While this custody battle has attracted special attention from politicians opposed to transgender rights, it is in fact part of a growing number of custody disputes between parents who disagree about their child’s gender identity. This past January, a study published in the Family Court Review discussed 10 cases in which mothers who affirmed the identity of their transgender or gender-nonconforming child encountered custody challenges from ex-spouses. In all 10 cases, the women’s ex-partners accused them of causing their child’s gender identity, just as Younger did to Georgulas. One woman’s ex-husband even claimed she had pushed their child to become transgender “because being the parent of a trans child is trendy.” In four of these cases, the gender-affirming mothers lost legal and/or physical custody of their child.
The idea that supporting or encouraging a child’s gender nonconformity is the mark of an “unfit” parent has roots in gay and lesbian parents’ custody battles during the 1970s and 1980s. As LGBTQ parents struggled to maintain custody of children after coming out, they employed experts whose arguments were designed to assuage hostile judges, but which unwittingly created a standard that today puts parents like Georgulas at risk of losing custody of their children.
In the midst of the gay liberation and lesbian feminist movements, many married men and women came out as gay or lesbian. In the process of divorce, these parents often battled with their ex-spouses for custody of their children, and they faced significant discrimination from family court judges who assumed that living with a gay or lesbian parent was not in the “best interests” of the child.
Homophobic judges and lawyers argued that gay and lesbian parents would sexually abuse their children, expose them to social discrimination and raise them in ways that challenged conventional gender and sexual norms. In short, they feared that the children of gay or lesbian parents would fail to become masculine boys and feminine girls. Faced with these arguments, countless gay and lesbian parents lost custody and visitation rights.
The tide began to turn when gay and lesbian parents called on psychiatric experts to testify in their defense, including Richard Green, one of a group of psychiatrists who fought to remove homosexuality from the American Psychiatric Association’s list of mental illnesses in 1973. Green later linked his efforts to depathologize homosexuality to the rights of gay and lesbian parents.
In 1974, Green testified in a custody battle between Sarah Hall and her ex-husband in central Ohio. Green skillfully deflected hostile questions from the judge in Hall v. Hall regarding lesbians’ sexual practices. He insisted that both Hall and her female partner were stable and well-adjusted people. Under cross-examination, he quite radically agreed that the Halls’ daughter would be “better off” living with her mother in a lesbian household rather than her father and his new wife. In large part because of his testimony, Sarah Hall won custody of her 5-year-old daughter.
While this case marked a gain for LGBTQ parents in some respects, Green’s testimony set a problematic precedent because he based his arguments about Hall’s fitness on the extent to which her daughter conformed to conventional ideas of femininity and heterosexuality. Based on the clothing and toys they provided, Green noted that Hall and her partner “adhere[d] to rather traditional stereotype ways of what is considered to be appropriately feminine and appropriately masculine.” He stated that Hall’s daughter preferred dresses and enjoyed playing with Barbie dolls. He remarked approvingly that Hall had bought her daughter a wedding gown, which she used to role-play as a bride. And he was pleased that Hall’s daughter had not one but two boyfriends. In conclusion, Green predicted that Hall’s daughter would grow up to be an exceedingly feminine, heterosexual young woman.
In the 1970s and 1980s, Green and other psychiatric and social scientific researchers conducted studies intended to challenge the legal discrimination facing LGBTQ parents and buttress these sorts of conclusions. Repeatedly they found that the children of LGBTQ parents appeared to be heterosexual and preferred gender-normative toys, games and clothing.
These experts were responding to judges’ fears about the gender and sexual identities of children raised in unconventional households. But their studies and their courtroom testimony failed to challenge the thinking that underlay these anxieties. Instead, even as they defended the fitness of LGBTQ parents, these experts continued to frame homosexuality and gender nonconformity as negative traits that “good” parents would help their children avoid.
But in doing so, they created a legal record, and psychological study evidence that today can be wielded as a weapon against parents who support their children’s transgender or gender-nonconforming identities. Such support can be interpreted as poor parenting, as failing to safeguard a child’s best interests or even as abuse, placing the parent at risk of losing custody.
Although Anne Georgulas has — thus far — retained joint custody of Luna, the parents of other gender-nonconforming children have not been so lucky. The discrimination they are facing in family court today for supporting their children’s gender is a product of contemporary opposition to transgender visibility, but it is also a legacy of gay and lesbian custody cases that made children’s gender and sexual normativity a basis for custody determinations. Today, LGBTQ activists and allies must pick up where these earlier custody cases left off, by pushing family court judges to recognize the rights of adults and children whose gender and sexuality defies convention.