Understanding Issues Affecting Transgendered Youth

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Understanding Issues Affecting Transgendered Youth

Avi Levy and Nathan Gabbard

Avi Levy is a partner at Trabolsi & Levy, LLP, a family law firm in Santa Monica, CA. He has been practicing family law exclusively since 2002, and became a Certified Family Law Specialist in 2011. He is uniquely involved in the development of family law legislation as Chair of Affirmative/Developing Legislation for the Family Law Section of the State Bar of California. Mr. Levy is also the Chair of Legislation for the Executive Committee of the Family Law Section of the Beverly Hills Bar Association, is on the Board of Directors of the Association of Certified Family Law Specialists, and is a member of the Association of Family and Conciliation Courts, and the Family Law Section of the Los Angeles County Bar Association. Mr. Levy was designated as a "Super Lawyer Rising Star" in the July 2006, 2008, 2010, 2011, 2014, 2015 and 2016 editions of the Los Angeles Magazine.

Nathan W. Gabbard practices family law at Trabolsi & Levy, LLP in Santa Monica, CA. He graduated from Southwestern Law School and was licensed by the California State Bar in 2009, and is certified as a Family Law Specialist by the State Bar of California Board of Legal Specialization. He participates in the Los Angeles Regional Legislative Committee, served on the Executive Committee of the LGBT Bar Association of Los Angeles and is a member of the Leadership Council for the Los Angeles Center for Law and Justice ("LACLJ"). In the past, Mr. Gabbard has volunteered as a presenter of Safer Community workshops, providing information and opening a dialogue with incoming college students about domestic violence.

Despite the fact that family law clients typically present a wide range of issues to their respective lawyers, they share a common emotional concern and uncertainty about what the future holds for their loved ones. As family lawyers, it is important that we tailor our professional guidance to each individual client based on his or her unique needs and that this counsel reflects the ever-evolving legal climate.

A key issue in our current legal climate is that of transgender youth and the associated legal issues, which require family lawyers to practice contemplative counseling and informed advocacy and awareness. Every family law practitioner must understand these issues. The purpose of this article is to further that understanding.

General Statistical Information

According to recent estimates, approximately 0.6% of the adult population in America identify as transgender. This equals roughly 1.4 million self-identifying transgender individuals1 Compared with older adults, young adults are even more likely to identify as transgender. Among adults ages eighteen to twenty-fout, 0.7% identify as transgender; among adults ages twenty-five to sixty-four, 0.6% identify as transgender; and among adults ages sixty-five and older, 0.5% identify as transgender. In the County of Los Angeles alone, there are an estimated 14,428 transgender adults.2

Statistics about the number of children who identify as transgender, however, are less readily available. In fact, there is little or no data available on the number of young children in the U.S. who currently identify as transgender. Experts argue that it is difficult to obtain accurate data when information about young children must be obtained through their parents, who are unaware that their child identifies as transgender. Nonetheless, it has been suggested by some developmental psychologists that children as young as two or three may express a gender identity different from what was assigned to them at birth.3

Despite the difficulty in obtaining accurate national population estimates for transgender youth, information is available regarding those who seek services through local organizations. Between July 1, 2015, and June 30, 2016, the Los Angeles LGBT Center provided services to 1,030 homeless youth, of which 55% identified as male, 30% identified as female, 12% identified as transgender, and 3% stated "other identity." From this twelve-month sampling alone, however, we see that at least 123 individual youth have identified as transgender.4

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In the News and Current Events

On September 29, 2016, California Governor Jerry Brown signed legislation5 that requires single-occupancy restrooms in California businesses, government buildings, and places of public accommodation to be universally accessible to all genders. The law will take effect on March 1, 2017.

On October 28, 2016, the Supreme Court of the United States granted certiorari in Gloucester County School Board v. G.G ("G.G.").6 The case involves a transgender youth, Gavin Grimm, who challenged his local school board’s decision requiring Gavin to use the restroom for the gender Gavin was assigned at birth (not the gender with which Gavin identifies). Gavin claims "the Board impermissibly discriminated against Gavin in violation of Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the Constitution." The Supreme Court granted certiorari to determine two of the three questions presented in the petition:

  1. Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and
  2. whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. §106.33, which provides that a funding recipient providing sex-separated facilities must "generally treat transgender students consistent with their gender identity," should be given effect.

