedy resolution if remotely possible, and toward that end should avoid labeling parents as “affirming” or “non-affirming.” Support is a spectrum; parents may engage in a mix of affirming and non-affirming behaviors, and views and behaviors may evolve. It is important to leave room for nuance and growth.
Parents love their children, and they may fear that transitioning will subject their child to bullying, discrimination, or harassment. Practitioners should compassionately guide clients to recognize that not supporting their child and refusing access to medical care will be far more harmful. Parents whose beliefs preclude their agreement to or involvement in their child’s medical care may be willing to allow the more supportive parent to take responsibility for managing treatment. If litigation is unavoidable, practitioners should emphasize that parents frequently disagree regarding how best to address a child’s mental health. While parents who fear labeling, stigmatizing, or “locking into” a diagnosis should not be demonized or dismissed, more proactive parents who seek evidence-based care are better able to meet their child’s medical needs.
Child Welfare Proceedings
LGBTQ+ youth are disproportionately represented in the child welfare system. Many LGBTQ+ youth experience family rejection due to their sexual orientation or gender identity (“SOGIE”). Again, it is crucial for practitioners to be aware and to ensure parents of LGBTQ+ youth are aware that the research data is clear: the level of family acceptance or rejection is the single most determinative factor of a transgender child’s short-term and long-term mental health and overall well-being. Evidence-based, culture-based, and faith-based resources for families are available at the Family Acceptance Project website.⁷ Youth placed in foster and group homes have the right to be placed according to their gender identity. Outcomes for youth “aging out” of foster care are extremely poor: 50 percent experience homelessness within 18 months of exit. If youth cannot reunite with their parents or relatives, practitioners should prioritize identifying other trusted and affirming adults who can serve as legal guardians or social supports for youth into their adulthood.
Juvenile Justice Proceedings
LGBTQ+ youth also are overrepresented in the juvenile justice system. Homeless and runaway youth may engage in “survival crimes” such as shoplifting, selling drugs, or prostitution to obtain shelter, food, or other basic necessities. Practitioners representing youth in juvenile justice proceedings should create a safe and welcoming environment, avoid making assumptions about their clients’ SOGIE, and consider how their clients’ identities and family relationships may have impacted their situation. Practitioners representing detained or incarcerated youth should be aware that youth have the right to be safe and free from discrimination and harassment. Staff may not isolate youth in order to protect their safety, and facilities must provide appropriate accommodations such as private showers. Practitioners should clarify whether and when they may share information about their clients’ SOGIE, should ensure that their clients’ preferred names and pronouns are used consistently, and should keep in mind that clients’ SOGIE is only one aspect of their identities and experiences.
1. Medical Organization Statements on Transgender Health Care – Trans Health Project https://transhealthproject.org/resources/medical-organization-statements/
2. New Poll Emphasizes Negative Impacts of Anti-LGBTQ Policies on LGBTQ Youth | The Trevor Project. https://www.thetrevorproject.org/blog/new-poll-emphasizes-negative-impacts-of-anti-lgbtq-policies-on-lgbtq-youth/
3. Bill Text: CA SB107 | 2021-2022 | Regular Session | Chaptered | LegiScan.
4. Bill Text: CA AB957 | 2023-2024 | Regular Session | Enrolled | LegiScan.
5. Several of these policies have been challenged and enjoined.
6. PolitiFact | Transition-related surgery limited to teens, not ‘young kids.’ Even then, it’s rare https://www.politifact.com/factchecks/2022/aug/10/ron-desantis/transition-related-surgery-limited-teens-not-young/
7. LGBTQ Family Acceptance
8. National Center for Lesbian Rights