A recently introduced Colorado bill seeks to require judges to consider “misgendering” as a form of “coercive control” during child custody disputes. If passed, the bill would pose a major threat to parents’ First Amendment rights and prevent judges from considering the individual circumstances surrounding family conflict over a child’s gender identity.
The bill, the Kelly Loving Act, requires that “when making child custody decisions and determining the best interests of a child for purposes of parenting time, a court shall consider deadnaming, misgendering, or threatening to publish material related to an individual’s gender-affirming health-care services as types of coercive control.” Since the bill defines coercive control as a “pattern of threatening, humiliating, or intimidating actions, including assaults or other abuse, that is used to harm, punish, or frighten an individual,” it would essentially force judges presiding over custody disputes to consider it form of child abuse when a parent refuses to use a child’s chosen name.
“In some custody disputes, ‘misgendering’ or ‘deadnaming’ could be part of the kind of ‘coercive control’ courts can consider—a pattern of threatening, humiliating, or intimidating actions used to harm, punish, or frighten,” Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, tells Reason. “But treating that speech as inherently coercive or abusive, regardless of context, risks punishing parents simply for disagreeing with the state’s preferred views on gender. That veers into constitutionally suspect territory.”
The bill leaves little room to allow judges to look at conflict over a child’s gender identity on a case-by-case basis—including the possibility that a parent may object to their child’s social transition for perfectly understandable reasons. Instead, the law would automatically take the side of the affirming parent and brand the resistant parent as essentially abusive.
But children identify as transgender for a wide range of reasons, and transition isn’t the right answer in every case, especially as many clinicians themselves disagree about whether unquestioning affirmation is the correct solution for every case of childhood gender dysphoria. “Not only are there an increase in numbers of kids coming to gender clinics—and there are more gender clinics, particularly in North America—but the composition of the population coming to the gender clinics has changed from a fairly homogeneous group of kids to a very heterogeneous group of kids dominated by natal females,” a clinical psychologist and former president of the United States Professional Association for Transgender Health told Reason earlier this year. “There are some of us who feel that we don’t have a sufficient evidence base to decide which of these heterogeneous kids are best suited for medicalization.”
Terr points out that, even if people find misgendering offensive, the state shouldn’t try to punish people for engaging in speech it doesn’t like. “The First Amendment largely exists to protect controversial and unpopular speech,” Terr says. “If the government could punish people for saying things that cause offense—or compel them to speak against their beliefs—it would hand officials of every political stripe a blank check to silence dissent. That puts everyone’s rights at risk.”
