Exploring Identity

• Author: Marie-Amélie George
• Pages: 1-67

1

Exploring Identity

MARIE-AMÉLIE GEORGE*

Custody disputes between parents who disagree as to how to address

their child’s gender identity have become the newest battleground in the

country’s culture wars. This Article provides the rst comprehensive

analysis of custody cases involving “gender expansive children”—an

umbrella term this Article uses to refer to transgender and nonbinary

children, as well as children exploring nontraditional gender identities.

By explaining the medical debates over treatment for gender expansive

children and connecting these disputes to related precedent, this Article

makes three distinct contributions.

First, this Article demonstrates that courts are focusing on the wrong

question when adjudicating these cases involving pre-adolescent

children. Judges have been trying to determine which parent is correct

as to the child’s gender identity. However, the science of gender identity

development indicates that only adolescent children’s gender identity is

stable. The adult gender identity of pre-adolescent children, on the other

hand, may be unknown until after a period of exploration. As a result,

courts should be focused on which parent is best suited to help the child

with the exploratory process, rather than its outcome.

* Marie-Amélie George is an associate professor at Wake Forest University School of Law.

In August of 2021, this Article was awarded the 2021 Haub Law Emerging Scholar Award in

Gender & Law, which is presented annually by the Pace University Elisabeth Haub School of

Law in recognition of excellent published legal scholarship related to women, gender, and the

law.

Professor George is grateful for the insightful comments and feedback of Alyse Bertenthal,

Meghan Boone, Michael Curtis, Mark Hall, Andrew Verstein, Jessica Dixon Weaver, and Ron

Wright; the faculties of the University of Georgia and Washington University law schools; and

the participants at the 2020 Family Law Scholars and Teachers Conference, 2021 Richard B.

Atkinson LGBTQ Law & Policy Colloquium, and 2021 Families Unbound Conference. She

also thanks Seth Barry-Hinton, Hayley Degnan, Olivia Doss, and Noah Hock, whose research

assistance made this Article possible, and Lisa Grumet and the New York Law School student

editors of the Family Law Quarterly, who carefully edited the Article.

Published in Family Law Quarterly, Volume 55, Number 1, 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

2 Family Law Quarterly, Volume 55, Number 1, 2021

Second, the Article reveals that courts have recognized children’s

interests in exploring their identities as part of the “best interests of the

child” analysis. By conducting an analysis of more than 90 custody opinions

involving children who explore their sexual orientation, racial identity, and

religious afliation, this Article demonstrates that gender expansive child

custody cases are the latest iteration of a long line of family court precedent

involving judicially recognized fundamental identity characteristics. Just

as judges have endorsed exploration in these analogous situations, so too

should they recognize pre-adolescent children’s need to explore their

gender identity.

Third, this Article provides decisionmakers with the practical

information they need to resolve their cases. The “best interests of the

child” standard is largely discretionary, which provides family courts

with exibility to promote children’s well-being. However, to reframe

their approaches, family courts must have the relevant scientic data

and precedent. Additionally, this Article argues that legislators should

enact statutes that reinforce gender identity exploration, which they are

more likely to do when armed with the scientic evidence and precedent

that this Article provides. As a result, this Article’s analysis of medical

literature and fundamental identity cases is more than a framework for

understanding the issue—it is also part of the solution to the problem.

Introduction

A tweet turned Luna Younger’s personal struggle into a national

controversy. Using 148 characters, Texas Governor Greg Abbott

announced that the Texas Attorney General’s Ofce and the Texas

Department of Family and Protective Services would be investigating the

seven-year-old’s family.1 Prompting his declaration was a jury’s award of

custody to Luna’s mother, Anne Georgulas, a pediatrician who supported

Luna’s gender transition.2 A year before the case made its way into court,

Luna had asked her parents to call her Luna, rather than her (traditionally

1. Greg Abbott (@GregAbbott_TX), TwiTTer (Oct. 23, 2019, 7:58 PM), https://twitter.com/

GregAbbott_TX/status/1187156266449330176.

