by Samantha L. Weissman
California has often been a legislative pioneer when it comes to addressing issues of equality concerning the LGBTQIA+ (lesbian, gay, bisexual, transgender, queer or questioning, intersex, asexual or ally, and “plus” for other references not contained in the acronym) community and that is certainly true with the enactment of Senate Bill 495.
On October 7, 2019, California Governor Gavin Newsom signed Senate Bill 495 (S.B. 495) into law. The bill, introduced by California State Senator María Elena Durazo of Senate District 24, and sponsored by Equality California, the Long Beach Bar Association, and the Women’s Foundation of California—Women’s Policy Institute LGBTQIA Justice Team, provided several important changes to the California Family Code concerning child custody determinations.
Specifically, the legislation excluded sex, gender identity, gender expression, and sexual orientation from consideration in child custody determinations under Family Code sections 3011, 3020, and 3040. The intent of the legislature in the bill’s enactment is clear: courts are prohibited from considering these factors when making a “best interests of the child” determination.1
It did not start out that way, however, and the historical revisions and amendments to S.B. 495 are telling. What started out as a “soft” notice ultimately became a firm commandment. The revisions to S.B. 495, though relatively minor in number, were extremely powerful in effect and indicate that the legislature intended to provide courts with firm limitations on considerations in making child custody determinations.
Original Introduction of S.B. 495
S.B. 495, as initially introduced, sought to only amend Family Code section 3040 to include the following language: “The sexuality or gender identity of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody . . . .”2
The introductory legislative digest specified that the purpose of the modification was to “provide that the sexuality or gender identity of a parent, legal guardian, or relative may not disqualify that person from receiving custody.”3 Interestingly, no mention was made that the then-existing law of Family Code section 3040(a)(1) already provided that the courts were prohibited from preferring a parent on the basis of their sex.4
There are several important takeaways from the original language proposed by S.B. 495.
First, the proposed language only addressed “gender identity” and said nothing of “gender expression.”5
“Gender identity” is defined as “one’s innermost concept of self as male, female, a blend of both, or neither—how individuals perceive themselves and what they call themselves. One’s gender identity can be the same or different from their sex assigned at birth.”6 On the other hand, “gender expression” is defined as “external appearance of one’s gender identity, usually expressed through behavior, clothing, haircut, or voice, and which may or may not conform to socially defined behaviors and characteristics typically associated with being either masculine or feminine.”7 Distinguishing the two terms is very important as one is inherently internally felt while the other is externally displayed—two separate, albeit not necessarily distinct, actions, of which the court should not give consideration to either.
Second, the proposed language addressed “sexuality,” and said nothing of “sex” or “sexual orientation.”8 In its most basic definition “sexuality” is “the quality or state of being sexual, “the condition of having sex,” “sexual activity,” “expression of sexual receptivity or interest especially when excessive,” and “the sexual habits and desires of a person.”9 Accordingly, “sexuality” as it was proposed to be used, was a misnomer that did not speak to the real classifications the statutes needed to address—“sex” and “sexual orientation.”
“Sexual orientation” is defined as “an inherent or immutable enduring emotional, romantic or sexual attraction to other people.”10 In simplified terms, “sexual orientation” reflects the sexual attractions one has in others and it includes those who don’t find sexual attraction in others at all (i.e., heterosexual, homosexual, bisexual, asexual, etc.).11
The term “sex” has been traditionally defined as “the state of being male or female.”12 Generally, a person’s sex is determined at birth based on their genitals. Importantly though, someone’s “sex” or “gender assignment” is not always, or even necessarily, reflective of their “gender identity” or “gender expression.” “Gender identity” and “gender expression” can include identifying with/expressing oneself as male, female, transgender, gender neutral, non-binary, agender, pangender, genderqueer, two-spirit, third gender, and all, none, or a combination of these.
Third, as originally introduced, the bill specified that sexuality or gender identity “shall not disqualify” a person from receiving custody.13 So, while those factors did not automatically exclude a person from custody determinations, it also left the courts with wide discretion to consider those factors in making custody determinations.
