Exploring Identity

Abstract

Custody disputes between parents who disagree as to how to address their child’s gender identity have become the newest battleground in the country’s culture wars. This Article provides the first comprehensive analysis of custody cases involving “gender expansive children”—an umbrella term this Article uses to refer to transgender and nonbinary children, as well as children exploring nontraditional gender identities. By explaining the medical debates over treatment for gender expansive children and connecting these disputes to related precedent, this Article makes three distinct contributions.

First, this Article demonstrates that courts are focusing on the wrong question when adjudicating these cases involving pre-adolescent children. Judges have been trying to determine which parent is correct as to the child’s gender identity. However, the science of gender identity development indicates that only adolescent children’s gender identity is stable. The adult gender identity of pre-adolescent children, on the other hand, may be unknown until after a period of exploration. As a result, courts should be focused on which parent is best suited to help the child with the exploratory process, rather than its outcome.

Second, the Article reveals that courts have recognized children’s interests in exploring their identities as part of the “best interests of the child” analysis. By conducting an analysis of more than 90 custody opinions involving children who explore their sexual orientation, racial identity, and religious affiliation, this Article demonstrates that gender expansive child custody cases are the latest iteration of a long line of family court precedent involving judicially recognized fundamental identity characteristics. Just as judges have endorsed exploration in these analogous situations, so too should they recognize pre-adolescent children’s need to explore their gender identity.

Third, this Article provides decisionmakers with the practical information they need to resolve their cases. The “best interests of the child” standard is largely discretionary, which provides family courts with flexibility to promote children’s well-being. However, to reframe their approaches, family courts must have the relevant scientific data and precedent. Additionally, this Article argues that legislators should enact statutes that reinforce gender identity exploration, which they are more likely to do when armed with the scientific evidence and precedent that this Article provides. As a result, this Article’s analysis of medical literature and fundamental identity cases is more than a framework for understanding the issue—it is also part of the solution to the problem.

Keywords: family law, best interests of the child, transgender, LGBT, LGBTQ, custody, gender identity