rights to bring up their child.
160 Under Lawrence, the court holds that even if people could choose
their sexual orientation that the choice is completely personal and should not be influenced by the
force of the state, implicitly saying that the state cannot see a person’s sexual orientation as a
161 Lastly, Limon holds that the enforcement of “traditional sexual development
of a child” and preservation of “traditional sexual mores of society” are insufficient interests,
further establishing that societal disapproval is not a valid reason to restrict liberty.
B. Critical Factors in Determining Custody
1. Parental Rights
Children’s rights are neither limited in scope nor balanced against the rights of the parents
or State; they are rights-in-trust.
163 The State delegates these rights-in-trust to parents and affords
them wide discretion, assuming the parents act with the child’s best interests at heart.
child’s custodians must provide conditions for the child to become an adult who is able freely and
in an informed way to make choices.”
165 The ability to express gender nonconforming behavior is
part of a transgender child’s autonomy and, accordingly, a parent acting with their child’s best
interests in mind should support these expressions.
Parents have a conditional—not absolute—deference over their children contingent on
parental responsibilities being carried out in a way that routinely favors the children’s rights.
Laurence D. Houlgate, co-founder of the Society for Philosophy and the Family, in Children’s
Rights, State Intervention, Custody and Divorce, states that, “any interference in the child’s attempt
to exercise his rights is justifiable only if it can be proved that this is necessary to protect his future
167 It would then follow that, if giving support to a transgender child is the best practice
and being non-supportive greatly raises the risks for negative, and even deadly, consequences, a
parent being unsupportive of their child’s gender nonconforming behavior would not be able to
justify their actions.
Some non-supportive parents object on religious grounds to supporting their child, but
parents cannot subject their child to harm on the basis of their religious beliefs.
168 The State, acting
as parens patriae, does not have its authority nullified where the parent grounds their “claim to
control the child’s course of conduct on religion or conscience.”
169 Consequently, failure to support
a gender nonconforming child should be viewed as a parent trying to dictate that child’s
160 Troxel v. Granville, 530 U.S. 57, 58 (2000).
161 Lawrence v. Texas, 539 U.S. 558, 574 (2003).
162 State v. Limon, 122 P.3d 22, 34-35 (Kan. 2005).
163 LAURENCE D. HOULGATE, CHILDREN’S RIGHTS, STATE INTERVENTION, CUSTODY AND DIVORCE:
CONTRADICTIONS IN ETHICS AND FAMILY LAW 38, 45 (2005) (where rights-in-trust is defined as “rights which
children possess but which, in some cases, they are justifiably prevented from enjoying.”).
164 Hulstein, supra note 68, at 184 (2012); see Troxel, 530 U.S. at 65–66.
165 HOULGATE, supra note 163, at 45.
166 Tobin, supra note 14, at 587 (“deference given to parents is far from absolute and remains conditional on the
exercise of parental responsibility being directed to and undertaken in a manner that is consistent with the realization
of a child’s rights, including the recognition of their evolving capacity.”).