Later Alterations
On March 25, 2019, S.B. 495 was substantially amended by the Senate Judiciary Committee to expand the proposal to multiple sections of the Family Code, to propose stronger language, as well as to provide a wider breadth of factors to be excluded from court consideration in child custody determinations.14
First, the Senate Judiciary legislative digest highlighted that, per then-existing law, courts were prohibited from preferring a parent on the basis of their sex.15
Second, the Committee substantially modified the bill’s proposal as follows: “This bill would additionally provide that the sexuality or gender identity prohibit the court from considering the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative may not disqualify that person from receiving custody. in determining the best interests of a child for the purpose of granting custody, and would make related findings.” (Strikethrough in original.)16
Third, the Senate Judiciary Committee proposed expansion of the changes to Family Code sections 3011 and 3020.17
The actual proposed changes themselves, while few in number, were well crafted in their impact and specificity.
California Family Code Section 3011
Then-existing Family Code section 3011(b)(1)(A) was amended to remove the gendered pronouns “he” and “she” in exchange for nongendered neutral terms “the parent” or “person seeking custody.”18 Interestingly, that same year, Assembly Bill 1817 (A.B. 1817), which was chaptered on July 12, also proposed a similar amendment to Family Code section 3011(b)(1)(A). It proposed that the statute should read: “A child to whom he or she the parent is related by blood or affinity or with whom he or she the parent has had a caretaking relationship, no matter how temporary.” (Strikethrough in original.)19
This change was also in line with the already existing language of the statute, which referenced the terms “the parent” or “person seeking custody” in sections (b)(1), (b)(1)(C).20
Family Code section 3011(b) was also amended to include the direct command to the court that “[n]otwithstanding subdivision (a), the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.”21
This new proposed language provided the courts with a clear, strong directive that it could not consider certain factors. This was a substantially stronger change from the original language that merely noted that “sexuality or gender identity” would not “disqualify” a person from receiving custody. This change shifted the burden to the court to ensure that the enumerated categories would not be included in its consideration.
Further, the revisions expanded the categories for non-consideration to include sex, gender identity, gender expression, and sexual orientation.22
California Family Code Section 3020
Subsection (d) was added to Family Code section 3020.23 As proposed, it stated: “The Legislature finds and declares that it is the public policy of this state to ensure that the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative is not considered in determining the best interests of the child.”24
Much like subsections (a) and (b) concerning health, safety, and welfare, and “frequent and continuing contact,” respectively, subsection (d) affirmatively declared that it is the policy of the state not to give consideration to sex, gender identity, gender expression, or sexual orientation of persons.25
Importantly too, subsection (d) was not connected with subsection (c), which gives priority to the public policy espoused in (a), concerning health, safety, and welfare, over the public policy adopted in (b), concerning “frequent and continuing contact.”26 Subsection (d) is not secondary or ancillary to either of those other public policy provisions—it stands on its own.
California Family Code Section 3040
Lastly, Family Code section 3040(c) was amended to state: “The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child under subdivision (a).”27
Again, mirroring the language of the modification in Family Code section 3011(b), this section served to clearly direct the court in its available considerations.
Why It Matters
In addressing the basis for S.B. 495’s introduction, Senator Durazo’s chief of staff, Ms. Jennifer Richard, specified that: “It came out of lived experiences,” and the drafters wanted “pro pers to know their rights under the law.”
More and more people are identifying as LGBTQIA+.28 According to a Gallup report issued on February 24, 2021, 5.6% of Americans, up 1.1% from 4.5% in 2017, identify as LGBT.29 The numbers have been steadily rising since 2012.30 With more people identifying as LGBTQIA+ and with more widespread recognition of varying gender identities and expressions, it was important that people, as well as courts, have clear, defined parameters in understanding whether and how such matters are implicated in “best interests of the child” test.
