Newsom Vetoes Bill Requiring Judges to Consider Gender Identity in Custody Cases

Photo Source: Fox News via Justin Sullivan/Getty Images Photo Source: Fox News via Justin Sullivan/Getty Images

The California Assembly and Governor Gavin Newsom recently clashed over their interpretation of what is in the best interests of the child in custody proceedings. The legislature had passed a bill that directed judges to consider each parent’s acceptance of their children’s gender identity when determining post-divorce custody. Newsom vetoed it, citing his concerns about creating a legal standard that “singles out one characteristic.”

Assembly Bill 957, The “TGI (Transgender, Gender-Diverse and Intersex) Youth Empowerment Act,” was sponsored by Assembly member Lori Wilson (D-Suison City). Introduced on February 14, 2023, it sought to amend the State’s Family Code to include a provision that would have pressured each parent seeking custody during divorce proceedings to affirm their children’s gender identity as part of a judge’s determination of what is best for the child’s health, safety, and welfare.

The bill would have amended Section 3011 of the California Family Code, which currently states that a court shall, among other factors it finds relevant, consider all of the following: the health and safety of the child, whether there was a history of abuse, the identity of blood relatives, the nature of the child’s contact with both parents, and the “habitual or continued use of controlled substances” by either parent.

The new bill would have added to these factors “a parent’s affirmation of the child’s gender identity or gender expression.” The bill went on to explain that affirmation “includes a range of actions and will be unique for each child, but in every case must promote the child’s overall health and well-being.”

TGI was controversial from the start, with conservatives condemning it by arguing it would force parents who did not support their transgender children to lose custody. Wilson, who is the parent of a transgender child, sought to put into law the importance of affirming a child’s gender identity. With bipartisan support, the bill passed the California Assembly by a vote of 57-16, and the State Senate by a 30-9 margin.

On September 22, Newsom issued a statement explaining why he “returned” AB 957 to the legislature without his signature. He said that he could not sign the bill and went on to explain his reasons. “I appreciate the passion and values that led the author to introduce the bill,” he explained, and “I share a deep commitment to advancing the rights of transgender Californians, an effort that has guided my decisions through many decades in public office.”

However, he continued, “I urge caution when the Executive and Legislative branches of state government attempt to dictate –in prescriptive terms that single out one characteristic—legal standards for the Judicial branch to apply. Other-minded elected officials, in California and other states, could very well use this strategy to diminish the civil rights of vulnerable communities.” He then said judges could already consider whether parents affirm the gender identity of their children when making custody and visitation decisions. But doing so should be at their discretion.

After the veto, Wilson issued a statement that expressed her disappointment over the governor’s veto. She is quoted in Los Angeles Times, saying “I’ve been disappointed over the last few years as I watched the rising hate and heard the vitriol toward the trans community. My intent with this bill was to give them a voice, particularly in the family court system where a non-affirming parent could have a detrimental impact on the mental health and well-being of a child.”

The bill’s co-author, Senator Scott Weiner (D-San Francisco), called Newsom’s veto a “tragedy.” He pointed out Newsom’s previous support for bills that made California a “refuge from discriminatory policies in conservative states,” including Senate Bill 107 which created safeguards to prevent out-of-state attempts to “penalize families that come to California seeking medical treatment” for transgender children. He said, “Our job as legislators is to set clear standards for judges to apply and that’s what we did here.”

Politico called Newsom’s veto a “stinging defeat to LGBTQ+ activists” and Equity California, the nation’s largest statewide LGBTQ+ agreed, saying, “We are disappointed and disheartened by Governor Newsom’s decision to veto AB 957, which would have helped to ensure that the unique needs of transgender and gender non-conforming youth are explicitly considered in child custody and visitation decisions.”

Whether Newsom’s veto is seen as a defeat, disappointment, or disheartening act, and whether it will tarnish his progressive record on LGBTQ+ issues, remains to be seen. The governor’s stated motive of safeguarding the separation of powers lest others “use the strategy to diminish the civil rights of vulnerable communities,” may salvage his reputation. And, as he said in his veto message, a close reading of existing laws already allows judges to include gender identity as they determine what is in the best interest of a child.

Maureen Rubin
Maureen Rubin
Maureen Rubin is an Emeritus Professor of Journalism at California State University where she taught media law and writing and served as an administrator. Previously, she worked in the Carter White House and U.S. Congress, She is a graduate of Catholic University Law School and holds a Master's from USC.
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