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When determining child custody arrangements, should family-court judges consider whether a parent recognizes their child’s gender identity?
Colorado lawmakers have wrestled with this question for two legislative sessions in a row. The latest effort to require court consideration failed on Wednesday, February 18, amid “strong concerns” from Governor Jared Polis.
If made law, Senate Bill 26-018 would require courts to automatically suppress records of most minors who petition to change their names. But as originally drafted, the bill would have also affected court determinations regarding parental custody, mandating that judges consider whether a parent recognizes their child’s protected class identity. That child custody portion was removed from the bill on Wednesday during a Senate Judiciary Committee meeting.
“It pains us to remove this provision,” said Senator Katie Wallace, a sponsor of SB 18. “An issue first uplifted by trans community members and activists, giving voice to a serious flaw in our family court system, also shed light on the ways these issues impact countless other children, including children with disabilities, children of various religious backgrounds and mixed-race children. And now, none of those children will see relief.”
This comes after a similar portion of House Bill 25-1312 failed last year. That bill, signed into law by Polis in May, established various new anti-discrimination protections for transgender Coloradans. The bill originally included a provision that would have penalized parents in custody proceedings for misgendering or deadnaming their trans child. That requirement was similarly struck during the committee phase.
The Denver Post reported that Polis threatened to veto SB 18 if the child custody portion of the bill was not removed.
When asked to confirm, a spokesperson for Polis said the governor “previously expressed strong concerns regarding the confusing family law provisions.”
“We were encouraged to see that section taken out of the legislation yesterday,” spokesperson Eric Maruyama says. “Governor Polis deeply appreciates Senators Wallace and [Senator Chris] Kolker and other sponsors’ commitment on this important issue and their collaboration. We look forward to further discussions on the remaining provisions of the legislation.”
The change to SB 18 preceded nearly three hours of discussion and witness testimony on Wednesday. More than 130 members of the public signed up to testify on the bill; 99 in opposition, thirty in support and three in a neutral or amend position. Many opponents spoke against the child custody portion, which had already been removed.
“Just as I sat right here last year and you struck it, it was brought back with this bill. And it will surely keep coming back,” said Erin Lee, an anti-trans activist who has claimed that her twelve-year-old daughter was “convinced” she was transgender when she started attending an after-school Genders and Sexualities Alliance club. “Telling your child the truth and protecting them from medical harm is not child abuse; it is what good parents do. It should not be grounds to lose your child. The state does not know what’s right for our kids.”
Other speakers defended the removed portion, particularly members of the LGBTQ+ community, who argued that it is intended to protect children from abusive and unaccepting parents.
“I am disappointed by the removal of [the child custody provision] and sincerely hope for its return in a future bill. Because when we come out, we don’t know if our parents will hug us, beat us or disown us,” said Kara Allison, a transgender woman. “We have so much more ground to cover, but this bill is a step in the right direction.”
The amendment to remove the provision passed unanimously without discussion at the request of the bill sponsors. Wallace indicated that she plans to bring back the child custody policy in future legislation.
“In leaving this section behind, we are leaving behind children with disabilities, Indigenous children and many others. That should give us pause,” Wallace said. “We look forward to fighting another day for this effort.”
Colorado lawmakers have passed numerous bills bolstering transgender rights in recent legislative sessions, including requiring school personnel to address students by their chosen name, letting transgender people convicted of felonies change their names, and establishing a system to recognize transgender and nonbinary identities on death certificates.
As amended, SB 18 passed the committee in a 5-2 party-line vote on Wednesday, with Democrats in support and Republicans in opposition.
It will now advance to the full Senate for consideration in the coming weeks.
