A portion of a bill banning gender-affirming care in Florida has been described by critics as "fascist," in part, they say, because it allows Florida courts to make emergency custodial decisions in parental disputes if the child in question has been "subjected" to gender affirming care.
Alejandra Caraballo, a clinical instructor at Harvard Law School's Cyberlaw Clinic and former staff attorney at the Transgender Legal Defense and Education Fund, described the bill on Twitter as "a greenlight to transphobic family members to engage in state sponsored kidnapping."
Are Claims About SB 254 Accurate?
At issue is a portion of the bill, SB 254, that amends what is known as the Florida Uniform Child Custody Jurisdiction and Enforcement Act. That act, as described in a staff analysis of SB 254, was part of a nationwide effort to standardize child custody determinations in cases involving multiple states:
Before uniform state custody laws were adopted, it was not uncommon for parents who did not receive legal custody of their children to cross state lines in search of a sympathetic judge who would award them custody. While this approach to "forum shopping" was often successful for parents, it created an awareness that uniform state laws were needed to resolve custody issues. [...]
In recognition of these issues, the Uniform Child Custody Jurisdiction and Enforcement Act, more simply known as the UCCJEA [...] was developed [...] in 1997. The Act, which has been adopted in each state except Massachusetts, was designed to create uniformity among the states' dueling child custody statutes. Florida adopted the Act in 2002.
Under the UCCJEA as presently formulated, Florida courts could declare temporary emergency jurisdiction over a child if it is abandoned or if such a move is necessary to protect the child from mistreatment or abuse. Such a move, in extreme cases, could involve the state taking physical custody of a child. Under the law, the court "may issue a warrant to take physical custody of the child" if it "finds that the child is likely to imminently suffer serious physical harm or removal from this state."
SB 254 amends the UCCJEA by expanding the scenarios in which Florida courts can obtain temporary emergency jurisdiction in child custody cases. In addition to the above scenarios, it allows for temporary emergency jurisdiction to be issued "because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures [...]"
SB 254 also amends the portion of the UCCJEA regarding taking physical custody of children in emergency circumstances, specifying that the act's aforementioned "serious physical harm" includes "being subjected to sex-reassignment prescriptions or procedures."
For these reasons, the claim that this bill authorizes the state of Florida to physically intervene in child custody cases based on issues related to risk of exposure to gender-affirming care is fair.
Earlier Versions of SB 254 Were More Extreme
When SB 254 was first introduced in March 2023, the bill was written in such a way that it tacitly condoned a parent violating the custody agreement of another state by removing their child from Florida if that act was done to protect the child from being exposed to gender-affirming care. As stated in the initial draft of the bill:
A court of this state shall treat as unjustifiable conduct subjecting or attempting to subject a child to the provision of sex-reassignment prescriptions or procedures [...]
A court may not treat a parent′s removal of a child from another parent or from another state as unjustifiable conduct or child abuse if the removal was for the purpose of protecting the child from one or more of the prescriptions or procedures [described in the bill] and if there is reason to believe that the child was at risk of or was being subjected to the provision of such prescriptions or procedures.
This text was vague enough, critics argued, that such a scenario could apply to a parent lacking custody in one state kidnapping the child to Florida to prevent them from being exposed to gender-affirming care. That early draft stipulated that Florida courts may consider "whether there is reason to believe that one of the parties is subjecting or is likely to subject the child to the provision of sex-reassignment prescriptions or procedures" as a factor in considering emergency jurisdiction
The post-committee draft of the bill that passed the state Senate in April 2023 removed these sections and created the slightly more narrow set of circumstances and factors considered in emergency custody hearings in Florida described above. The bill, as currently considered, states that Florida courts have jurisdiction "if the child is present in this state."
Where Does the Bill Stand as of April 24, 2023?
Both houses of Florida's legislature must pass the bill. The Florida Senate passed SB 254, as described above, on April 19, 2023. The Florida House had also been working on a similar bill in conjunction with the Senate, which passed the day before.
The House bill, like the Senate bill, stipulates that "a court of this state has jurisdiction to enter, modify, or stay a child custody determination relating to a child who is present in this state to the extent necessary to protect the child from being subjected to gender clinical interventions."
The next step, as of this writing, is for the House to approve the Senate-amended version of their bill. Florida Governor Ron DeSantis is expected to sign the bill into law following that final legislative hurdle. Because that proposed law, even in its slightly milder form, would empower the State of Florida to take custody of kids 'subjected' to gender affirming care, the claim is "True."