The writ of certiorari comes after the enactment of House Bill 2 ("HB2")7 in North Carolina, which was passed by the General Assembly and was signed into law by Governor Pat McCrory on March 23, 2016. HB2 requires public agencies and schools to ensure that individuals use single-sex changing facilities and restrooms according to the gender assigned on the individual’s birth certificate.8 HB2 is currently being challenged in Carcano, et al., v. McCrory.9

In August 2016, Thomas D. Schroeder, District Judge for the United States District Court for the Middle District of North Carolina, issued a preliminary injunction, preventing the University of North Carolina from enforcing Part 1 of HB2 against the individual transgender Plaintiffs challenging the new statutes.10 The case is scheduled to go to trial in May of 2017.11

Gender Identity in Foster Care Placement

In California, the Foster Care Non-Discrimination Act12 provides clear protections and prohibitions against discrimination. Specifically, it prohibits discrimination on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identify, mental or physical disability, or HIV status.

It is the policy13 of the state that all minors and non-minors in foster care shall have the following rights: … To have fair and equal access to all available services, placement, care, treatment, and benefits, and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status.14

Furthermore, on January 1, 2016, S.B. 731 §16006 was added to the California Welfare and Institutions Code, to read (in pertinent part): "Children and non-minor dependents in out-of-home care shall be placed according to their gender identity, regardless of the gender or sex listed in their court or child welfare records." The bill imposes a state-mandated local program and requires the State Department of Social Services to adopt regulations consistent with these additions.

Gender Identity in Family Law Matters

While laws around the country are being enacted, challenged, and shaped through various legislative and judicial processes, it is not difficult to imagine scenarios in which gender identity may impact the practice of family law in California. Parents sometimes face the most difficult life decisions a person will make when it comes to making decisions about their children. It is not uncommon for parents to disagree on how to raise their child and/or whether their child should receive mental health counseling.

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The way parents engage, support, and guide their children is a familiar examination in the practice of family law and child custody proceedings. Some experts suggest that family support is critical to the health, safety, and wellbeing of a transgender youth. Further, rejection of transgender youth by family can lead to youth engaging in behaviors that put their health at risk; can trigger battles with depression or mental health concerns; and even lead to homelessness or suicide.15 Therefore, family support of transgender youth can be the difference between life and death.16

Child custody determinations are based on the "best interest" of the child and are driven by considerations of their health, safety, and welfare17 as well as each parent’s respective understanding of the child’s temperament and development.18 The factors to be considered in making a determination of the best interest of the child are wide-ranging. However, they are not boundless. For example, a parent’s sexual orientation or gender alone is not considered a proper basis for determining the child’s best interest.19

Does the determination of child custody change in any way when the issue presented involves parents disagreeing over important decisions regarding their transgender child? Research conducted for this article provides no support for answering in the affirmative. Nonetheless, the issue may still arise in various family law settings and deserves continued, meaningful contemplation.

What might a judicial determination look like regarding the best interest of the child when parents do not agree whether the minor child should be allowed to identify as a gender other than that which the child was assigned at birth? If a child identifies as transgender, what is in his or her best interest regarding the child’s name and gender as reported on the child’s school records or on important legal documents? On what factors does a court rely in determining a dispute between parents who are not in agreement about whether or not to allow a child to begin hormone therapy?

The ability to make important decisions about a child’s medical care falls within the ambit of legal custody. Does a court weigh differently a parental decision about a child who expresses interest in seeking medical or psychotherapeutic services and treatments to commence transitioning to the gender with which he or she identifies? If the court determines which parent will make the decision on an issue such as medical and psychotherapeutic treatment, is the effect any different from the court determining whether it is in the child’s best interest to receive the treatment so desired?

Is the court substituting itself as a parent when the parents disagree?

One area in which certainty and clarity exists is that of school records. It is a federally protected right to have a minor’s name and gender changed on school records. Pursuant to the Family Educational Rights and Privacy Act ("FERPA"),20 the privacy of a student’s education records is federally protected. FERPA grants parents the right to request the changes for their children under the age of eighteen years, and the right transfers to the student upon the student’s reaching the age of majority or commencing schooling beyond the high school level. (34 C.F.R. § 99.4-5). Transgender students are authorized to request an amendment to their educational records that are "inaccurate, misleading, or in violation of the student’s rights of privacy." 34 C.F.R. § 99.7(a)(2)(ii).