Further, at the time S.B. 495 was introduced, case law regarding sexual orientation and gender issues in custody determination was not only open to varied interpretations, but it was also clearly biased against parents identifying as LGBTQIA+.31
The effect of this was that parents were forced to hide their true selves for fear of exposing themselves to bias that could cost them custody of their children. Ms. Mandy Taylor, the Behavioral Health Equity Manager for the California LGBTQ Health and Human Services Network and who served on the Women’s Policy Institute LGBTQIA Justice Team, presented testimony on her own “lived experience”:
If I couldn’t guarantee an unbiased judge, mediator, and opposing counsel, being “out” was too much of a risk to my [child’s] safety. I waited three years to be publicly “out.” I waited until I finished school. I waited until I was solidly middle-class. I waited until I could afford an attorney. I waited until I had a community that helped me feel safe. No one else should have to wait like I did.32
Conclusion
S.B. 495 was a critical step in ensuring that the California LGBTQIA+ community is afforded equal treatment in child custody determinations. Its enactment effectively served to right the wrongs of legislation and case law that improperly marginalized and potentially discounted good and loving parents merely because of their sex, gender identity, gender expression, and/or sexual orientation. Going forward, parents who may have otherwise been daunted by addressing custody issues because of their sex, gender identity, gender expression, and/or sexual orientation will be able to proceed with confidence knowing that those qualities do not automatically serve as a bar to their pursuit of custody rights.
ENDNOTES
(1) Cal. Fam. Code §§ 3011, 3020, 3040.
(2) S.B. 495, 2019-20 Reg. Sess. (Cal. 2019) (emphasis added).
(3) Id.
(4) Cal. Fam. Code § 3040(a)(1).
(5) S.B. 495, 2019-20 Reg. Sess. (Cal. 2019).
(6) Human Rights Campaign, https://www.hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-definitions (last visited May 13, 2021).
(7) Id.
(8) S.B. 495, 2019-20 Reg. Sess. (Cal. 2019).
(9) “Sexuality,” Merriam-Webster.com, https://www.merriam-webster.com/ dictionary/sexuality (last visited May 13, 2021).
(10) Human Rights Campaign, https://www.hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-definitions (last visited May 13, 2021).
(11) Id.
(12) “Sex,” Merriam-Webster.com, https://www.merriam-webster.com/dictionary/sex (last visited May 14 2021).
(13) S.B. 495, 2019-20 Reg. Sess. (Cal. 2019).
(14) Id.
(15) Id.
(16) Id.
(17) Id.
(18) Id.; Cal. Fam. Code § 3011.
(19) S.B. 1817, 2019-20 Reg. Sess. (Cal. 2019).
(20) Cal. Fam. Code § 3011.
(21) S.B. 495, 2019-20 Reg. Sess. (Cal. 2019) (emphasis added).
(22) Id.
(23) Id.; Cal. Fam. Code § 3020.
(24) Id. (emphasis added).
(25) Id.
(26) Id.
(27) Id.; Cal. Fam. Code § 3040(c) (emphasis added).
(28) Bex Montz, Acronyms Explained, OutRight Action International (Aug. 12, 2019), https://outrightinternational.org/content/acronyms-explained.
(29) Jeffrey M. Jones, LGBT Identification Rises to 5.6% in Latest U.S. Estimate, Gallup (Feb. 24, 2021), https://news.gallup.com/poll/329708/lgbt-identification-rises-latest-estimate.aspx.
(30) Id.
(31) In re Marriage of Birdsall, 197 Cal. App. 3d 1024, 1028 (1988); Chaffin v. Frye, 45 Cal. App. 3d 39, 45-46 (1975).
(32) Bias Free Child Custody: Changing the Family Code to Improve Lives, Cal. LGBTQ Health and Hum. Servs. Network (Oct. 17, 2019), https://californialgbtqhealth.org/bias-free-child-custody-ca/.
Samantha “Sam” L. Weissman is an associate at The Amin Law Group, Ltd. She practices exclusively in the area of family law and can be reached at sweissman@TALGlaw.com.