LGBTQ and Transgender issues in Children Law
Family law is evolving all the time to meet the changing needs of our society and to keep pace with scientific progress. Parents need to be aware of gender issues for their child. In the case of separating parents there may be a need to seek legal advice if there is a dispute between parents about the way in which their child is being raised.
Some issues which parents may consider in respect of gender identity are dealt with here.
Gender diverse children and parents – gender goes beyond the binary - some children and adults may not want to express themselves as male or female. They may want to express themselves in terms of gender identity or self identity that is not related to the biological sex assigned to them at birth.
Children and adults may not want to use the binary concept of gender.
Gender dysphoria/ gender identity disorder– when a person feels their identity is at variance with their biological sex assigned to them at birth. A medical condition.
Transgender - relates to gender identity – there are many different ways people identify differently from the biological sex they were assigned at birth.
Cisgender – assigned sex at birth matches your gender identity
Non binary – don’t wholly identify with male or female gender regardless of biological sex. May prefer certain pronoun to others.
Pronouns – may want to use she or he or they/them
Trans man- assigned female at birth now identify as male
Trans woman – assigned male at birth now identify as female
Transition – period when trans or non binary person begins living as gender they identify as.
Gender identity and development service (GIDS) The Tavistock and Portman NHS Foundation Trust
The welfare of the child will always be central to any decisions.
Children (or adults) may be unhappy with their assigned male/female identity. They may prefer to dress in a certain way, change their name, undergo surgery to change their physically assigned biological sex. Children or their parents may want to use certain pronouns to describe themselves – e.g. he she they. A child may see their gender as different from the biological sex assigned to them. Gender identity can develop and evolve.
Children need support to be confident with their gender identity and generally a united approach from parents is key to a positive outcome for a child. Is it a phase? Is the child exploring? Should the child be supported to socially transition only or seek medical intervention. A younger child may need different support from a teenager. A young child will need guidance from parents and may not be able to make decisions for themselves so parents do so. What about if the parents are separated and don’t agree? A teenager may be able to make decisions for themselves (Gillick competence) even if that differs from what the parents may want.
Gender identity for a child can be complex. For parents who are separated, communication is key. There may be medical appointments for children with gender dysphoria. This may need careful management for parents who are separated.
Separated parents may have disputes about whether puberty blockers/hormone therapy should happen for a child. Can one parent consent without the other? The short answer is probably not but get legal advice. Can a child consent themselves if a medical professional decides they are able to decide for themselves? What if a parent does not support the child in that? Can one parent’s wishes over ride their child’s about gender identity/transition? These are all issues which parents may need help and advice with from legal and medical professionals to ensure the right outcome for their child.
There are long term consequences both medical physical and emotional to a child of these major decisions about their gender and identity. Parents need to give careful consideration to achieve the right outcome for their child. All children are individuals and what may be right for one not necessarily for another. If parents are no longer together and don’t agree on what is best for their child legal advice may be required.
Parents need to be careful in recognising child’s rights to choose and not being overbearing or imposing their own beliefs or wishes on the child. A child should be allowed autonomy. It is always child’s choice. Parents must be alert to the risk of emotional harm to their child. Children should be free from pressure from either parent. A child’s needs and their parents capacity to meet those needs both emotional and physical are central to a good outcome for a child.
Parents must be careful not to actively encourage a child to transition if that is not in accordance with medical advice and should work in collaboration with medical professionals.
Where one parent is undergoing transition, issues may arise within the family arrangements as to how a child is to be told. Parents may or may not agree on how this process will be addressed with their child.
Children generally benefit from and need support from both parents to understand the transition of one parent.
Parents generally have a positive duty to promote contact with both parents if that meets the child’s welfare needs.
Gender Recognition certificates can be issued to recognise an acquired gender. Acquired gender may not affect a parents legal status as father or mother of a child.
Parents who are separated need to consider what the school will be told and if they can or cannot act unilaterally in directing the school to use chosen pronouns for their child or identify them as their chosen gender. Legal advice is recommended before parents take any steps with a child’s school in this. The Local Authority (if the school is a Local Authority school) may have their own gender recognition policy for children at the school.