Families from all walks of life may face family law questions involving a person who identifies as transgender. "Transgender and gender-variant children come from all kinds of families: liberal, conservative, non-political, religious, agnostic, atheist, gay, straight, 2-parent households, single parents, blended families, and so on."21

In a time when the scope of what defines a "family" is evolving, judicial officers are tasked with fairly and equally applying the law in balance with cultural competency. "A family court judge must be sensitive and attentive to issues of class, race, age, citizenship, marital status, and gender, which operate at varying levels in any case type—some explicit, some implicit."22 It is incumbent upon family law practitioners to assist judicial officers by framing the issues in a clear and unbiased manner, according to relevant and applicable legal standards, loyalty to their clients, and without inserting subjective criteria such as their own personal perspectives or beliefs.23 With this in mind, these tools are now available from us for those who may seek our professional guidance.

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Notes:

1. Andrew R. Flores, Jody L. Herman, Gary J. Gates, and Taylor N. T. Brown, How Many Adults Identify as Transgender in the United States, June 2016, http://williamsinstitute.law.ucla.edu/research/how-many-adults-identify-as-transgender-in-the-united-states/#sthash.wzuvaBUP.dpuf.

2. Trista Bingham, PhD, MPH and Juli Carlos-Henderson, MPH, Los Angeles County Transgender Population Estimates 2012, L. A. County Dep’t. of Pub. Health.

3. Jan Hoffman, As Attention Grows, Transgender Children’s Numbers Are Elusive, ,N. Y. Times, May 17, 2016.

4. Special acknowledgment and gratitude to Simon Costello and Cameron Faber at the Los Angeles LGBT Center.

5. A. B. 1732 2015-2016 Reg. Sess.

6. Gloucester County School Board v. G.G., Docket No. 16-273, supremecourt.gov.

7. 2016 N.C. Sess. Laws 3, House Bill 2.

8. 2016 N.C. Sess. Laws 3 §§ 1.2-1.3.

9. JOAQUÍN CARCAÑO, et al., versus PATRICK MCCRORY, in his official capacity as Governor of North Carolina, et al., 1:16CV236 (M.D.N.C).

10. Memorandum Opinion, Order And Preliminary Injunction, August 26, 2016, 1:16CV236 (M.D.N.C).

11. Lambda Legal, ACLU File Opening Brief in Appeal to Protect All Transgender People Harmed by Discriminatory H.B. 2, October 19, 2016, http://www.lambdalegal.org/news/nc_20161019_opening-brief-protect-all-trans-people-north-carolina-hb2.

12. A.B. 458 2003-2004 Reg. Sess., signed into law in 2003, took effect on January 1, 2004.

13. Cal. Welf. & Inst. Code § 16001.9.

14. Cal. Welf. & Inst. Code § 16001.9(a)(23).

15. Caitlyn Ryan, PhD, ACSW, Supportive Families, Healthy Children, San Francisco State University, 2009.

16. http://www.hrc.org/resources/transgender-children-and-youth-understanding-the-basics.

17. Cal. Fam. Code § 3020(a).

18. For a more detailed discussion of the "best interest of the child" standard, see the two-part article by Honorable Thomas Trent Lewis, Exploring the Best Interest of the Child Standard, 3 Fam. L. News, , 2012, Vol. 34 No. 3 and Issue 4, 2012, Vol. 34 No. 4.

19. Elisa B. v. Superior Court, 37 Cal. 4th 108 (2005); Nadler v. Superior Court, 255 Cal. App. 2d 523(1967); Marriage of Birdsall, 197 Cal. App. 3d 1024 (1988).

20. Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 C.F.R. §§ 99.00 et seq.).

21. Myths About Transkids, trans-parenting.com.

22. Natalie Anne Knowlton, IAALS, The Modern Family Court Judge: Knowledge, Qualities & Skills for Success, Institute for the Advancement of the American Legal System, October 2014.

23. Canon 5 of the American Bar Association Model Rules: A Lawyer Should Exercise Independent Professional Judgment On Behalf Of A Client. The professional judgment of a lawyer should be exercised within the bounds of the law solely for the benefit of his client and free of compromising influences and loyalties. [Neither] his personal interests should be permitted to dilute his loyalty to his client. (Ethical Consideration 5-1.) A lawyer should not accept proffered employment if his personal interests or desire will, or there is a reasonable probability that they will affect adversely the advice to be given or services to be rendered. (Ethical Consideration 5-2.).