Children and Gender Identity Issues -What Happens When My Spouse and I Don’t Agree?

 Posted on July 14, 2020 in Family Law

 shutterstock_740062315.jpgIt’s no secret that gender identity issues are highly controversial, especially with children. Gender identity issues have received increased visibility and recognition in recent years. Popular television shows like I Am Jazz, Transparent, and Pose have shed light on the reality of gender identity struggles that individuals face. The Texas case of James Younger made national headlines when his parents were unable to agree on medical care related to his transgender identity.

Many children struggle with gender identity from an early age, with some studies showing that gender identity formation is possibly as early as between ages 2-5. If your child is struggling with gender identity issues, you may wonder how it will impact your divorce or parentage case, particularly if you and the other parent have different views on the issue. For a little bit of background, you should be familiar with the following gender identities, which include but are not limited to the following:

·         Transgender – a person whose gender identity differs from the sex they were assigned at birth. For example, an individual who is biologically born a female may actually identify primarily as a male.

o   A transgender individual may undergo sexual reassignment surgery to transition into the desired gender. An individual’s transition may involve a process of developing and assuming a gender expression to match the gender that they identify with, which could include social, medical, and legal interventions

·         Cisgender – a person whose gender identity aligns with the sex they were assigned at birth

·         Non-Binary – a term that reflects gender identities that don’t fit within the “box” of male vs. female. Individuals that identify as “non-binary” may feel they are both genders. Other terms that are used for non-binary are: genderqueer, gender fluid, bigender, etc.

·         Intersex – individuals whose chromosomes, hormones, and sexual organs differ from the two expected patterns of either “male” or “female”

Many children desire to begin a medical transition to another gender at a young age. This may include hormonal treatment and medical procedures. In family law cases in Illinois, decision-making responsibility for a child’s health care, education, religion, and extracurricular activities is allocated between the parents. It can either be joint, which means that the parties must consult with each other and agree prior to making a decision regarding the child’s health, education, religion, and extracurricular activities. Conversely, sole decision making allocates all decision-making responsibility to one parent if a Court believes that is in the child’s best interest (usually based on the parents’ complete inability to communicate or agree). So, what happens if you are in the process of a divorce or custody case, your child wants to undergo a medical transition and you and the other parent are not in agreement regarding your child’s transition?

As the Illinois Marriage and Dissolution of Marriage Act stands now, it does not give a minor child the right to decide how they may transition, or to transition at all. The statute is silent on any gender identity issues or how those decisions may be allocated between parents. Presumably, the argument can be made that a child’s desire to transition falls under “health care” decisions. This may make it extra difficult if one parent agrees to a child’s medical transition and the other does not.

If one parent supports the child’s transition and the other does not, a Guardian ad litem (“GAL”) may be appointed for the minor child. A GAL is appointed to represent the child’s best interest. The GAL conducts an investigation by speaking with the child, speaking with the parents, and speaking with collateral witnesses (teachers, counselors, coaches), and gives a recommendation to the court on what he or she believes is in the child’s best interest.

If you are the parent that supports your child’s transition, you may need to educate the GAL on the transition process and refer the GAL to additional resources. Ultimately, the GAL is going to report to the Judge on the issues that are going on in the case. You will want to make sure that the GAL and Judge are well informed on gender identity issues and your child’s transition process.

Gender dysphoria is defined as a condition denoting distress caused by a gender conflict. As it stands right now, “gender dysphoria” is still categorized as a “psychological disorder” under the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders). In addition to the factors needed to establish gender dysphoria in adults, the DSM-5 provides separate criteria for diagnosing gender dysphoria in children:

“At least six of the following and an associated significant distress or impairment in function, lasting at least six months:

  1. A strong desire to be of the other gender or an insistence that one is the other gender
  2. A strong preference for wearing clothes typical of the opposite gender
  3. A strong preference for cross-gender roles in make-believe play or fantasy play
  4. A strong preference for the toys, games or activities stereotypically used or engaged in by the other gender
  5. A strong preference for playmates of the other gender
  6. A strong rejection of toys, games and activities typical of one’s assigned gender
  7. A strong dislike of one’s sexual anatomy
  8. A strong desire for the physical sex characteristics that match one’s experienced gender.”

Many argue that children will “grow out of it” or have “buyer’s remorse” later in life if they choose to transition to another gender. The New York Times reported, “several studies have tracked the persistence of gender dysphoria in children as they grow. For example, Dr. Richard Green’s study of young boys with gender dysphoria in the 1980s found that only one of the 44 boys was gender dysphoric by adolescence or adulthood. And a 2008 study by Madeleine S. C. Wallein, at the VU University Medical Center in the Netherlands, reported that in a group of 77 young people, ages 5 to 12, who all had gender dysphoria at the start of the study, 70 percent of the boys and 36 percent of the girls were no longer gender dysphoric after an average of 10 years’ follow-up.” New York Times, How Changeable is Gender?, Richard A. Friedman (2015). Because of this, a Court may be hesitant to make such a decision on whether or not it is in the child’s best interest to undergo a medical transition. The Court may not want to get involved, and may say that the child can choose to do what they want when they turn 18.

Gender identity issues are very controversial, and it is important to educate yourself on your child’s experience and the struggles they are facing. It is also important to remember that your child is going through major changes in addition to the separation of you and your spouse. That additional stress can weigh heavily on a child dealing with identity issues, so it is extremely important that parents are patient and understanding.

If you have questions about how gender identity issues play into your divorce case, please contact our firm to speak with one of our attorneys.

Resources: Carolyn Wahlskog, LCSW (GAL training speaker on identity issues – from her materials).


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