THE FAMILY CORNER TRANSGENDER CHILDREN AND BEST INTERESTS OF THE CHILD - El Paso County Bar Association
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THE FAMILY CORNER
TRANSGENDER CHILDREN AND BEST
INTERESTS OF THE CHILD
Family law practitioners are seeing an increased amount of cases involving transgender and gender non-conforming
(TGNC) children in non-intact families. These cases may involve the non-affirming parent requesting that the TGNC
child reside primarily with the non-affirming parent to “fix” the child. Conversely, the case may involve the affirming
parent requesting that the TGNC child live primarily with affirming parent because the child has expressed that preference
and is suffering from stress with the non-affirming parent. The cases may also involve whether a TGNC child should be
permitted a name change over the objection of one parent, or whether it is permissible to allow a child to identify as a
different gender over the objection of a parent.
Recently, an article in the Family Court Review, an interdisciplinary journal from The Association of Family and
Conciliatory Courts, discussed trends and recommendations for non-intact families with TGNC children. Of note, the
article related that TGNC children have a higher risk of depression and suicidal ideations. To combat this, research has
shown that the factor that is “critically important to the well-being of TGNC children” is family acceptance, because
family acceptance “serves as a buffer against the stigma…and the rejection” that TGNC children may face. Katherine
A. Kuvalanka, Camellia Bellis, Abbie E. Goldberg, Jennifer K. McGuire. An Exploratory Study of Custody Challenges
Experienced by Affirming Mothers of Transgender and Gender-NonConforming Children. Family Court Review: An
Interdisciplinary Journal (2019).
A parent may want to argue that a TGNC child is gender non-conforming because of the other parent’s parenting style, and
request that the court grant him or her primary custody of the child to “fix” the child. However, experts have found that
parenting style has little to no impact on the gender identity of children. Id.
With this research in mind, the “best interest of the child” factors may be particularly important to examine in cases
involving non-intact families and TGNC children. The “best interests of the child” statute, C.R.S 14-10-124, lists factors
that the courts and attorneys should consider in resolving disputes regarding parenting time-related issues.
One factor the court considers in determining parenting time is the “mental health…of all individuals involved.” Although
attorneys commonly focus on mental health issues for the parents as it pertains to parenting time, the child’s mental health
...
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THE FAMILY CORNER
should also be considered. For TGNC children, this factor is especially important, given the increased rate of depression
and suicidal ideations for TGNC kids. Ideally, both parents accept their TGNC child, and in this situation, then perhaps
an equal parenting schedule could be in the child’s best interest. However, in nonintact families where the parents are in
conflict over the TGNC child’s gender identification, the research at this juncture seems to indicate that it may be in the
TGNC child’s best interest, at least in terms of the child’s mental health, to have more parenting time with the parent that
accepts the TGNC child. 1
In addition to developing a parenting plan that promotes family acceptance, given the higher rate of depression and
suicidal ideations for TGNC children, attorneys and the courts should also consider orders that provide for clinical services
for the TGNC child and even the parents.
This article is a merely a brief overview with some commentary on an extremely complex issue. Parents of TGNC children,
and their advocates, should also enlist the advice of medical and clinical professionals to ensure the right parenting
schedule and decisions are made for their child by the parties and the courts.
arbitrator after the award is final should also be included.
1. There may be some obvious limitations to the conclusion that a TGNC child should always remain with the parent that affirms
their gender non-conformity. For instance, if the affirming parent struggles with drug abuse that impacts the TGNC child’s safety,
this could be a reason not to grant primary parenting time for the affirming parent and the TGNC child
CBA Government Counsel
& Young Lawyer Division
happy hour
March 13 at 5:30 PM | Oskar Blues
Join us for a free drink and networking. In
addition to networking, the Government Counsel
will discuss government job opportunities.
