information or proper training in addressing childhood identity problems, becoming shocked and
automatically assuming a parent permitting their child to violate gender norms is irresponsible, if
not negligent.11 Because of the lack of relevant research and studies, it is unclear what causes
gender dysphoria and how many children have this disorder.12 Even after a diagnosis is made,
viewpoints on the best treatment method for gender dysphoria widely differ. This failure to be
educated or trained in regards to gender dysphoria goes from the doctor’s office to the courts,
where judges have a great deal of discretion in custody determinations. This discretion can lead to
parents who are supportive of their child’s gender dysphoria losing custody to the non-supportive
parent and disregarding children’s rights.13
Modern academic literature has been pushing on an international level for judges to take
children’s rights as a whole more seriously, even before adding children with gender dysphoria to
the equation.14 The theories regarding where children’s rights originate and what rights children
have are greatly disputed, making it difficult to create any clear standard. For example, children
can be deemed competent enough to access contraceptive advice and abortions but incompetent to
refuse life-saving treatment.15
Beyond the concept of children’s rights, courts struggle to develop best practices when
determining custody arrangements involving a transgender child. The role of the parent, the debate
over the proper application of the “best interests of the child” principle, and the judge’s discretion
in custody cases have created an environment where parents who are supportive of their child’s
self-identification run a high risk of losing custody if the treatment of the child’s gender dysphoria
is debated among the parents.
A best practices standard must be created and added to the policies regarding custody
proceedings in order to better protect children’s rights. These revisions may help standardize this
type of court proceeding and enable courts to make decisions focused more on empirical evidence
and the wishes of the child rather than basing their decisions on their personal biases and
conceptions of gender norms. While there is still a great deal of research to be done on this topic,
I have created a recommendation advocating the utilization of advisory councils in court
proceedings and an adherence to more uniform treatment options.
In Section II, this Article will first discuss background information about gender
dysphoria—usage of the term “transgender” in this Article, social perceptions of transgenderism,
and treatment of this issue compared to other issues related to minors. Section III will discuss the
gender dysphoria diagnosis will be introduced in Section III, as well as treatment options available.
Section IV will explore how a minor’s identification as transgender affects major aspects of that
12 J. Lauren Turner, From the Inside Out: Calling on States to Provide Medically Necessary Care to Transgender
Youth in Foster Care, 47 FAM. CT. REV. 552, 553–54 (2009) (“There are a number of reasons for the lack of statistical
date representing the number of transgender youth . . . .”); see also Barbara Fedders, Coming Out for Kids:
Recognizing, Respecting, and Representing LGBTQ Youth, 6 NEV. L.J. 774, 779 (2006) (“To date no one has
completed a study assessing the number of transgender youth.”).
13 David Alan Perkiss, Boy or Girl: Who Gets to Decide? Gender-Nonconforming Children in Child Custody Cases,
25 HASTINGS WOMEN’S L. REV. 57, 74–75 (2014) (When courts determine whether a child has gender dysphoria, if
no diagnosis is made, then treatment is not ordered. A consequence of the failure to make a diagnosis is that courts
then find it harmful for a child to live with a parent supporting the child’s nonconforming identity).
14 John W. Tobin, Judging the Judges: Are They Adopting the Right Approach in Matters Involving Children? , 27
MELBOURNE U. L. REV. 579, 581 (2009) (While the United States has not ratified the United Nations Convention on
the Rights of Children, the author views this issue through an international lens); see also Fedders, supra note 12, at
778 (“Universal agreement on what ‘transgender’ means is . . . lacking.”).