A California bill requiring courts to consider parents’ affirmation of their children’s gender identity when considering custody is expected to set off a major legal dispute over religious freedom that could end up in the Supreme Court if Governor Newsom, as expected, signs it into law.

The bill, which would include gender affirmation among the “health, safety, and welfare” considerations in family courts, has drawn national attention. Proponents claim it will prevent child abuse and promote gender acceptance; opponents say it violates religious liberty and could be exploited by abusive spouses.

If the bill is signed, it will likely “ignite a flood” of similar legislation in other states that tend to introduce copycat bills, a Heritage Foundation senior legal fellow, Sarah Parshall Perry, tells the Sun. 

“It is one of the most dystopian of all of the pieces of legislation concerning gender identity and child welfare that I’ve seen so far,” Ms. Perry says. “It’s the closest effort we’ve seen to it being a successful state-sponsored religion so far. It really does not allow dissent on a First Amendment free exercise or a First Amendment free speech basis.”

Ms. Perry says the proposed standards could easily be misused. “I know exactly how easily these particular standards can be manipulated and how much power an individual has if they want to maintain sole custody,” Ms. Perry says. “Especially these no-fault divorces where generally the female spouse needs to get out as quickly as possible and will sign anything to be able to leave safely.”

If signed into law, the issue will “without a question” be taken up by the courts, Ms. Perry says, but to have standing to challenge the law, a parent will first have to be at risk of losing custody because he or she did not “affirm” a child’s gender identity. The bill does not define the extent of affirmation considered acceptable to the courts and could include “anything from cross sex hormones to puberty blockers to even gender modification or gender alteration surgery,” she says.

Because the bill’s gender ideology is incompatible with Christianity and other religions, it violates the U.S. and California constitutions’ free exercise clauses, an Ethics and Public Policy Center attorney, Mary Rice Hasson, tells the Sun. 

“It’s unconstitutional to effectively condition the parent’s custody of a child on the parent’s willingness to raise the child according to the government-endorsed belief in ‘gender identity’ ideology — in contradiction to the parent’s own religious beliefs,” Ms. Hasson says. 

In addition, she says, the bill is too arbitrary to work in practice because it would be difficult for a judge to decide what’s “affirming” enough. “Will the parent who assents to a 13-year-old’s desired (‘gender-affirming’) double mastectomy win custody because the other parent ‘affirms’ the identity but says ‘no’ (or even ‘wait’) to the child’s requested double mastectomy?” 

The bill was introduced by Assemblywoman Lori Wilson, who is the parent of a transgender child. By rejecting a child’s gender identity, she said at a hearing, “you are rejecting that child.” Ms. Wilson tells the Sun she consulted with judges and lawyers and is “very confident that there are no constitutional concerns” with the bill and that plenty of First Amendment-protected expressions can be considered in custody disputes.

“With regards to parents’ rights, a custody dispute only occurs when two parents cannot agree on their own how to decide custody of a child,” Ms. Wilson tells the Sun. “In these types of cases, parents are in a disagreement and have asked the state to settle the dispute.” 

Considering gender affirmation in custody disputes will “empower” transgender youth and their parents, the Equality California communications director, Jorge Reyes Salinas, tells the Sun. Equality California is a co-sponsor of the bill and believes it will help support transgender youth with mental health issues. 

“Research demonstrates that family acceptance of LGBTQ+ youth is a crucial protective factor in combatting depression and can dramatically reduce rates of suicide,” Mr. Salinas says. 

The bill’s effects would extend beyond children in custody disputes and would become a “backdoor” to hunt down disagreeing parents, attorney Erin Friday tells the Sun. As a Democrat who says her daughter was once confused about her gender and is now happy she didn’t transition, Ms. Friday says she fears the bill would force parents to endorse decisions their children might regret later in life.

There is case law saying that it is the “overarching concern of a judge in determining custody or visitation of any child to look at health, safety, and welfare,” Ms. Friday says. “And when you tie gender affirmation to those three words that means those are the most important things that a judge must determine.”