Ron DeSantis’ claim that trans kids can flee to CA for care without parents gets it wrong

Grace Abels
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Ron DeSantis

Statement: “Your minor child can go to California without your knowledge or without your consent and get hormone therapy, puberty blockers and a sex change operation.”

DeSantis
DeSantis

Florida Gov. Ron DeSantis warned that California makes it possible for parents to lose control of their minors’ health care decisions.

"Your minor child can go to California without your knowledge or without your consent and get hormone therapy, puberty blockers and a sex change operation all without you knowing or consenting," the Republican presidential primary candidate said during a Nov. 30 debate with Democratic California Gov. Gavin Newsom.

The claim was among many the pair hurled at each other during Fox News’ "The Great Red vs. Blue State Debate," moderated by Sean Hannity and held in Alpharetta, Ga.

After the event, DeSantis’ team referred us to two news stories that mentioned Senate Bill 107, 2022 legislation that Newsom signed into law making California a "sanctuary state" for families seeking gender-affirming care. The law’s proponents said it was written and passed in response to bills in other states that made gender-affirming care illegal or threatened to criminalize parents who allowed their kids to access it.

But DeSantis’ claim is misleading. Children younger than 18 still need parental consent to access gender-affirming medical care. A change to interstate child custody law allows for narrow circumstances under which a minor could theoretically receive gender-affirming care without one parent knowing or consenting. But that is not how the law is constructed, and experts say the chances of that happening would be low.

Parental consent is still required for minors to get gender-affirming medical care in California

Can a 15-year-old get on a bus to San Francisco and get sex-reassignment surgery? No.

"In California, there is no provision for a minor to consent independently to gender-affirming medical care," said Lois Weithorn, a law professor at the University of California College of the Law, San Francisco.

Whether a child is new to the state or a longtime resident, parental consent is required for physical health care, and Senate Bill 107 did not change that.

California law allows some minors to receive outpatient mental health care without parental consent, Weithorn said, but not the pharmacological or surgical interventions that DeSantis described.

DeSantis’ team sent us two articles when we asked for evidence to support his claim.

One came from the National Review, a conservative news outlet: "Like the Pied Piper, California under S.B. 107 would entice children nationwide to leave their families and run away into the arms of California bureaucrats who believe that harmful drugs and sterilizing surgeries should be freely available to anyone who asks," the Sept. 7, 2022, article said.The other article, from The Center Square, a publication of the conservative-leaning nonprofit Franklin News Foundation, referred to a Sept. 20, 2022, letter that numerous groups sent to Newsom asking him to veto the bill. The letter incorporated a line similar to the one in the National Review about California becoming a "pied piper" for kids to leave their families in search of care.

But California law does not permit minors to get puberty blockers, hormones or surgery without parental consent, experts said.

What if a child is traveling with a parent?

Among its changes, Senate Bill 107 altered the Uniform Child-Custody Jurisdiction and Enforcement Act, a section of the law that outlines how different states determine who has authority to make a child custody decision.

The Uniform Law Commission, a nonprofit organization working for the uniformity of state laws, drafted the law in 1997. Every state except Massachusetts has adopted it.

By assigning a "home state" to children involved in custody orders, the act aims to prevent having competing custody orders from different states. Home states are typically where the parents divorced, the first custody order was issued or the child lived for six months before a custody proceeding.

That "home state" remains in charge of the case unless another home state is legally established. Generally, if parents want to modify custody orders, they must do so in the child’s home state.

California, like the other states with this uniform law, has a caveat to account for extreme circumstances. In instances of abandonment, mistreatment or abuse, the law says a state other than a child’s home state can claim "temporary emergency jurisdiction," giving it short-term authority to make custody decisions.

Senate Bill 107 amended that portion of the law to outline another qualifying emergency circumstance: situations in which a parent — or person acting as a parent or guardian— and child come to California in an attempt to receive gender-affirming care.

But a temporary emergency jurisdiction’s effect is narrow, experts said: It applies only to custody agreements that originated outside of California and only for a court-specified period, not forever. And the other parent is entitled to know about the court proceedings as well as the outcome, said Scott Altman, a law professor at the University of Southern California Gould School of Law.

The law lets the California court take temporary jurisdiction over a case but does not automatically favor parents who support gender-affirming care for their children.

If a California court takes emergency jurisdiction, it must contact the home state court to "resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order."

If a parent with a valid custody order files a motion in the home state, that home state jurisdiction trumps California’s. The uniform law mandates the custody order be "enforced and recognized in the other states," said Courtney Joslin, a University of California, Davis law professor, "and that remains true in California."

To summarize a complex process: A child involved in a custody dispute who is traveling with a parent who supports the child's request to receive gender-affirming care could be placed temporarily into the traveling parent’s custody (under emergency jurisdiction), but this wouldn’t override an existing custody order or jurisdiction from the child’s home state.

If the child has no "home state" or existing custody order, a temporary custody order could last longer, Altman said.

A narrow possibility

There appear to be narrow circumstances under which DeSantis’ statement could have merit.

If, for example, a parent and a child seeking gender-affirming care fled to California in violation of a custody order from another state, a court could take temporary emergency jurisdiction and issue a temporary custody order.

The other parent would receive notice of the temporary custody order and its conditions, legal experts said.

If the temporary custody order granted sole physical and legal custody to the parent in California and said that parent was not required to inform his or her counterpart of medical decisions, a child could receive gender-affirming medical care without the other parent’s consent or knowledge.

But there is no guarantee that a temporary order would remove the other parent from legal decisions or medical knowledge. Again, this law gives no legal preference to parents who affirm a child’s gender identity. The court must decide what is in the child’s best interests.

It is possible that a temporary order’s conditions would require only one parent’s consent. But the other parent would know she or he had temporarily lost that right.

If the other parent had a valid custody order from the child’s home state, this circumstance would probably be short-lived. The parent with custody could file a motion in the home state, and the Uniform Child-Custody Jurisdiction and Enforcement Act mandates that the courts work together to enforce the existing custody order.

If the other parent had no custody order from the home state, the temporary order could last longer.

There’s one more condition that makes this a hard-to-imagine scenario: long wait times for gender-affirming care, said Kathie Moehlig, executive director of TransFamily Support Services, a nonprofit that supports families of children undergoing transition, and a sponsor of Senate Bill 107.

A child receiving substantial care, or all the procedures DeSantis described, within a temporary order’s time frame would be unlikely, especially if the other parent has custody.

Our ruling

DeSantis said, "Your minor child can go to California without your knowledge or without your consent and get hormone therapy, puberty blockers and a sex change operation."

California law requires parental consent for gender-affirming medical care. The state altered its interstate child custody jurisdiction law in 2022 to let the state take temporary emergency jurisdiction over a custody case when a child arrives for gender-affirming care. But that change doesn’t automatically mean that parents who support the care will be able to exclude the other parent or guardian from decision-making.

Such court orders are temporary and existing valid custody orders from another state would supersede them.Under narrow circumstances, a child might be able to get care without a parent’s knowledge, but experts say the conditions allowing it are unlikely.We rate DeSantis’s claim Mostly False.

Our sources

This article originally appeared on Austin American-Statesman: DeSantis falsely claims trans kids can get care in CA without parents