Oklahoma Bar Journal
Addressing Custody With Gender-Expansive Children
By Kensey Wright
As the 2SLGBTQIA+ (two-spirit, lesbian, gay, bisexual, transgender, queer, intersex, asexual plus other self-identification classifications) community becomes more widely accepted, we are seeing an increase in the comfort level of children expressing a desire to explore their place on the gender spectrum. As a result, our court system is being hurled head-on in addressing custody issues involving gender-expansive children. Many members of the bar and bench have little to no experience in serving clients with gender-expansive children. Many may be unaware of what the phrase “gender-expansive” even means – which will be explained in this article. As a result, courts often ask the wrong question, and attorneys address the wrong issues in addressing custody with these children. We should not be first questioning whether or not a child’s desire is necessarily “real” but rather examining the psychology of gender expression and fostering a custodial relationship for the parent that best follows the science. Given the current legislative treatment of gender-expansive children in Oklahoma, it is more important than ever for attorneys and judges to have a true understanding of the importance of asking the correct question.
It is important for this topic to understand that there is a fundamental difference between a person’s sex and a person’s gender. While they are often confused and freely interchanged in society, they are not the same.1 A person’s sex is the biological makeup of a person. Simply put, most people are born with two X chromosomes or one X and one Y chromosome. While there are obviously biological differences that can occur, we are not focusing on those in this limited writing space. A person’s gender, on the other hand, is determined by societal expectations.2 This is why gender is considered a spectrum. Gender norms, and even the expansiveness of gender, differ around the world.3 Someone who is deemed to not fall within a society’s designated gender roles is considered “gender-expansive.” “Gender-expansive” is an all-inclusive umbrella term that refers to someone who possesses a gender identity or expresses their gender in a way that is beyond or different from societal expectations.4
It is important to know the meaning of some terms that fall under that “umbrella,” many of which are becoming more commonplace but still not necessarily understood:
- Cisgender: a person who identifies as the gender that aligns with their sex assigned at birth.5
- Transgender: a person whose gender identity does not align with their sex assigned at birth.6
- Transition or Transitioning: the process one goes through to affirm their identity – socially, legally and/or medically.7
- Socially transitioning: publicly adopting desired pronouns, dress,
- Retransition: returning to the gender associated with a person’s sex assigned at
- Nonbinary or gender nonconforming: a person who does not exclusively identify with a specific gender.8
- Gender-fluidity or fluid: “a person who does not consistently adhere to one fixed gender and may move among genders.”9
- Misgendering: the use of pronouns or other words (e.g., sir or ma’am) that do not align with a person’s expressed gender.10 Misgendering can occur with or without malice.
- Dead name: a person’s former name that they have chosen to leave behind.11
People often stress about using incorrect pronouns or complain about the “burdensome”
nature that comes with using correct pronouns. We address later in this article the traumatic effects of not using a person’s preferred pronouns and name, especially with children and adolescents. Respecting a person’s identity is as simple as using their preferred pronouns: he/him, she/her, they/them, etc. Getting into the habit of introducing yourself with your pronouns makes it significantly easier for people to tell you theirs. For example: “Hi. I’m Kensey, and my pronouns are she/her. Are you comfortable telling me your preferred pronouns?”
GENDER IDENTITY AND AGE
A significant concern that continues to arise and to be misunderstood is when an expression of gender identity is “normal” for a child, particularly when that expression does not align with a child’s biological sex. A child’s gender stability varies with their pubescent age. There are primarily two periods of identity exploration: prepubescent and pubescent/adolescent.
Prior to a child reaching puberty, their gender identity is not yet consistent. Children first begin to express gender identity at a very young age. This is seen in their manner of dress, the toys they choose, etc. From around ages 4 to 7, a child’s gender identity becomes more stable in that they are more likely to maintain a consistent gender across different situations. This is not necessarily an indication that a child’s gender identity at this age will remain the same as they reach pubescence, but research suggests that the more adamant a child is about their expressed gender being different than their sex assigned at birth, the more likely a child is to be transgender or gender nonconforming in adolescence.12 In fact, studies suggest that children who begin socially transitioning prior to adolescence actually have a low retransition rate of just 7%.13
Adolescence is typically defined as ages 10 to 19.14 Once a child enters adolescence, there is a much stronger likelihood that their gender will remain stable and consistent.15 Studies suggest that children who are gender-expansive into adolescence, regardless of their identity at a younger age, will largely maintain that asserted gender into adulthood.16
Approaches to a Gender-Expansive Child
There are three primary approaches to treating a gender-expansive child: the affirmative approach, the reparative approach and the Dutch Protocol. The approach that should be taken in treating a gender-expansive child is largely determined by the child’s age. There is some debate amongst health care professionals and scholars as to the best approach with a prepubescent child, as discussed below. Adolescent children are treated differently based on the more stable nature of gender identity.