2. Katelyn Burns, What the Battle Over a 7-Year-Old Trans Girl Could Mean for Families

Nationwide, Vox (Nov. 11, 2019), https://www.vox.com/identities/2019/11/11/20955059/

luna-younger-transgender-child-custody.

Published in Family Law Quarterly, Volume 55, Number 1, 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Exploring Identity 3

male) legal name,3 to reect her4 gender identity.5 That same year, a

therapist diagnosed Luna with gender dysphoria, which is distress from

the mismatch between a person’s assigned sex at birth and their gender

identity.6 As a result, medical professionals recommended that Luna be

referred to as “she” and be allowed to wear the feminine clothing and keep

the long hair that she preferred.7 Luna’s father, Jeffrey Younger, registered

his objection to Luna’s gender identity by shaving her head, even as he

allowed Luna’s twin brother to maintain his locks.8 Georgulas petitioned

for an order prohibiting her ex-husband from “engaging in non-afrming

behavior and/or taking Luna outside the home as [her birth name], or

allowing others to do so.”9 Jeffrey Younger counterclaimed for sole legal

custody.10

Luna’s case quickly became a symbol for broader debates over

transgender rights and identity. Senator Ted Cruz and Donald Trump Jr.

jumped into the fray, with the former describing Luna “as a pawn in a left-

wing political agenda,” and the latter characterizing the situation as “child

abuse.”11 As a hashtag referencing Luna’s birth name trended, legislators

in six states introduced bills that would limit medical professionals’ ability

to provide hormone treatments to gender expansive children, eliminate

a court’s ability to consider a parent’s stance on gender transition in

adjudicating the best interests of the child, or do both.12 The laws’

3. Although Luna’s legal name is a matter of public record and became widely known

through trending tweets, this Article intentionally refrains from using it because of the damage

that the use of birth names does to trans and nonbinary people. See, e.g., Lauren Freeman, Micro

Interactions, Macro Harms: Some Thoughts on Improving Health Care for Transgender and

Gender Nonbinary Folks, 11 inT’l J. FeminisT approaches BioeThics 157, 160 (2018).

4. This Article uses the gender pronouns with which a child identies. When a child’s

preferred pronouns are unknown, the Article uses the gender-neutral pronouns “they,” “them,”

and “theirs.”

5. Burns, supra note 2.

6. Id.; see also am. psychiaTric ass’n, DiagnosTic anD sTaTisTical manual oF menTal

DisorDers: Dsm-5 452 (2013).

7. Burns, supra note 2.

8. Id.

9. First Amended Petition to Modify the Parent-Child Relationship at 3, In re JA.D.Y. and

JU.D.Y., DF-15-09887-S (Tex. Dist. Ct. July 2, 2018) (on le with author).

10. Burns, supra note 2.

11. Ted Cruz (@SenTedCruz), TwiTTer (Oct. 23, 2019, 8:01 PM), https://twitter.com/

SenTedCruz/status/1187157175250149376; Donald Trump Jr. (@DonaldJTrumpJr), TwiTTer

(Oct. 24, 2019, 7:44 AM), https://twitter.com/donaldjtrumpjr/status/1187334051386089472.

12. H.B. 303, 2020 Leg., Reg. Sess. (Ala. 2020); H.B. 1365, 2020 Leg., Reg. Sess. (Fla.

2020); GA H.B. 1060, 2019–2020 Leg., Reg. Sess. (Ga. 2020); H.B. 321, 2020 Leg., Reg. Sess.

(Ky. 2020); H.B. 1-57, 2020 Leg., Reg. Sess. (S.D. 2020); TX H.B. 1910, 86th Leg., Reg. Sess.

(Tex. 2019). Ohio had introduced a similar bill the previous year. H.B. 658, 132d Leg., Reg.

Sess. (Ohio 2018).

Published in Family Law Quarterly, Volume 55, Number 1, 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.