State Senate Bans Anti-Trans Discrimination in Child Custody Cases

State Senator Brad Hoylman.
Allyson Howard

File this under “How is this still legal in 2020?”

The State Senate on July 23 passed a bill sponsored by out gay State Senator Brad Hoylman of Manhattan that would ban anti-LGBTQ discrimination in custody decisions and forbid judges presiding over child custody cases from refusing to allow a child’s transgender parent to undergo gender confirmation surgery.

The bill is also under consideration in the lower house, where it is led by State Assemblymember Aravella Simotas of Queens. At press time, the Assembly had not voted on the measure but supporters are confident that passage will come soon.

Bill closes loophole in GENDA, prohibits judges from counting gender confirmation surgery against custodial parent

The legislation passed through the Senate Children and Families Committee on July 20, and in the floor vote today only three lawmakers voted against it, though the Senate website did not immediately post a breakdown of votes.

Should the bill clear all hurdles, it would specifically ban the consideration of the sex, sexual orientation, gender identity, and gender expression of parents during child custody proceedings regarding decisions on the best interest of a child.

While it is unclear whether such discrimination still occurs on a regular basis in New York State, Hoylman’s office pointed to an example in 1992 when a father was denied more visitation rights because he was deemed “not an appropriate role model for the young child as evidenced by [his] history of cross-dressing,” according to a family court ruling that was confirmed by the Appellate Division. The decision never got reversed.

A press release from Hoylman’s office noted that LGBTQ non-discrimination protections in family court are aligned with the discrimination protections in GENDA, the comprehensive transgender non-discrimination law enacted last year, but that the law did not specifically cover judicial proceedings.

“It’s 2020 — no parent in New York should be in jeopardy of losing their custody rights because of their gender identity,” Hoylman, who had his two daughters via gestational surrogacy alongside husband David Sigal, said in a written statement. “Sex, sexual orientation, and gender expression or identity have no bearing on whether someone is a good parent or not, and with the passage of this law we make it clear that these are inappropriate factors to consider when determining the best interest of a child.

Amanda Babine, the executive director of Equality New York, said there is a “dark history” of LGBTQ parents losing custody of their kids simply because of their sexual orientation or gender identity.

“This bill will ensure that no New Yorker will ever face that discrimination again in our courts,” Babine said. “We thank Senator Hoylman and Assemblymember Simotas for their leadership on this bill.”

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