parent in an attempt to deter the youth’s emerging gender identity or expression, that judge would
then be essentially imposing his or her own understandings of “the attributes of personhood” on
the youth through the compulsive force of the state, resulting in a violation of the principles
developed in Lawrence.
195
It is in the wide range of discretion a judge holds that potentiates the concerns that a judge
may act in favor of their personal bias rather than truly examining the case. For example, “a judge
cannot consider an LGBT youth’s sexual orientation or gender expression as a harm to be
avoided.”196 Yet, this does not stop the judge in many instances from considering it as such,
whether consciously or unconsciously. Another example is whether a judge with little or no
training in medicine or psychology has the ability to appropriately determine whether a minor is
mature and capable of making their own medical decisions.
197
In today’s legal landscape, courts are unlikely to award residential custody and medical
decision-making authority to the parent supporting the child’s gender identity and expression.
198
The best interests standard can unfortunately be unfairly applied due to judges’ biases. The
existence of bias in the application of the medical model of transgenderism favors traditional
gender norms.
199 The negative stereotypes surrounding parents who promote or allow for gender
nonconformity could explain why, where one parent is supportive and the other is rejecting of a
gender-nonconforming child, the courts favor custody with the rejecting parent.
200 It is of the
utmost importance to present evidence favoring a gender non-conforming child’s felt gender
identity and to debunk evidence rejecting of that identity, as trial courts do have broad discretion
in child custody cases regarding a parent’s authority to make medical decisions to evaluate
evidence, which appellate courts overwhelming defer to in making their subsequent decisions.
VI. PROPOSALS FOR CHANGE
195 Id. at 190; see also Chai R. Feldblum, The Right to Define One’s Own Concept of Existence: What Lawrence Can
Mean for Intersex and Transgender People, 7 GEO. J. GENDER & L. 115, 133 (2006) (“At its core, what the [c]ourt
decided [in Lawrence] was that ‘at the heart of liberty is the right to define one’s own concept of existence . . . .”) Id.
at 123; (“The limitations on the applicability of Lawrence for intersex and transgender people exist only if one believes
that the liberty interest explicated by the Court in Lawrence is solely a negative right against intrusion by the state.”)
Id. at 127; Feldblum asserts that the application of Lawrence results in a positive right) Id. at 128, 129.
196 Hulstein, supra note 68, at 196–97.
197 Andrew Newman, Adolescent Consent to Routine Medical and Surgical Treatment, 22 J. LEGAL MED. 501, 506–
07 (2001) (“Just what standard should the courts and/or statutes adopt in determining the point at which a minor is
mature enough to make his or her own medical decisions? A precise standard has never been articulated.”) Id.
198 Perkiss, supra note 13, at 75–78 (“In addition to probability, scholarship about legal issues surrounding gender-nonconforming individuals suggests that bias and stereotypes . . . play a role in the outcomes of these custody cases.”)
Id. at 77; (“encouraging or even permitting a child to be gender non-conforming reflects negatively upon a parent’s
fitness . . . [and courts] will take extreme measures, like placing children in unsupportive homes, to deter [a child
from growing up transgender].”). Id; see also Grzyb v. Grzyb, 79 Va. Cir. 93 1 (2009) (Case where court awards
custody of a child to the mother, who, despite her intention to not give her child routine vaccinations, played a larger
role in making medical decisions for the child than the father) (“the court has concluded that the medical benefits of
immunization outweigh the medical risks of immunization.”) Id. at 5. Therefore, the question remains where a court
concludes that the benefits of a medical treatment outweigh the risks, should the court be able to deny a minor that
treatment, essentially overriding the best interests of the child in favor of another interest?
199 Perkiss, supra note 13, at 78 (“in applying the medical model of transgenderism, the presence of bias in favor of
traditional gender norms and negative stereotypes about parents who promote gender nonconformity may explain why
courts favor custody with the rejecting parent in cases involving gender-nonconforming children, where one parent is
supportive and the other is rejecting.”).
