The Supreme Court Must Resolve the Transgender Health-Care Battle

A brewing fight between California and Florida over transgender children could eventually end up at the US Supreme Court. The two states have staked out opposing positions on transgender rights, and the question of what to do when divorcing parents disagree over gender-affirming treatment—such as hormone therapy and surgery—for their children.

California and other blue states affirm parents’ rights to let their children seek this medical care, while Florida and other red states look to limit access to these treatments.

Countless cases are percolating in courtrooms nationwide. I recently consulted with an attorney working on a case involving a Florida father trying to stop a child from returning to Massachusetts, where the mother approved use of puberty blockers.

Legal Battle

There are signs the fight could escalate. Former President Donald Trump said in a rally in September that if he’s re-elected, he would federally prosecute “those involved in California’s depraved new laws that strip parents of parental rights.”

This brewing fight threatens to upend a 50-year consensus on how to handle divorce and child custody fights that cross state lines.

California’s Senate Bill 107, signed into law last year, established the state as a safe haven for divorcing parents of transgender children, allowing them to ask a California court to claim emergency jurisdiction over the custody fight.

Meantime, Florida’s Senate Bill 254, signed into law in May, says a parent can ask that state’s courts for emergency jurisdiction in a custody case to prevent a child living in another state from getting gender-affirming care.

At a basic level, this care, which is supported by the American Medical Association, consists of treatments such as puberty blockers, which prevent a child from developing things like facial hair or breasts while they’re being taken, or hormone treatments, which encourage their development.

Gender-affirming treatment for adults includes hormone therapy, reducing Adam’s apples, breast augmentation, and surgery on genitalia. Despite rhetoric around these laws, current medical guidelines don’t recommend surgery for people under 18.

Instead, children experiencing gender dysphoria typically take puberty blockers, which delay development of things like facial hair or breasts while children sort out their gender identity with their families.

Transgender children, their parents, and children’s doctors have long discussed the appropriate level of care, but this will increasingly depend on where children live. These two new laws and others likely on the way are creating another set of conflicts that won’t be easily resolved.

Imagine a divorcing Florida couple going through a custody fight. One parent wants to stop the child from getting treatment. The other parent takes the child to California and petitions a court for full custody of the child, while the other parent heads to a Florida court.

Jurisdictional Disputes

Under these laws, both judges will have a claim to jurisdiction. That’s not even a fight over whether the child should be allowed to get treatment—it’s a fight over which judge gets to decide the question.

It’s like a baseball game where the Dodgers show up at the stadium in Los Angeles while the Marlins players are still in Miami, and both insist they are the home team that week. These jurisdictional disputes used to be quite common in family law, especially when states had dramatically varying laws about divorce. The results were disastrous.

In the 1970s, a parent who thought another state had laws that might be more favorable to their side in a custody dispute would routinely just take the kids there—often in the dead of night—and ask a court to determine it had jurisdiction.

Facing a wave of parental abductions, states worked together to create a uniform set of laws that allow judges to follow the same rulebook when deciding who has jurisdiction. First passed by most states in 1981 and revised in 1997, the Uniform Child Custody Jurisdiction and Enforcement Act is now law in every state except Massachusetts.

This agreement among states has been a massive success, resolving disputes between courts, dramatically reducing parental kidnapping, and allowing states to maintain their traditional power over issues of family law.

This new fight has upended all that. Both California and Florida’s new laws have undermined the uniform legislation that has worked well for more than 40 years, creating a conflict that the Supreme Court will have to address.

It’s not clear if the justices will resolve the issue, either. The court’s 6-3 conservative majority has been eager to weigh in on hot-button social issues in some recent cases, which could lead to a decision that further undermines the UCCJEA.

Until then, the dispute isn’t likely to be isolated to California and Florida. Blue-state lawmakers are already discussing similar safe haven laws, while red states seek to copy the model set by Florida. Pandora’s box is now open, and even the Supreme Court may not be able to close it.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Alphonse Provinziano is a divorce and family law attorney based in Los Angeles and founder and principal of Provinziano & Associates.

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