New California law on transgender youths doesn’t remove a parent’s custody

California Gov. Gavin Newsom recently signed into law a measure that aims to strengthen protections for transgender youths and their families.

Senate Bill 107 contains an array of safeguards for families who arrive in California from states where their children have been denied gender-affirming health care.

It bans courts from enforcing subpoenas from other states regarding minors seeking that care. It prohibits health care providers from releasing medical information. And it clarifies that California courts have jurisdiction over any child custody cases arising from parents taking their children to the state for care.

But a Sept. 29 Facebook post went further to suggest the law says something else: 

"Gov. Gavin Newsom signed Senate Bill 107 into law. In the state of California, your child can now be taken from your custody if you do not affirm gender-reassignment surgery."

The post, shared by the American Council, is a screenshot of a tweet by the group’s founder, Tanner DiBella. The American Council describes itself as an organization dedicated to increasing voter turnout among Christian evangelicals. 

The post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

DiBella told PolitiFact the California Legislative Counsel’s summary of the law backs up his reasoning. He pointed specifically to a passage of the summary at the top of bill’s text that reads, "The bill would authorize a court to take temporary jurisdiction because a child has been unable to obtain gender-affirming health care."

But experts we spoke to said that doesn’t mean the state would take custody of the child — it clarifies that California courts would assume jurisdiction of the legal matter. Current law allows California courts to decline jurisdiction in multistate custody matters in certain circumstances.

Courtney Joslin, a Martin Luther King Jr. professor of law at the University of California, Davis School of Law, said the law has nothing to do with who gets custody of a child during a dispute and makes no mention of allowing the court to take custody.

"It’s just describing which courts have jurisdiction in those multi-state (custody disputes)," she said. "There’s no possibility that this bill could be interpreted to do what this person is claiming."

Asaf Orr, a senior staff attorney and Transgender Youth Project director at the National Center for Lesbian Rights, said the bill doesn’t give California carte blanche to remove a child from a parent’s custody. 

If parents disagree over whether their child should receive gender-affirming care in California, a state court would hear that case and rule based on evidence provided by both parents, Orr said. Out-of-state laws would not apply to the court’s determination. 

Orr said this isn't a new thing, as a state already has jurisdiction over court cases related to children who recently entered that state, for reasons such as escaping from domestic violence. 

"It just ensures that, in situations like this, the court recognizes they have jurisdiction to hear these cases and that they’re going to decide them based on the evidence," he said. "Both parties, as in any court case, will have the opportunity to present evidence and it’s going to be individualized for that young person."

Wendy Seiden, a visiting professor at Chapman University’s Fowler School of Law, said there is nothing in the law that would allow California to take custody of a child. But it does allow California to resist another state’s attempt to remove a parent’s custody if the proposed removal is based on that parent’s efforts to get gender-affirming care for their child.

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stated on October 23, 2022 in Instagram post

California state Sen. Scott Wiener “doesn’t just want to sterilize California kids, but sterilization of kids everywhere!”

California state Sen. Scott Wiener, D-San Francisco, an attorney and Senate Bill 170’s author, described DiBella’s interpretation of the text as "categorically false."

"It doesn’t change custody laws in any way," Wiener said. "It just means that, rather than having to go back to Texas or Alabama, they can do it in court here." 

Weiner said he authored the bill in response to proposed legislation in other states involving transgender youth. It provides guidance, he said, for California courts concerning custody hearings involving transgender youths and it helps protect parents who decide to bring their children to the state.

"This bill literally protects parents’ ability to make decisions about children's health care without having to be thrown in prison," Wiener said.

At least 24 states have proposed bills since Jan. 1 targeting transgender or nonbinary youths’ ability to receive gender-affirming care.  

In Texas, Republican Gov. Greg Abbott issued a directive earlier this year that ordered state officials to launch child abuse investigations of parents suspected of allowing their child to receive gender-affirming care. 

Alabama Gov. Kay Ivey signed a law in April that makes providing gender-affirming care for youths a felony, punishable by up to 10 years in prison.

A Facebook post claims that a recently signed California law dealing with gender-affirming care for transgender youth will allow that state to take custody of a child from a parent. 

Experts said that’s not so. The bill clarifies that California courts have jurisdiction to hear any custody cases related to a child being taken to the state to seek gender-affirming health care. It does not say that the courts can take custody of a child. 

We rate this claim False.