The affirmative approach. The affirmative approach permits a child to explore their gender identity and to receive gender-affirming care.17 The argument in favor of this approach for prepubescent children is largely based on documented data of the effects of a reparative approach on adolescents, which is addressed later.18 This approach is largely accepted as the only appropriate approach to treating gender-expansive adolescents.19
Gender-affirming care includes allowing a child to adopt their choice of dress, pronouns, name, etc. Once a child reaches adolescence, this can also include certain hormone treatment.20 Hormonal therapy is not recommended for children who have not begun puberty.21 Certain children who have begun puberty may be eligible to receive hormone-suppressant therapy to delay further progression into full puberty when it is medically necessary.22 Hormonal suppressant therapy is fully reversible and is intended to allow a child more time to explore their identity more fully before receiving hormonal therapy, which can have some lasting effects, such as a permanent deepening of the voice.23 Neither hormone-suppressant therapy nor hormonal therapy is administered without the supervision of a health care professional and regular check-ins with the adolescent and involvement of the parent or guardian, except in rare circumstances where it is deemed harmful to the adolescent.24 The official recommendation is that the health care provider exploring hormonal suppressant therapy or hormonal therapy also seek advice and opinions from other mental health and medical professionals before any such gender-affirming care is initiated.25
The reparative approach. The reparative approach is focused on encouraging or requiring a child to embrace the gender that aligns with their sex assigned at birth.26 This does not necessarily have to be an aggressive or violent response. If a young boy wants to play with a doll and is met with a “boys don’t play with dolls” response, this is an example of a reparative approach. There are situations where the approach is extreme, such as physically harming a child for expressing a gender-expansive identity. Scholars suggest that, at least in regard to prepubescent children, the intent of this approach is to limit the potential negative psychological effects of potentially multiple social retransitions.27 Those in favor of this approach argue that permitting transition will cause more harm to the child, as their gender identity is more fluid and could cause social repercussions for the child if they are allowed to socially transition.28 The World Professional Association of Transgender Health (WPATH), which sets the standards for treating gender-expansive people, however, has gone so far as to wholly denounce denying gender-affirming care as unethical for adolescent children due to the alarming rates of suicide and mental health crises among children faced with this approach.29
The watchful waiting approach (aka the Dutch Protocol). This approach is neither wholly affirmative nor wholly reparative; children are not permitted to entirely socially transition until they have reached puberty. A child would not be allowed to change their gender or name but would be permitted to explore and express other elements of gender identity, such as a specific way of dress.30 The only long-term studies evaluating gender-expansive youth are actually based on this model, wherein participants were considered to be eligible for puberty blockers (drugs that delay a child progressing further in puberty) at age 12, gender-affirming hormone treatment at age 16 and surgical intervention at age 18.31
The Best Interest Analysis
Oklahoma judges are tasked with making custody and visitation decisions based on a “best interest of the child” standard.32 Courts have historically shifted the “best interests of the child” framework and analysis to adapt to current data and scientific trends. For example, moving away from the “Tender Years Doctrine” and no longer viewing sexual orientation as grounds for a loss of custody.33
Custodial determination involving gender-expansive children should similarly evolve based on the shifting societal norms and scientific evidence. While Oklahoma does not have significant case law on children exploring any part of their identity (race, religion, sexual orientation, etc.), cases around the country suggest that courts are making custody decisions in favor of the parent that promotes exploration into individual identity (race) and, at a minimum, tolerates it (sexual orientation), so long as such exploration does not cause harm to the minor child.34 In many of these cases, the courts largely evaluate the effect of a parent’s actions on the well-being of the minor child to make a best interests determination. This application fits squarely within Oklahoma’s established framework of requiring a nexus between parental behavior and its effect on a child, allowing our courts to follow trends around the country that pertain to a child exploring their identity without substantially changing prior case law.
The “best interest of the child” standard is largely discretionary, so courts may have flexibility in addressing individual families and children. This flexibility is especially important with this given topic. When addressing issues involving gender-expansive children, the first step is to ensure the court is addressing the right question in a “best interests” analysis. Courts often want to address the legitimacy of a child’s expressed gender preference. This is the wrong question to be addressed. While it should not be ignored if there is legitimate evidence to suggest a child is being forced to state this preference, it is not the first question that should be asked. Instead, the court should focus its inquiries on which parent is most likely to conform to the current scientific and psychological data in supporting their child.
In representing a parent with a gender-expansive child, it is vital that we, as attorneys, educate our judges on the subject in each case. Testimony of treating physicians will be absolutely crucial as well as a presentation of data, including the WPATH 8 standards – the current recommended standards for health professionals treating gender-expansive people. One should also consider the appointment of an educated guardian ad litem. Regardless of a parent’s approach, it is important to know that, in evaluating the treatment of a gender-expansive child, it is recommended for health care providers to speak to the parents of a gender-expansive child, as well as third parties, to get all viewpoints.35 This should help to alleviate any concerns of a parent that they are not being heard in their feelings regarding the subject as well as alleviate any concern by the court that a child’s course of treatment is being driven solely by one parent.
