In child custody disputes in California, courts may not deny custody to a gay or lesbian parent solely upon the basis of sexual orientation. The California Family Code requires judges to consider all relevant factors to determine what is in the best interests of the child. This has been the law in California since 1985, when courts decided that one’s sexual orientation alone cannot be a basis for denying custody. Today, it is parental behavior, not sexual orientation that bears upon custody decisions in this state and, presumably, the same law would apply when a couple (married or domestically partnered) dissolves their union and one parent has undergone sex-reassignment surgery or otherwise assumed a new gender identity.

However, some states assume that a parent’s homosexual or bisexual orientation is harmful in and of itself, and therefore those states deny custody rights based on sexual orientation alone – an assumption that extends to gender identity.

For example, an appellate court in Kentucky upheld severing a male-to-female transgender father’s parental rights, and allowed the ex-wife’s new husband (the child’s step-father) to adopt the couple’s child.

This case involved the drastic move to terminate parental rights, not just deny custody or visitation.

The court said it wasn’t terminating the parent’s rights solely because of sex-reassignment surgery. Rather, it found that the parent inflicted “great mental anguish” on the daughter as a result of the surgery.

Courts have high standards to prove abuse. Cases involving “mental anguish” require that a parent verbally abuse, demean, or humiliate a child, inflicting psychological injury. In this case, because the court could find no direct abuse, it found that the father abused the daughter by “choosing” to assume a new gender identity, thus causing the daughter to suffer depression.

Based upon that logic, it would have been better for the parent to remain trapped in a body and commit suicide, leaving the three kids with only one supporting parent.

This is how ignorant some people are about gender identity matters.

And the Kentucky court is not the only offender. In Washington, a father had sex-reassignment surgery and wanted the standard joint physical and legal custody of the kids. But a trial judge assumed the father’s reassignment surgery would be harmful to the kids and awarded “residential” placement of the children with the mother. The father received only visitation rights, which is not the norm unless there is proof of some harm to the children. An appellate court agreed with the trial court’s decision (although one justice dissented and found it unjust to “assume” harm would occur to the children). The case now is headed for the Washington Supreme Court.

These cases should remind most of us of the old days in California when courts assumed homosexuality was a choice and presumed gay parents presented harm to children for custody purposes.

Thankfully, public opinion has since shifted with regard to homosexuality. Fewer and fewer people believe it’s a choice, and, hopefully, attitudes about gender identity will follow suit. After all, being transgender is hardly voluntary. Parting with one’s penis or breasts (and all the historic advantages that come with them) is not a whim.

As for how children are affected by their parents’ sexual orientation or gender identity, this should not be considered by courts but by counselors specializing in the area.

Living as a gay person or assuming a new gender identity should not be bases upon which the state can sever legal parental ties.