Special Guest: Wynetta Massey, City Attorney
Host: Joi Kush, CBA YLD Chair
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THE EMPLOYMENT CORNER
PROPOSED COLORADO EQUAL PAY LAW DIFFERS IN ONE
BIG WAY FROM ITS FEDERAL COUNTERPART
On January 17, 2019, Colorado lawmakers introduced the Equal Pay for Equal Work Act (SB-19-085) (the “Bill”). The Bill
is an aggressive equal pay law that would provide employees with a direct cause of action against their employers.
The Bill would prohibit employers from discriminating between employees on the basis of sex, or a combination of sex
and another protected status, by paying an employee of one sex a wage rate less than the wage rate paid to an employee of
a different sex for substantially similar work. The Bill defines “sex” to mean an employee’s gender identity. The Bill defines
“substantially similar work” to mean work that is similar based on a composite of skill, effort, and responsibility, regardless
of job title.
The Bill would provide three exceptions (affirmative defenses) to its equal pay requirement where an employer can dem-
onstrate that the wage rate differential is based on a seniority system, a merit system, or a system that measures earnings by
quantity or quality of work. The Bill would further mandate that each system relied upon to justify a wage rate differential
be applied reasonably and account for the entire wage rate differential.
The Bill would strip the Colorado Department of Labor and Employment of its authority to adjudicate wage discrimina-
tion complaints and provide employees with a direct cause of action against their employers. The Bill states that a cause of
action would accrue on each occasion that a discriminatory wage is paid (i.e., each payday). In any suit, the impacted em-
ployee would be able to demand a trial by jury and seek back pay for up to six years plus liquidated damages and attorneys’
fees.
The Bill contains a number of other provisions that would outlaw employers from asking prospective employees about
their wage rate histories and demanding that current employees waive rights to discuss their wage rates and benefits.
The Bill is similar to the Equal Pay Act (“EPA”)—a federal law that requires men and women be given equal pay for equal
work. However, there is at least one stark difference between the two. The EPA contains a fourth affirmative defense avail-
able where an employer can establish that a wage differential is “based on any factor other than sex.” 29 U.S.C. § 206(d)(1).
The United States Supreme Court has stated that the EPA’s fourth affirmative defense “was designed…to confine the appli-
cation of the [EPA] to wage differentials attributable to sex discrimination. [EPA] litigation, therefore, has been structured
to permit employers to defend against charges of discrimination where their pay differentials are based on a bona fide use
...
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THE EMPLOYMENT CORNER
of ‘other factors other than sex.’” Cnty. of Wash. v. Gunther, 452 U.S. 161, 170 (1981).
Thus, if the Bill is enacted as written, an employer may violate the law even though its wage rate differential is based upon
a bona fide factor other than sex. For example, federal courts have ruled that “factors other than sex” justifying a wage
differential may include a gender-neutral pay classification system, an individual’s former salary, or a company’s decision
to pay an elevated salary to an applicant after he rejected a lower offer. See Reiser v. QEP Energy, 776 F.3d 1191, 1198 (10th
Cir. 2015); Brickey v. Emp’rs Reassurance Corp. 293 F. Supp. 2d 1227, 1233 (D. Kan. 2003); Clayton v. Vanguard Car Rental
U.S.A., Inc., 761 F. Supp. 2d 1210, 1273-74 (D.N.M. 2010). Under the Bill, these gender-neutral factors may not justify a
wage rate differential leaving an employer potentially liable for back pay, liquidated damages, and attorney’s fees.
The Bill has strong support amongst Colorado lawmakers who believe an aggressive law is needed to address the gen-
der pay gap. However, employers are concerned that passage of the Bill will result in an influx of litigation and un-
certainty. What do you think? You can read the full text of the Bill here: https://leg.colorado.gov/sites/default/files/
documents/2019A/bills/2019a_085_01.pdf.
