☆ Attorneys disagree on free speech implications of controversial CA'n custody bill

Opp Now sat down with four law and First Amendment experts (from the Bay Area and beyond) to parse a burning question about AB 957: Does considering, in custody decisions, “affirmation of a child's gender identity” part of health and welfare mean that parents' speech is unjustly compelled? Nuanced insights below in this Opp Now exclusive.

James McManis, First Amendment and Family Law Attorney in San Jose, CA:

As our office has a very active family law practice, I'm familiar with California Family Code Section 3011, which lists factors to be considered when making a determination of the best interests of the child. To me, it appears that AB 957 is updating these existing factors to keep up with the times (especially considering that California is a progressive state). Really, these issues of gender identity and expression have been present in society for a long time, but have only begun gaining traction in the media in the last few years.

All AB 957 seems to be saying is that the parent's affirmation of their child's gender identity/expression may be considered by the court. This goes more to the relationship between the parent and child. For instance, if a boy likes to play with dolls and wear dresses, that's a plus if the parent is supportive, but it's another story if it bothers them and they're discouraging it. So I think it's helpful for the Family Court to consider if the parent is affirming and encouraging their child's gender identity/expression, rather than actively trying to suppress it.

With all this said, nobody is compelled to say any particular thing under AB 957 (and the bill specifies that “affirmation includes a range of actions,” which could mean conduct as well as words); thus, it's not a violation of the First Amendment in that sense.

Erin Friday, Attorney in San Francisco, CA:

AB 957 does violate First Amendment protections related to religious freedom because in order to retain custody of their child, a parent must affirm their gender identity (i.e., call the child by their chosen name and pronouns). However, there are many religions that don't believe in gender identity.

Going further: The frightening part about this bill is that it doesn't only apply in divorce or breakup situations where parents are fighting for custody of the child. Because AB 957 uses the phrase “health, safety, and welfare of the child” and ties it to affirming their gender identity, it moves into the penal code. The penal code uses these same three words to determine whether a parent is abusive or neglectful. Really, “health,” “safety,” and “welfare” are terms of art, sacred words, the most important determinations that a judge must make. So with AB 957, a judge is mandated to find out if the parent is encouraging their child's gender identity—whatever identity that might be, and however old the child might be—and penalize anyone who isn't. That's a direct free speech violation.

In other words: Parents can be labeled abusive and face legal consequences because they, according to AB 957's new requirement, supposedly aren't safeguarding their children's health, welfare, and safety. At the end of the day, what this bill is trying to do (through a backdoor method) is punish parents for not transitioning their children.

David Loy, First Amendment Coalition Legal Director, California Freedom of Speech Attorney:

Does this bill compel speech? Not necessarily. Let me walk through that analysis a bit:

If we step back and analyze AB 957, it arises in the context of family law decisions about custody and visitation when they are contested in court. Traditionally and historically, the judge in custody disputes must look to the child's best interest. This is an inherently multi-factor, fact-intensive consideration. For example, judges can weigh factors like the extent to which a parent supports their child in athletic, academic, and extracurricular endeavors. There's no one-size-fits-all standard.

AB 957 simply names affirmation of gender identity or expression as one factor—just one—among others that can be considered in these decisions. It doesn't privilege this factor or make custody decisions all about whether the parent is affirming their child's gender identity or expression. It's just part of the mix to be evaluated. So really, AB 957 does no more than family court judges are already allowed to do. For example, one might have a First Amendment right to attack politicians critically and caustically; but if a parent treats a child the same way, judges can take note of that in family court.

If you look at this issue using First Amendment doctrine, I suppose one could argue AB 957 is content-based, in the same way that a court might assess how parents speak to children as part of the best interest analysis in any case. However, even if that were true, such a regulation would likely be the least restrictive means to serve the compelling interest in protecting the health and wellness of children. It's like saying that parents who are rude to their children may have a disadvantage in custody decisions. But it doesn't directly compel anything.

It's worth noting, too, that generally speaking, parental rights are not absolute to the extent that judges in custody or visitation disputes must always make a decision based on their view of the best interests of the child. If you look at AB 957's legislative history, it does say and cites evidence for strong correlations between parent-affirmed gender identity/expression and improved mental health and decreased risk of suicide, which is obviously important. So this is a policy decision the legislature made; that's why they backed AB 957. One can agree or disagree with their decision, and I'm not taking a position one way or the other on behalf of the First Amendment Coalition; but from a First Amendment perspective, I see no red flags.

Joseph Russomanno, Arizona State University Journalism Professor, First Amendment Expert:

The First Amendment grants people both the right to express their viewpoints and to keep other beliefs to themselves. The choice is the individual’s, not the government’s. The right to keep opinions private, referred to as the “compelled speech doctrine,” especially applies to specific viewpoints.

But while these beliefs can be kept from public view, the U.S. Supreme Court has ruled that in certain contexts the First Amendment does not protect people from needing to reveal some kinds of information when sought by government institutions. One of those situations, I believe, is AB 957 and its requirements. That’s the basis of why I disagree with claims that the bill violates the “compelled speech doctrine” and the First Amendment.

The bill requires that under circumstances such as custody disputes, parents must affirm their child’s gender in accordance with how the child self-identifies. As the bill stipulates, having this information can be “for the good of the child.” The distinction between expression that is and is not shielded from the demands of government lies in the difference between opinions/beliefs and facts/information, respectively. The knowledge necessary to make the best decision in a custody hearing is not equivalent to forcing a citizen to pledge allegiance to matters of politics or religion, for example. Instead, it is more akin to a situation in which information is needed to determine whether to grant an application for government benefits or a driver’s license.

In sum, the First Amendment isn’t violated when government requires certain information from people, particularly when doing so serves the health, safety, and welfare of its citizens.

Read about Chabot College’s free speech debate here.

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