Hastings Journal on Gender and the Law


Transgender youth, especially those in families that express rejecting behavior, are at great risk for physical and psychological harms that can be alleviated by the support of family. 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. In the Article, the author suggests that advocates should educate trial and appellate court judges to improve the judges' understanding of the issues facing transgender children, including appropriate treatment recognized by mainstream medical institutions.