California courts may weigh acceptance of child's gender identity in custody cases

California lawmakers have passed legislation requiring judges to consider whether a parent affirms their child's gender identity in custody and visitation proceedings

California Legislature (Copyright 2022 The Associated Press. All rights reserved)

California could soon require judges to consider whether a parent affirms their child’s gender identity when making custody and visitation decisions under a bill that cleared the state Senate on Wednesday.

The vote was split almost entirely along party lines, with Democrats arguing the legislation would help to protect the well-being of LGBTQ+ children whose parents are going through a divorce. Democratic Sen. Scott Wiener, who represents San Francisco, said the bill was a proactive measure.

“This is about not having to get involved after a child has been beaten and had their arm broken, or after they’ve been kicked out,” Wiener said. “This is about trying to make sure that something terrible does not happen to them.”

Every Republican in the state Senate voted against the bill, with state Sen. Kelly Seyarto, who represents Murrieta in Southern California, arguing that lawmakers were interfering too much with how parents choose to raise their children.

“Inserting this into the mix is going to pit one parent against the other and make things worse,” Seyarto said.

The vote comes amid intense political battles across the country over transgender rights, including efforts to impose bans on gender-affirming care, bar trans athletes from girls and women's sports, and require schools to notify parents if their children asks to use different pronouns or changes their gender identity.

The California bill would make gender affirmation one factor among many that courts already have to consider in custody proceedings, including whether a parent has been abusive and how much contact the child has with the parents. If the state Assembly agrees to amendments made to the bill, it would still have to be signed by Democratic Gov. Gavin Newsom to become law.

The bill would not require judges to prioritize whether a parent affirms their child's gender identity over other factors. What affirmation looks like varies depending on the particular child and their age, said Assemblymember Lori Wilson, a Democrat who introduced the bill. She has an adult son who came out as transgender when he was a teenager.

Wilson said gender affirmation could include letting children play with toys associated with their gender identity, getting their nails painted or wearing their hair at a length that feels comfortable. The bill does not lay out specific requirements related to gender-affirming surgeries, which minors in California cannot undergo without a parent’s consent.

“A child whose parents are going through a divorce is going through probably one of the worst and most challenging experiences of their life (up) to that point,” said Alexis Sanchez, an advocate with the Sacramento LGBT Community Center. The bill could lead to better outcomes for those children in the future, Sanchez said.

It was one of several bills that lawmakers introduced this year aimed at protecting LGBTQ+ children. The state Senate also approved legislation Wednesday to keep documents related to a gender change petition for a minor out of the public record.

California lawmakers have fewer than two weeks to vote on hundreds of bills before adjourning for the year.

One of the longest debates of the day was over a resolution asking the Congress to change the U.S. Constitution to restrict how people can buy guns. Newsom is pushing for a 28th amendment to the Constitution to require universal background checks, and to ban assault weapons, as well as guns to anyone under 21, and to impose a waiting period on all gun purchases.

To be successful, 33 states would have to pass resolutions asking Congress to call a constitutional convention. California could be the first state to do that. The state Senate passed the resolution, and it now heads to the Assembly.

“We must go further than thoughts and prayers,” said Democratic state Sen. Aisha Wahab, who said her father was murdered by gun violence.

Three Democrats joined all eight Republicans in voting against the measure. Wiener, the San Francisco Democrat, said he supports all of the proposals to restrict gun sales but voted against it because he's concerned a constitutional convention could lead to other, unpredictable changes to the law that would go beyond gun policy.

The resolution lawmakers approved on Wednesday calls for a “limited constitutional convention” that does not allow Congress to consider any amendments other than those relating to gun sales. State Sen. Shannon Grove, a Republican from Bakersfield, said she didn’t think other states would agree to that.

“This could open up a pandora’s box on the Constitution,” she said.

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Associated Press reporter Adam Beam contributed.

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Sophie Austin is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues. Follow Austin @sophieadanna