Social media users are circulating a headline claiming that a bill - signed into law by California Governor Gavin Newsom on Thursday -- will give courts in that state new authority to take away parental custody of minors who have come from other states to seek gender-affirming healthcare in California.
Examples of online claims about the bill, known as SB 107 (Senate Bill 107), can be found (here) and (here) and (here). Some posts include an image of the headline, “California legislature passes bill giving courts authority to take custody from parents of minors seeking ‘Transgender’ treatments.” The headline is likely taken from an online article dated Sept. 13, 2022 (here).
While SB 107 (here), does not grant California courts any new powers to take custody of minors away from parents, according to legal analysts, it was designed in part to prevent California courts from participating in another state’s attempt to take custody away from parents for providing gender-affirming care to their child.
WHAT IS THE CONTEXT?
A Texas directive ordering the state’s Department of Family and Protective Services (DFFS) to “investigate” parents who provide gender-affirming care to their children would allow the DFFS to remove the child from its parents’ custody on the grounds that the medical care is a form of abuse, according to the American Civil Liberties Union (here), which has challenged the Texas policy. In a case involving the ACLU, a Texas court blocked the state from implementing the directive on Sept. 16.
Elsewhere, an Alabama law that took effect in May would subject parents and healthcare providers to up to 10 years in prison for providing gender-affirming care to minors (here).
The California legislation has been widely described by supporters and opponents as turning the state into a “sanctuary” and “refuge” for minors and their parents who face legal penalties in other states for providing the child gender-affirming healthcare (here), (here), (here), (here).
Critics emphasizing the rights of a parent or guardian who is opposed to the treatment argue that SB 107 creates a legal haven for minors alone, or with a willing parent, to seek such care without consent from the unwilling parent (here) (here).
The bill’s author, California State Senator Scott Wiener, has stated publicly that the goal of the law is to prevent California courts and law enforcement from participating in the enforcement of other states’ laws against medical care that is legal in California. It’s also designed to protect California healthcare providers from being forced to divulge medical records to attorneys and courts in other states for civil cases arising from the other states’ bans on such care (here) and (here).
WHAT DOES THE BILL ADD?
A spokesperson in Senator Wiener’s office told Reuters Fact Check in an email, “SB 107 doesn’t give courts (new) authority to take custody from parents of minors seeking gender-affirming care. All the bill does is provide guidance to courts about hearing cases where they already are allowed to do so under California law.”
One part of the legislation is devoted to clarifying California courts’ jurisdiction – the authority to hear and decide – in family law cases, including custody claims, that involve people and agencies in multiple states and “arising as a result of a minor receiving gender-affirming care” in California, according to an Aug. 29 legal analysis of the bill’s contents by the state’s Senate Judiciary Committee (here).
Regarding custody, the bill “revises” existing rules for handling family law matters between states, known as the “Uniform Child Custody Jurisdiction and Enforcement Act,” to provide California courts “jurisdictional guidance,” according to the analysis.
When minors are in the state for gender-affirming care they cannot receive elsewhere, the bill says that the situation falls into an existing category of “emergencies” that give California courts clear jurisdiction: “a court of this state has temporary emergency jurisdiction over a child if the child is present in the state because the child has been unable to obtain gender-affirming health care or gender-affirming mental health care.”
“This is not a new or debatable power,” Asaf Orr, a senior staff attorney and Transgender Youth Project Director at the National Center for Lesbian Rights, based in San Francisco, told Reuters Fact Check. “State courts around the country have the authority to consider whether to retain jurisdiction over a custody matter involving a child who recently came into the state. This typically occurs in instances of domestic violence or other crisis situations. This law simply clarifies that courts should retain jurisdiction in situations where a parent brings their child to California so that they can obtain medical treatment for gender dysphoria from a state that has banned or restricted access to that care.”
The bill also instructs a California court not to “enforce or apply” out-of-state laws regarding gender-affirming care when it decides a case involving a child in California to receive care that is legal in California.
This guidance is significant, but also not new, Orr explained in an email. “In situations where the laws of two different states may apply, there are common law rules dictating how courts should determine which state’s law to apply. One consideration is whether the law of the foreign jurisdiction conflicts with the public policy of the state that has jurisdiction. This [guidance] ensures that California courts do not apply the law of a state that prohibits access to medical treatment for transgender youth when deciding a custody matter involving that issue.”
The Senate Judiciary Committee analysis notes that courts always have discretion to decide that a different forum is more appropriate for a particular case, and the new law would not change that.
SB 107 does encourage courts to consider the consequences of declining jurisdiction when the issues in the case include gender-affirming care provided to a minor: “…notwithstanding general considerations to determine whether a court in this state is an inconvenient forum, a court shall not, in a case where the provision of gender-affirming health care or gender-affirming mental health care to the child is at issue, determine that it is an inconvenient forum where the law or policy of the other state that may take jurisdiction limits the ability of a parent to obtain gender-affirming health care or gender-affirming mental health care for their child.”
WHAT IS THE IMPORTANCE OF ‘ARISING’?
The fact that the bill’s guidance to courts is specific to cases “arising as a result of a minor receiving gender-affirming care” in California should prevent the law from being misused by parents who are battling each other or out-of-state agencies over custody on other grounds, according to Orr.
“This bill does not create a broad right for parents in a custody dispute to come to California and have a California court decide that custody dispute,” he said.
“In a situation where a parent brings their transgender child to California for medical treatment for their child’s gender dysphoria and does not have the consent of the child’s other legal parent(s)/guardian(s), the courts in California would have jurisdiction to decide this custody dispute,” Orr explained. “That means that the parent seeking to consent to treatment would have to demonstrate that accessing treatment is in the child’s best interests and the other parent(s)/guardian(s) would have an opportunity to present evidence to the contrary. This is not something new for family court; judges in family court regularly resolve disputes between parents regarding consent to medical treatment, such as consent for psychotropic medications.”
DOES THE BILL TELL JUDGES WHAT TO DECIDE?
Nothing in the bill’s language gives courts guidance about what to decide in individual cases, according to the Senate Judiciary Committee analysis of SB 107.
“In making their determination, judges will consider the standard of care for the treatment of gender dysphoria, but more importantly, they will weigh evidence about the child and make an informed and individualized decision about whether the proposed treatment is in the child’s best interests,” Orr said.
When gender-affirming care for a minor in California is the basis of a custody dispute, SB 107 tells California courts that they have clear jurisdiction to hear and decide the case. The new law tells California courts that they should not apply another state’s laws against gender-affirming care when deciding the case. But courts should consider out-of-state laws when deciding whether to give up jurisdiction if it would lead to parents being penalized for providing medical care to their child in California that is legal in California.
This article was produced by the Reuters Fact Check team. Read more about our fact-checking work here .
Our Standards: The Thomson Reuters Trust Principles.