Hastings Women’s Law Journal


Transgender youth, especially those in families that express rejecting behavior, are at great risk for physical and psychological harms. These harms can be alleviated by families expressing accepting behavior and by support their children's transition. However, when separated parents disagree about whether to support their gender-nonconforming children in their felt genders, especially as more transgender youth come out at earlier ages, disagreements between the parents leads to harm for the child as well as renewed custody challenges. This disagreement was adjudicated in the custody dispute Smith v. Smith. This Article analyzes Smith and applies to cases involving gender-nonconforming children, regardless of a court's finding of gender identity disorder in children since court may erroneously conclude that a child fails to meet the diagnostic criteria for gender identity disorder in children. Mr. Perkiss argues that presenting evidence in favor of supporting a gender-nonconforming child's felt gender identity and debunking evidence rejecting it is of utmost importance and suggests that attorneys should be careful when advocating for the best interest of gendernonconforming children, and should provide expert testimony that includes a clear gender identity disorder diagnosis and recognizes appropriate medical treatment. Additionally, he suggests that advocates should educate trial and appellate court judges to improve the judges' understanding of the issues facing trans gender children, including appropriate treatment recognized by mainstream medical institutions. Finally, this Article suggests that advocates should also show judges that they should give less weight to expert testimony advocating rejection of a child's nonconforming gender identity.