No matter the medical issue, when it comes to kids, Ohio Governor Mike DeWine said something last December that every lawmaker in the country should realize when it comes to medical decisions for children.
"Were House Bill 68 to become law, Ohio would be saying that the state, that the government, knows better what is best for a child than the two people who love that child the most—the parents," DeWine said in a prepared statement.
The medical issue DeWine was speaking about really is irrelevant as I see it, because I believe that the parents of children are the best ones to decide what type of care and treatment they can receive and not legislators.
In case you're wondering, however, DeWine said those words after vetoing a bill that would have banned puberty blockers and hormones and gender-affirming surgeries for trans and nonbinary minors in Ohio, according to news reports.
[Editor's note: In January 2023, the Ohio legislature overrode DeWine's veto, thus enshrining House Bill 68 as state law. It takes effect this April.]
This has become a hot topic, with about 20 states passing laws to restrict access to gender-affirming care for trans and nonbinary people, even though these people account for a tiny sliver of the general population. According to the Williams Institute at UCLA, as of June 2022, about .52% of the entire adult American population (1.3 million) identifies as transgender. For those under 18, the number is slightly higher, at 1.43%, or about 300,000. These numbers for adults have remained steady since 2016, the last time the Williams Institute gathered data, but have increased about 10% for kids between the ages of 13 and 17, perhaps because of better acceptance by society.
Some may view the increase in the number of children identifying as alarming and part of a fad, and thus this may be some of the motivation behind some of the efforts of outlawing gender-affirming care for trans and nonbinary minors. However, these are decisions that should only be made by parents, the ones who know their children best, as DeWine said.
There is no doubt that this is a serious issue for parents to deal with and perhaps even harder for divorced parents who often do not see eye to eye. One parent may support the child's new identity and believe there are necessary medical procedures or treatments, while the other parent may not agree with them or believe they can do damage or are not understood enough to be practiced on their child.
Frankly, I am not a medical professional so I do not have an opinion on the medical merits, but as far as making decisions for children, it seems to me that should be left to the parents and not legislated. I am not for or against any choices parents make in this regard, but I think there are important things for divorced parents to be aware of and consider.
First, it should be noted that parents who share custody often share decision-making responsibilities, which usually include decisions on medical procedures—including common transgender treatments like hormone therapies and surgeries. If divorced parents share medical decision-making responsibilities, one cannot decide to allow or prevent their child to transition without the other parent agreeing.
Whatever your personal beliefs, if they do not align with your ex's, the child likely cannot easily get any treatment in this area, which would favor the parent who is against it. However, if you are a divorced parent who feels that it is vital that your child transition, mediation with a trained professional can be an option. Second, although mediation can present a less adversarial environment, mediators do not give legal advice to either party.
Third, because of the vital importance of the issue—we are talking about medical procedures and your child—you may want to consult a lawyer and get a decision from a judge. In this type of situation, the court may appoint a guardian ad litem to try to determine what the child needs, or testimony from medical and psychological professionals. While this may be the best course of action, it can also be the most expensive.
I'm sure disputes between parents over transgender and non-binary children will become more common in the coming months and years, and it will be interesting to see what decisions judges make and what precedents are set. It is hard to predict what the courts will do, but one thing seems certain: Whichever side of the issue you're on, it is the parents, and not the lawmakers, who should be making these types of decisions for kids.
Attorney Jeffery M. Leving is the recipient of President Biden's 2023 Presidential Lifetime Achievement Award.
Leving, who has dedicated his career to safeguarding children and reuniting them with their fathers, has written three acclaimed books: "Fathers' Rights," "Divorce Wars" and "How to be a Good Divorced Dad."
