Restraints on Gender-Affirming Medical Care, Relocating, and Child Custody Legal Issues

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According to recent studies of enacted and pending state legislation and executive orders and policies, 20 states have either put bans or limits on gender-affirming medical care for youths under the age of 18. According to the same report, another seven states are considering such legislation. If passed, that would total more than half of the states in the country restricting gender-affirming medical care for young people (and even for adults).

According to a study done by the UCLA School of Law Williams Institute, as of mid-2022, there are more than 300,000 transgender youths between the ages of 13 and 17 in the U.S. The number is probably higher now. Aside from these 27 states, other states have made efforts — but failed — to limit gender-affirming medical care. Louisiana is an example where a bill to restrict gender-affirming care was recently killed in Committee. 

But, as more and more states restrict gender-affirming medical care, families with transgender children are beginning to relocate their families to states that are protective of transgender medical care. These states include Maryland and the District of Columbia, which have recently passed legislation that protects access to gender-affirming care.

But there are some legal issues to consider when relocating. Some of these families who are fleeing to obtain gender-affirming medical care for their children are involved in divorce proceedings or are subject to existing child custody orders put in place when their divorces are finalized. These situations create immense complications for relocation efforts. Aside from what a given court Order may say, there are restrictions put in place by statutes like the Uniform Child-Custody Jurisdiction and Enforcement Act (“UCCJEA”).

In the remainder of this article, the experienced Maryland/D.C. family law attorneys at The Law Offices of Thomas Stahl provide an overview of current efforts to restrict gender-affirming medical care, examples of families fleeing from states that are restricting gender-affirming medical care, how this impacts child custody and other family law matters, and some thoughts on what should be done before families relocate out-of-state with their transitioning children so as not to jeopardize their custody arrangements and legal status.

What is “gender-affirming medical care?”

To begin, let us be clear on what gender-affirming medical care means. According to the Human Rights Council, gender-affirming care is defined as:

“… medically necessary [medical care] for the well-being of many transgender and non-binary people who experience symptoms of gender dysphoria, or distress that results from having one’s gender identity not match their sex assigned at birth. Gender-affirming care helps transgender and non-binary people live openly and authentically as their true selves.”

According to the same source, medical care is not limited to access to gender-affirmation surgeries, various medications like gender-affirming hormones, and to access to insurance coverage. Instead, gender-affirming care includes many categories of services, including mental health care, medical care, and social services. These broad categories are necessary since, according to the CDC,

“…. transgender youths appear to be at higher risk for violence victimization, substance use, suicide risk, and sexual risk behaviors than are cisgender youth.”

Why gender-affirming medical care matters

Various studies — including a study reported by Fenway Health Organization — have shown that people with gender dysphoria face a higher risk of self-harm and suicidal thoughts. For such persons, gender-affirming social and medical interventions — including hormone therapies and surgeries — substantially reduce the likelihood of those adverse mental health outcomes. The linked study found that:

“… transgender people who had received one or more gender-affirming surgical procedures had a 42% reduction in the odds of experiencing past-month psychological distress, a 35% reduction in the odds of past-year tobacco smoking, and a 44% reduction in the odds of past-year suicidal ideation.”

The study also showed that early treatment is “more effective.” This is because the normal process of puberty may “… lock somebody into having physical features that don’t align with their gender identity.”

Status of state-level efforts to ban gender-affirming medical care

As noted above, 20 states have currently restricted gender-affirming medical care for persons under the age of 18. These restrictions have been done either through legislative efforts or through action by the state’s Executive branch. For example, in Texas, in late February 2022, Governor Greg Abbott issued a directive to the Texas Department of Family and Protective Services (“DFPS”) ordering them to investigate all parents with medically transitioning children in order to determine if they parents could be guilty of child abuse. The Texas DFPS was also ordered to investigate those that worked with transitioning children for failure to report such families to the DFPS.

The various state laws and Executive Orders that restrict gender-affirming medical care vary in severity. The Texas restrictions are among the more extreme, subjecting parents and caregivers to potential investigations for child abuse and liability for failing to report potential abuse. While this article discussed restrictions on gender-affirming medical care for minors, the Human Rights Commission has reported that Oklahoma, Texas, and South Carolina have considered banning care for transgender people up to 26 years of age. Further, as reported by NPR, the recently-imposed emergency rules issued in Missouri restricting transgender-related health care will apply to adults, according to Missouri Attorney General Andrew Bailey. So, as can be seen, this is not entirely a matter of gender-affirming medical care for children.

In any event, other states have less severe or less impactful restrictions. For example, Tennessee’s restrictions — enacted in 2021 — bans the use of hormonal treatment for “prepubertal minors.” This restriction is less impactful than restrictions imposed in other states since prepubertal children do not generally receive hormone blockers and other hormonal treatments.

The problem, of course, is that once restrictions are “on the books,” there are continual efforts to expand those restrictions. Some Tennessee lawmakers, for example, have pushed — and continue to push — for more comprehensive legislation blocking gender-affirming medical care.

Aside from restricting care directly, there are also efforts to restrict health insurance coverage — both private and governmental. According to one study, two states — Texas and Alabama — have banned the use of Medicaid-type insurance for any type of gender-affirming medical care. Other states have restricted government-funded health insurance from being used for some kinds of gender-affirming medical care.

