Imagine a dispute in which two parents are at odds over whether to let their child transition from the gender they were assigned at birth.
Now imagine that happening in a family court case where the parents are separated.
It’s a challenge family judges increasingly face.
Now, a study at Western University is looking to provide guidance for judges by looking at cases in which divorced parents are in conflict over how to address their child’s gender identity questions.
Claire Houston, an assistant professor of law at Western, is heading up the study and says the aim is to provide a framework that will help family law judges make decisions that minimize the harm and discrimination kids face.
“What’s really challenging for judges is they are attempting to make these decisions in the best interest of a child,” said Houston. “What becomes complicated is there isn’t a really a consensus among experts in the gender identity field as to when and how children should transition to a different gender, so that makes things more complicated.”
Houston has seen cases where one parent wants to stop the other from allowing a child to seek medical advice in transitioning.
Judges face competing interests
And what about the child’s rights? How does that factor into a court decision? Houston said sometimes it can become a three-way fight if the parents are in conflict with each other and the child at the same time.
“You can have a lot of competing interests at play,” said Houston. “And because these cases are new, family court judges have limited guidance for resolving these disputes.”
Adding another level of complexity is the desire to resolve these cases in a way that doesn’t discriminate against a child already wrangling with gender identity questions.
“Judges really need to be mindful that this can create a real situation of harm for the children,” she said.
The study will have two phases. The first will look at existing case law to see how judges have dealt with past cases. The second will try to create a framework that outlines best practices for judges.
Houston has seen cases where one parent believes their child is transgender and wants to help them transition with medical advice, while the other is opposed.
It can become more difficult for judges when parents bring in expert witnesses with the intention of supporting their position.
“Because these are relatively new cases, there isn’t a lot of precedent in this area,” she said. “I think it’s important to look at how judges are approaching these cases at the moment and then see if there’s any room for suggestions or recommendations on how these cases might be decided moving forward.”