Making decisions for transgender children who seek to transition is a delicate situation. And, how to handle it is even more challenging when having to deal with it within the legal system. (Photo Credit: devenorr via Adobe Stock)

The Younger/Georgulas case out of Texas highlights a custody dispute between the parents of a seven-year-old born as male whom the mother (as well as other caregivers, including teachers) believes identifies as a female named “Luna.” The mother advocated for gender-affirming care for the child. The father strongly, and very publicly disagreed. A legal battle ensued. The court’s initial decision provided for the mother to have the care and custody of the child, who has identified as female since the age of three according to the mother and other trial witnesses.

The public has followed along with the details of this case through media reports inciting polarizing positions, including the governor of Texas weighing in via threatening an investigation of the mother by child protective services. There has been public speculation that pressure from Texas officials was what led to the Judge quickly reversing her initial decision to allow the mother to have full conservatorship (the equivalent of primary custody), to requiring the parties to jointly share custody of the child. For a family already in crisis trying to co-parent children after separation, this disagreement over gender dysphoria has added another layer of difficulty leading to the child’s private life being subject to very public scrutiny. Given their disagreement, the parties are not providing consistent care for the child, which likely causes more confusion and trauma for the child.

When it comes to parenting a transgender or gender fluid child, even celebrities such as superstar basketball player Dwayne Wade, are not immune from the court of public opinion. Wade has been both applauded and harshly criticized over recent family photos wherein his son was wearing a cropped top and had polished nails. Wade posted several responses in support of his son and in the protection of his family including the heartwarming statement that “[a]s a parent my only goal is that my kids feel that I see them, love them and support them.”

What does it mean to provide gender-affirming care?

Gender-affirming care can include the provision of support for outward appearance choices, obtaining counseling, administration of hormones, voice therapy, dermatologic changes and in some cases, actual gender re-assignment. In the case of Luna, the testimony expressed that given the age of the child the gender-affirming care was primarily social in nature, including having long hair, choosing clothing that might be considered feminine and requesting others to use feminine names and pronouns. However, Luna’s father reportedly provided misinformation indicating that the mother was seeking immediate chemical castration. It is believed he was incorrectly describing hormone treatments to suppress testosterone production. The mother denied such plans, indicating she had only planned to take the child to a health clinic specializing in assisting transgender children to discuss options and support.

Why did the parties have to seek court intervention over this decision?

The provision of gender-affirming care would fall under the umbrella of legal decision-making in a custody case. When parties are still married or are able to make co-parenting decisions together about such issues as gender identity effectively, there is less controversy. However, when the parents disagree over such a significant parenting decision, particularly when they are separated, it creates an unfortunate side effect of negatively impacting the child. If the issue is litigated, public court documents contain the intimate details of the disputes on decisions that need to be made for the child.

This effectively “outs” the child — particularly if the case grabs media attention as the Texas case did. This can have consequences on the child’s school experience, social interactions and self-image. Even in cases that do not garner as much attention, the fundamental difference between parents on such a significant issue can cause a polarizing impact on the child’s relationships with each parent, cause them to resist spending time with one parent and likely cause further emotional distress in an already stressful situation.

The parents can maintain more control and privacy by working together with mental health and medical professionals to tailor a plan that is best for their child, rather than letting third parties make these decisions in a public forum. At a minimum, they could better protect the child’s privacy by using a parenting coordinator or engaging in private arbitration if they must have someone else break the tie in their positioning.

What are some other considerations?

Consider the best insurance plan for gender-affirming care treatments when selecting a plan. Some states have better protections than others for ensuring such coverage is not denied. The uninsured portions of such care could be considered as an extraordinary expense and have an impact on the calculation of child support.

In summary, any major decision that impacts the well-being of the child must be either agreed upon by the parents or a third party will need to decide. Even if one parent has primary legal custody, the other parent can file a motion to modify or for other relief if the parents encounter a significant disagreement. The court will typically apply the best interests of the child standard, which is where the focus should be. Parents are strongly encouraged to try to work together, even if they disagree, with medical and therapeutic professionals who can make recommendations to best support the child.

Patra A. Sinner is a North Carolina Board Certified Family Law Specialist attorney with Sodoma Law.