States that are protecting access to gender-affirming medical care

While many states are trying to ban and restrict gender-affirming medical care, there are a number of states doing the opposite. According to a media report, the following states have passed bills designed to protect transgender health care and insurance coverage directly or intended to shield access through enhancing civil rights and other legal protections:

  • Maryland
  • The District of Columbia
  • California
  • Colorado
  • Illinois
  • Minnesota
  • Michigan
  • New Mexico

In addition, legislation has been proposed or is pending in Oregon, Washington State, and Vermont.

California and Minnesota have gone the furthest to protect access to gender-affirming health care as each state has claimed “sanctuary” status. In both states, laws have been passed to protect healthcare providers from being held liable or punished under the laws of other states who have restricted or banned gender-affirming medical care.

Here in Maryland, the legislature has recently enacted The Trans Health Equity Act, which expands Medicaid insurance coverage to almost all gender-affirmation health care, including procedures “for hair alteration, voice modification surgery and therapy, alterations to the abdomen, trunk, face and neck and fertility preservation services.” Under previous policies, Medicaid coverage was available for only certain healthcare services, including mental health services for gender dysphoria, hormone replacement therapies, and gender reassignment surgery.

The District of Columbia enacted legislation in 2022 that protects full access to gender-affirming health care. See D.C. Law 24-307. Essentially, the law protects health care providers from being denied a license, registration, certification, or otherwise punished solely because they provided or facilitated gender-affirming health care either in D.C. or in another state.

Some states are considering very broad protections for young transgender individuals. For example, in Washington state, a bill has been proposed that exempts staff at a youth shelter from having to inform parents that the youth is now at the shelter if the child has run away from home to seek gender-affirming care. 

Transgender Families are Fleeing

Given the massive number of states that are imposing restrictions on gender-affirming medical care, it is not surprising that families with transgender children are fleeing from restrictive states to states that are protecting gender-affirming care. Several examples can be seen in media reports about families living in certain restrictive states where directives were issued against care resulting in families leaving to find other more welcoming states.

One example is that of Carrie Jackson and her family of three who were living in Texas. Jackson was a high-school counselor, and one of her children — Cass, who was 17 at the time — was in the process of transitioning. The process began when Cass was 14. As described by Politico, when Governor Abbott issued his directive, Cass was “a well-adjusted teen” and “thriving” at her school and at her home in a Dallas suburb.

However, after Governor Abbott’s directive, the Jackson family felt the imperative to relocate out of Texas. Within weeks, they packed up and moved to a small town here in Western Maryland to live with Cass’ older sibling (who is/was also transgender). Even though there was a loss of employment and massive dislocation, the Jackson family felt safer in a state where there were no threats of punishment and where healthcare providers could offer their services without fear.

A similar set of circumstances impelled Violet Augustine — a former Dallas writer and teacher — to relocate her family from Texas to California. Augustine began to consider relocation in late 2021 when Texas passed a law banning transgender children from playing on sports teams not aligned with their biological gender. This was devastating to Augustine, whose 6-year-old trans daughter, Isa, was a skilled swimmer. Augustine began to wonder if she needed to move out of Texas. Then, the Dallas Children’s Medical Center announced that it was shutting down its youth gender-affirming care program, and then Governor Abbott signed his directive. Augustine decided it was time to go.

Legal issues with relocating during a divorce and/or if there are child custody Orders

For Jackson and Augustine, the media reports did not indicate that there were any impediments to relocating to a state where gender-affirming care was protected.

However, for other families, there may be legal issues if a divorce is pending or if there is a child custody Order in place that was issued when a divorce was finalized.

The general rule — true in every state — is that a parent cannot remove children from one state to another while a divorce proceeding is pending unless permission is granted from the judge handling the divorce. Further, if there is a post-divorce court Order that awards custody and limits where the parents and child/children can live, a parent cannot remove the child or children to another state unless the court’s Order is modified. Moreover, it is legally difficult to “just relocate” and hope that a family law judge in a new state will modify a court’s Order from the state where the family used to live. 

This is because of the Uniform Child-Custody Jurisdiction and Enforcement Act (“UCCJEA”). The UCCJEA generally requires the courts of one state to honor and uphold the Orders of courts in another state. So, if the court in, say, Texas has issued an Order requiring the parent and child/children to live in Texas, a court in, say, Maryland will not modify that Order unless there is a compelling reason. Of course, obtaining gender-affirming health care is a compelling reason, but it is legally risky to assume that the courts in your new state will modify an existing court Order from another state.

So, what is to be done? First, while you are in the process of packing up and moving, act quickly, consult with an experienced family law attorney in your current state, and begin the process of asking for a modification of the court’s Order. It would be constructive if you could obtain the agreement of your ex-spouse. But, even in the absence of parental agreement, the need to obtain gender-affirming health care would likely be compelling to a family law judge even in a state restricting gender-affirming health care. Presumably, given that health care is essential, the request to modify an existing Order could be handled on an “emergency” basis. Thus, a decision from the judge in your current state could be obtained quickly. Generally, family law judges do not prevent parents and children from relocating to another state. But, violating a court’s order is not a good idea. Thus, it is essential to seek a modification of the court’s order before relocating.

Maryland And D.C. Family Law Attorneys

Contact the seasoned and experienced Maryland and D.C. family law lawyers at The Law Offices of Thomas Stahl for more information. We have the skills and expertise you need. We have proven experience with family law for Maryland and the District of Columbia. Schedule a consultation today or call us at (410) 696-4326 or (202) 964-7280. We have offices in Columbia, MD, and Washington, DC.

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