California Dems Pass Bill To Allow Custody Judges To Consider 'Gender Affirmation'

Newsom to decide if 'non-affirming' parents can lose custody of their kids

Gavin Newsom (Elijah Nouvelage/Getty Images)
September 8, 2023

California Democrats this week passed a bill ordering judges to consider gender affirmation as part of a child's health, safety, and welfare when deciding parental custody or visitation rights. The proposals now head to Democratic governor Gavin Newsom's desk.

The bill, which the Assembly approved Friday by a 57-16 vote, orders judges to favor parents who "affirm" their children in the context of custody disputes.

It intersects withanother piece of legislation, which the Senate approved Thursday 40-0, instructs judges to consider parents' affirmation of their child's preferred identity when deciding visitation rights—including if the visits need to be supervised. The bill's original intent was to protect children from parents or guardians already flagged as dangerous.

Newsom would need to sign both bills for the new definition of a child's health, safety, and welfare to be enshrined in state family law.  Neither proposal defines what "affirmation" means, making the judges responsible for deciding if it includes medical transition.

The custody bill, which prompted hundreds of parents from around the state to testify and rally in opposition, showcase California Democrats' commitment to enshrining gender ideology into law, even if it divides families. Supporters insist it is a narrow provision that won't remove custody from parents but only ensure that gender-confused kids are supported during a divorce or separation dispute—an argument that opponents don't buy.

"The floodgates are open," said Erin Friday, a San Francisco attorney and co-lead of Our Duty, a coalition of parents of gender-confused children. "For them to say this is limited to custody is just a lie."

Friday, whose daughter was once gender-confused, said defining "gender affirmation" as part of a child's health, safety, and welfare could open the door to outsiders suing for guardianship of kids should their parents oppose or question their desire to transition to a new identity. They could do so by claiming "probate guardianship"—the process whereby grandparents or even strangers can petition for custody of a child whose parent can't take care of him or her.

Ted Hudacko, a Bay Area man who lost custody of his son to his ex-wife for refusing to support medically transitioning him to a girl, expressed shock that the proposals passed and said Democrats are ignoring evidence of the physical and mental harms of transitioning children.

"I'm disheartened," Hudacko said. "This is just going to bring terrible misery to so many families."

Assemblywoman Lori Wilson (D.), who coauthored the custody bill with Sen. Scott Wiener (D.), said that a child's welfare depends on "family acceptance and social support."

"We are part of that social support," she said before the floor vote on Friday.