‘Jurisdiction’ Isn’t ‘Child Custody’
Though if it were, I’d say we should go look for the trans kids in custody
A myth, in the sense of a falsehood, that we commonly hear from the anti-trans movement these days is that the state takes queer kids from their parents and forcibly changes the kids’ genders against the parents’ wishes.
I’ve had people say this to my face. The myth won’t die out. Here’s a recent example of it on the national stage in the US.
Trump and Vance allege that liberal states are stealing trans kids from their parents to make sure the kids get their gender changed
On August 9, Donald Trump falsely said that Kamala Harris’s running mate, Tim Walz, as governor of Minnesota, signed “a law letting the state kidnap children to change their gender.”
Trump’s running mate, JD Vance, repeated Trump’s false claim when he was interviewed shortly afterward. Vance alleged that Walz “supported taking children away from their parents if the parents don’t consent to gender reassignment.” The interviewer, Jonathan Karl, co-anchor of ABC’s This Week, to his credit replied: “That’s crazy, come on.” (Hey, it’s surprisingly easy to challenge transphobia that makes no sense!) That interview aired on August 11.
The provision that Trump and Vance are misrepresenting is Minnesota’s “Trans Refuge Law,” HF 146, which Walz signed over a year ago.
One might ask right about now: What would a trans refuge law do, if not take a child away from their parents to change the child’s gender?
There are a couple ways to approach this question.
First, a gut check:
- If Minnesota had spent the last year taking preteens and teens away from their parents to give them puberty blockers and cross-sex hormones, where has it been placing all these children? Are they all in Minnesota’s foster care system?
- Who signs up to be a foster parent for this situation? Has anyone spoken to one?
- Has anyone—a parent, a journalist—spoken to the children themselves? What do the kids think about the state preventing them from living at home with their parents?
- Do the kids have to switch schools? Where is the school for all the abducted trans kids? Were they sent to the moon?
- Since they’re preteens and teens, why don’t they just walk home if they want to?
- If an abducted kid says they’re not trans anymore, does the state allow them to go home?
- As they turn 18, do any of them sue the state for splitting up their family? Seems they’re leaving money on the table if they’re not doing this.
- How badly does this social project dent the state budget, and what’s the state’s overall purpose here?
OK, so this Trump/Vance story is fake.
Secondly, to probe the truth of this story, we can look at how it forms. The sleight-of-hand happens with just one key word: jurisdiction replaced incorrectly with custody.
Here are those definitions if you need ‘em
Law.com’s Legal Dictionary says jurisdiction is “the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases.”
Jurisdiction means only that a certain court has the authority to hear the case at trial (to “try” it) and to issue a decision (to “rule” on it). It doesn’t describe how the court must reach its decision nor what the outcome must be.
Child custody, meanwhile, is “a court’s determination of which parent, relative or other adult should have physical and/or legal control and responsibility for a minor (child) under 18.” Custody is something someone has after the court decides that they have it. The outcome that the court delivers in a child custody case is which parent has custody of the child.
Let’s apply those definitions
When divorcing or separated parents live in different U.S. states, the Uniform Child Custody Jurisdiction and Enforcement Act applies. That law decides which state’s court system will issue the child custody order, preventing a situation in which two courts issue conflicting orders to the parents.
And so the law has to define the usual conditions for jurisdiction while also anticipating some temporary situations and emergency interventions.
Given that half of U.S. states have banned gender-affirming care for minors and that many trans people and their families feel the need to move, other states have begun to respond with help. Trans refuge states say that, if a parent moves there with a child who is affected by an anti-trans law, they’ll be willing to hear a divorce or custody case involving that child.
No, the state doesn’t take the child to assist their gender transition nor does it automatically give custody to the parent who supports the child’s transition. The state is a “refuge” for the trans child only insofar as it offers both parents a fair hearing in its court system rather than send the case back to a state with anti-trans laws.
So if you’re writing a parenting plan in Louisiana, making a visitation schedule in Alabama, about to go through the court process in South Carolina, etc., and you bring your trans child to live in Minnesota to escape the anti-trans laws in those states, Tim Walz’s law says you can open a child custody case in Minnesota even if you wouldn’t otherwise qualify to do so. Minnesota makes an exception to the normal rules of jurisdiction: Because the child’s gender is an issue in the custody case, a Minnesota court can claim jurisdiction.
Erin Reed explains what it means when a state takes temporary emergency jurisdiction:
This does not equate to taking custody of the child; rather, it allows a judge to hear a case in a custody dispute where one parent resides in a state that criminalizes trans care and the other in a state where such care is legal. Notably, it does not even tell the judge who should be awarded custody, it merely allows a court in Minnesota to hear such a custody dispute.
Importantly, this change, which has been passed by more than 17 other states, comes in response to 24 states enacting bans on gender-affirming care.
Is there any grain of truth to the myth that ‘Parents lose custody of trans kids’?
Parents who divorce get a court order saying who has legal custody (the right to make major decisions about the child, including healthcare) as well as physical custody (meaning the child lives with them). Parents who are separated or were never romantically “together” can also petition the court for a custody decision.
Custody can be shared, especially if the parents work well together. Each U.S. state has its own family laws and court rules about how these decisions are made.
So, yes, depending on what state they’re in and their personal situation, one parent can get sole custody of their child, entailing that the other parent loses custody.
Also, if one or both parents are unsafe for the child (regardless of whether they remain a couple), the state can take the child and place the child with foster parents. An unfit parent’s rights can be terminated, allowing someone else to adopt the child.
An eye-opening detail based on what we know about the world: Some children are trans. They, like any other children, can be the subjects of custody cases.
So if you hear someone say “I lost custody to my child’s other parent” or “The state took my child,” combined with the statement “My child says they’re trans,” you have an idea of how the myth gets started. That third statement sounds as though it could have been the rationale for the first or second statement. But it probably wasn’t.
Family courts and child welfare authorities look at the big picture of a child’s well-being. Issues related to the child being queer or trans might be included in that big picture, but a child’s gender identity wouldn’t be the only reason for taking a child from a fit parent. If you hear about a family case in which the child’s gender supposedly was one issue brought up in court, think about all the other stuff you do not know about that family, and let it go.
Who’s hurting whom?
Again, trans refuge laws exist in blue states because of the severity of anti-trans laws in red states.
It isn’t Democrats who have threatened to kidnap trans kids from parents anxious about the possibility of their transition. It’s the other way around: Republicans have threatened to kidnap trans kids from parents who support their transition.
As Reed points out: Texas Attorney General Ken Paxton threatened to investigate parents for child abuse if they helped their trans child get puberty blockers, hormones, or surgeries, and Florida similarly planned to take trans kids from parents on the same basis.
Idaho not only bans gender-affirming care; it tried to punish parents with life in prison if they took their kids out of state to seek it. Though this law didn’t pass, this climate affects Idaho parents.
Republicans are mad about the 2024 campaign season
In case it isn’t clear yet: Tim Walz supports trans people’s real needs.
Reciprocally, trans people (and those who care about us) support the Democratic ticket for a Kamala Harris presidency and a Tim Walz vice presidency.
Republicans are mad that the Democrats are taking the lead in the polls. Perhaps they should take up their complaint with the trans kids they believe Tim Walz has shipped to the moon.
Speaking of which:
Meanwhile, if you hear anyone repeat this weird story, remember that you only need to ask one question:
Are they solid on the difference between jurisdiction and custody?
