Legal Considerations

When your child is a minor, it is up to you to secure their legal rights. With regards to gender, it is important that you stay abreast of the rapidly changing laws pertaining to gender nonconforming and transgender youth. Certain legal issues are especially pertinent. Those relating to identity and other documents, health insurance, safety at school, and custody problems can all impact your child and family. The legal landscape related to gender and children is continually shifting; frequently, the most supportive laws are found at the state and local level. As such, the laws that will affect you most depend on the where you live and what the issues are.

Many of the legal issues faced by parents with gender nonconforming children can be resolved through education and training. When your child is not being supported it is important to keep in mind that most institutions have little or no experience responding to gender nonconforming kids. Rather than anything malicious, they may simply be unaware of the challenges being faced by your child, nor ways to respond more effectively. Sometimes the easiest and most efficient way to garner the support you seek is to approach the individuals involved directly, armed with the most up-to-date information and laws. This direct approach is especially important because lawyers familiar with transgender law generally do not recommend arguing cases about transgender and gender nonconforming children in courts at the present time.

Below are some of the key areas to consider related to your child’s gender and the law. For more detailed information or to speak with a lawyer about specific issues being faced by your family, refer to the list of helpful websites and organizations listed.

Forms and Documentation

There are many occasions where you will need to identify the name and gender of your child on institutional, government, or organizational documents. For many transgender children, the name and gender listed on state-issued identification documents do not accurately reflect their name and gender. Parents thus face many questions in such circumstances: what name should I use to register my child for school? What if I am asked to provide legal documentation that does not match my child’s gender expression? Can I legally change my child’s name?

While laws vary from state to state, one tremendous resource is the Transgender Law Center. TLC has created TLC's  Guide to Changing California & Federal Identity Documents to  Match Your Gender Identity that provides a wealth of information and resources. Another resource with information from across the US is a website that presents information about identity documents in various places.

While legal name changes give you a great deal of leverage to ensure your child is referred to consistent with their gender identity, many parents not able or ready to take this step have options too. Many have found it helpful to approach the school, program, agency or organization in which their child is involved and simply request that their child be referred to by their preferred name. There are no laws preventing schools and other organizations from calling children by their chosen name. Much of the time all it takes is a little education to help them understand that it is the right thing to do.

Legal Issues in Schools

A variety of federal laws apply to the safety and well being of transgender students. The Equal Protection clause of the 14th Amendment requires that schools respond to the mistreatment of any gender nonconforming student as they would with any form of harassment. The 1st Amendment requires schools to honor a student’s right to free speech, including about issues regarding their gender. Aspects of Title IX and the federal Equal Access Act also can be applied to circumstances involving transgender and gender nonconforming students. See LGBTQ Issues in Schools: An Overview regarding some of these issues. Nine states and the District of Columbia explicitly prohibit harassment and bullying on the basis of gender identity. See Prohibition of Gender Bullying in Schools for more details about these states. Finally, other states that offer protections for sexual orientation frequently include language that also speaks to gender and as such may offer protections as well.

Custody Disputes and Divorce

With few precedents and a generally binary understanding of gender, many in the legal profession have no experience with the issues related to gender and children. If your child lives in two households and you are experiencing disagreement about your child’s gender status and what is best for your child, obtain therapy and/or mediation as your first steps. Try to reach an understanding outside of the courtroom about how to proceed with parenting your child. This may mean having to make compromises, especially if your child is young; though perhaps not ideal, it likely preferable to going to court and facing a potentially negative outcome.

If your family is already in the family courts system due to contested custody or divorce and you are the parent of a gender nonconforming child, you should immediately seek the counsel of an attorney familiar with transgender issues and rights. Organizations like those listed below can provide consultations for lawyers and help them locate local experts on transgender issues. It is also advisable to secure the professional support of doctors and therapists who can speak to the court about transgender children and what they think is in the best interest of your child with regard to gender expression.

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