On the
Lighter Side
Drawn by Cartoonist
Jonny Hawkins
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THE IMMIGRATION CORNER
The Immigration Bar is pleased to announce a CLE lunch and round table with Bryon Large, of the Office of
Attorney Regulation Counsel, Monday March 18, 2019 at 11:30-1:00 at JACK QUINN’S downtown Colorado
Springs. The program will cover Colorado’s new rule 1.5(h), which discusses “flat fee agreements”, and this rule’s
application to Immigration lawyers. The program will outline how flat fee agreement work under the new rule,
how a retainer for a flat fee should be handled, calculation of fees in the event representation terminates prior
to completion of the case, and will provide a sample Flat Fee Agreement approved by the Colorado Supreme
Court. The CLE will be worth 1 general credit and 1 ethics credit.
BRYON M. LARGE
Bryon M. Large is an Assistant Regulation Counsel with the Colorado
Supreme Court Office of Attorney Regulation Counsel. He received his Juris
Doctor degree from the University of Denver and his undergraduate degree
in Spanish from the University of New Mexico. Prior to joining the office,
Bryon worked in private practice as an immigration attorney for over nine
years.
Bryon serves on the Ethics Committee for the American Immigration
Lawyers Association (AILA), where he previously served five years on the
Board of Governors. He is a past Chapter Chair of the Colorado Chapter
of AILA, a past Chair of the Immigration Law Section of the Colorado Bar
Association, and is a Past President of the Colorado LGBT Bar Association.
In 2014, Bryon was honored by the Colorado LGBT Bar Association as
the Attorney of the Year. Bryon’s passion in life is being a father to his two
children.
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THE SOLO/SMALL FIRM CORNER
Erika Holmes and Lauren Lester presented an Introduction to Modern Representation to the Solo/Small Firm Section
during their monthly luncheon on February 5, 2019.
Erika Holmes is the founder of ELHolmes Legal Solutions, LLC, a modern law practice focusing on family law and attorney
ethics and regulation, and authored the article “Modern Representation: A Win-Win for Clients and Lawyers” as part of
the Access to Justice Series in the Colorado Lawyer (March 2017). Lauren Lester practices family law with her modern law
firm of Lester Law, LLC, and is the current Chair of the Colorado Bar Association’s Modern Law Practice Initiative and a
member of the Professionalism Coordination Council.
The mission of the Modern Law Practice Initiative is to revolutionize the legal profession by enhancing access to
innovative, client-driven, and cost-effective legal services that empower lawyers to build thriving law practices.
Erika and Lauren focused their presentation on the 4 Pillars of Modern Representation: Empowerment; Focus;
Technology; and, Value. “Empowerment” emphasizes client involvement in their legal representation and allowing a lawyer
to develop a customized practice. “Focus” provides the client with creative and flexible solutions to their legal issues and
affords the lawyer the opportunity to practice with a purpose. “Technology” can provide the client with greater and more
meaningful access to the legal services provided while allowing the lawyer to deliver efficient and effective legal services.
Finally, “Value” focuses on providing affordable legal services to the client and a generating a profitable practice for the
lawyer.
Participants engaged in a lively discussion about pricing legal services, fee arrangement options, engagement agreements
and the goal of “killing the billable hour.” Materials included an extensive list of technology service providers which would
be helpful for any legal practitioner who desires to adopt all or just some of the components of Modern Representation.
PLEASE JOIN US FOR
SOME UPCOMING LOCAL
EVENTS!
- “New Member Drive Happy Hour”, Wednesday,
March 6, 2019, 5:00 p.m. to 7:0 p.m. N3 Taphouse
- “Evidence CLE”, Friday, April 19th, 12:00 p.m. to
1:15 p.m. at the Office of the District Attorney, 4th
floor conference room, 105 East Vermijo
El Paso County Bar Association
Southern Colorado High School Mock Trial
Congratulations to Pueblo West High
School, who will be sending two teams
to the Colorado State Mock Trial
Tournament! The tournament is March
8-9 in Jefferson County.
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