Does the right to parenting to direct the moral or religious training of a child end when gender transition is at issue? In a recent family law case, that question was put to the test after a trial judge’s comments to the child led one father to try and disqualify the judge.

Gender Transition and Parental Rights

The father is a Christian minister and youth pastor. He opposed, on moral and religious grounds, gender transitions for his minor child a biological male – before adulthood.

In 2016, the child was removed from the mother’s custody because of her substance abuse issues. The father was not an offending parent, and the child was not adjudicated dependent as to the father.

After a reunification with the mother, the child later ran away from the mother after the mother had relapsed. Importantly, the mother had given the child sex-reassignment hormones which she had bought on the internet without a lawful prescription.

The child then moved in with the father. However, the father refused to seek any sex-reassignment treatment, and opposed any form of gender transition before adulthood.

The Department of Children and Families (“DCF”) moved for an emergency modification of placement for the child, seeking to remove the child from the custody of both the mother and the nonoffending father.

The only grounds that DCF provided for why the child should be removed from the father’s custody was not allowing the child to live and dress as a female or pursue gender transition.

The trial judge removed the child from the custody of the father because the father: seemed to be unaware and unaccepting of the child’s current emotional situation and ensuing needs based on the father’s opposition to gender transition for the child before adulthood.

The father asked for the child to be returned to his custody on the grounds that it is unlawful to infringe on parental rights in the absence of any findings of actual or prospective abuse, abandonment, or neglect.

The day before the hearing, the trial judge interviewed the child in-camera. The trial judge referred to the child by female pseudonyms, as well as “sister” and “young lady.” The trial judge also told the child that she could order the child’s father to submit to “professional help,” as a way to change the father’s moral or religious beliefs. As a parting remark, the trial judge told the child, “Chin up, sister.”

The father moved to disqualify the trial judge. The trial judge promptly entered a written order denying the motion to disqualify as “legally insufficient.” The father then petitioned the appellate court to disqualify the trial judge.

Parental Rights v. Right to a New Judge

In Florida, a party in a lawsuit may move to disqualify a trial judge if “the party reasonably fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.

In Florida, children do not belong equally to parents and the state. Rather, their protection is first entrusted to the parents, extended family next, and then, if necessary, the state.

On appeal, the panel found the father had a right to rely on his moral or religious beliefs to direct his child’s upbringing. The father was also found to have a right to refuse to allow the child to further the child’s gender transition before adulthood under Florida law. Moreover, the father’s opposition to gender transition before adulthood is not prohibited by Florida law.

The trial judge’s pre-hearing remarks — referring to the child by female pseudonyms, telling the child “you are one smart, strong[,] [t]ogether, young lady,” and to “[c]hin up, sister”— implied a foregone conclusion, before hearing the father’s motion, that the trial judge was supportive of the child’s gender transition before adulthood and opposed to the father’s reliance upon his moral or religious beliefs to otherwise direct the child’s upbringing.

The trial judge’s in-camera interaction with the child went beyond mere attempts to establish a rapport with the child. The trial judge verbally expressed an inclination to order the father to submit to “professional help,” in an effort to change his moral or religious beliefs.

However, one judge on the panel dissented. While the dissenter had no quarrel with the father’s parental right to direct his child’s upbringing, or with Florida’s statutory protection of that right, the dissenting judge felt the trial judge was simply attempting to relate to the child on the child’s terms. To the dissent, the trial judge’s comments were completely appropriate.

The opinion is here.