First, a child’s physical age and pubertal status must be determined. In any situation, the child should be enrolled with a health care provider that is certified in transgender health if they have not already been seeing one. It is vital for a court to have the expertise of such a provider to weigh in on the appropriate treatment for any child, particularly a preadolescent child. Next, each parent’s response should be evaluated. As noted above, some experts suggest that a reparative approach may not be as damaging to preadolescent children; however, support for an affirming approach or the Dutch Protocol is simply stronger and thus recommended by WPATH.36 A fully affirmative approach is recommended with adolescent children.37 Given the data on the emotional well-being of gender-expansive youth, particularly adolescents, courts should be extremely cautious with a parent who adopts a reparative approach with a child because this placement can literally mean the difference between life and death for some of these children.
To date, there is no case law on this issue in the state of Oklahoma, but we are undoubtedly fast approaching that point in time. An analysis of cases around the country suggests that custody of adolescent children should be awarded to the affirming parent.38 Adolescents who identify as gender-expansive have a significant increase in the likelihood of suffering serious mental health disorders and risks. This is not because of how they identify but because of how they are treated in their communities and families.39
The Trevor Project, an organization that seeks to eliminate suicide among 2SLGBTQIA+ youth through education and support, conducted a study in 2021 that resulted in 42% of 2SLGBTQIA+ youth reporting they had seriously contemplated suicide, with approximately half of those individuals also reporting as being gender-expansive.40
Tulsa Reaches Out, an advisory council within the Tulsa Community Foundation, together with other organizations, conducted a survey in 2019 among 800 children and adults who identified as sex and gender minorities in the Tulsa area in order to evaluate community health and needs.41 The results revealed that children under 18 in the Tulsa area had attempted suicide at a rate three times higher than the national average.42 This data cannot be ignored in a best-interests analysis.
Presently, 21 states have bans on gender-affirming care for youth in the books, including Oklahoma. It goes without saying that this will cause additional issues that courts will have to address in these custody matters. Therefore, when representing families with gender-expansive children, education is key – education for yourself, your client and the court. The biggest hurdle for gender-expansive children is a lack of understanding about the process and the science behind it. With the proper education, we as attorneys can make a difference in the lives of these children and families.
ABOUT THE AUTHOR
Kensey Wright is of counsel at Doerner Saunders Daniel & Anderson LLP in Tulsa, where she resides with her husband and two children. She graduated from the TU College of Law in 2013. Ms. Wright focuses her practice on family law with an emphasis in representing queer families.
1 “Gender.” Merriam-Webster.com Dictionary, Merriam-Webster, www.merriam- webster.com/dictionary/gender. (last accessed June 6, 2023).
3 “A Map of Gender-Diverse Cultures,” Public Broadcasting System, www.pbs.org/independentlens/content/two-spirits_map-html/.
4 “LGBTI Safezone Terminology,” supra.
12 Am. Psych. Ass'n, “Guidelines for Psychological Practice with Transgender and Gender Nonconforming People,” 70 Am. Psych. 841- 842 (2015).
13 “Gender Identity 5 Years After Social Transition,” supra.
15 George, Marie-Amelie, “Exploring Identity,” 55 Fam. L.Q. 1, 20 (2021), citing Susan M. Sawyer et al., “The Age of Adolescence,” 2 Lancet Child & Adolescent Health 223 (2018).
16 “Guidelines for Psychological Practice,” supra. at 842.
17 “Exploring Identity,” supra. at 22.
20 WPATH 8, supra. at S110.
23 Id. at S112.
24 Id. at S112 and S115.
25 Id. at S48.
26 “Guidelines for Psychological Practice,” supra. at 842.
28 Olson, Kristina R., PhD., et al., “Gender Identity 5 Years After Social Transition,” Pediatrics, American Academy of Pediatrics, vol. 150, number 2 (August 2022).
29 World Pro. Ass'n for Transgender Health (WPATH), Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, S47-S49.
30 “Exploring Identity,” supra. at 22.
31 WPATH 8, supra. at S65.
32 43 O.S. §109.
33 Spector, Robert G., Oklahoma Family Law-The Handbook, 2022-2023, 391; Oklahoma Family Law, supra. at 439; Fox v. Fox, 1995 OK 87, 904 P.2d 66.
34 “Exploring Identity,” supra. at 43.
35 Id. at S48 and S76.
36 WPATH 8, supra. at S76.
37 WPATH 8, supra. at S48.
38 “Exploring Identity,” supra. at 26-27; internal citations omitted.
39 The Trevor Project, www.thetrevorproject.org.
40 The Trevor Project National Survey on LGBTQ Mental Health 2021, www.thetrevorproject.org/survey-2021.
41 Nay, E.D.E. The Prism Project: Tulsa’s Sexual and Gender Minority Needs Report, 2019. Tulsa, OK: Tulsa Reaches Out, Hope Research Center. ou.edu/tulsa-lgbtq.
42 The Prism Project, supra. at 19.
43 Peter Poe, et. al. v. Gentner Drummond, et. al., USNDOK Case No. 23-CV-00177-JFH-SH.
Originally published in the Oklahoma Bar Journal – OBJ 95 Vol 9 (November 2023)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.