SMU Law Review
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
Contemporary custody law purports to have moved beyond dominant gendered understandings of parental roles and family life by resolving disputes under the ostensibly neutral “best interest of the child” (BIC) standard rather than through the explicitly gendered rules that once governed custody adjudication. This Article examines custody disputes involving transgender parents to reveal a structural feature of custody adjudication under the BIC standard, namely the continued reproduction of dominant gender norms under the guise of a neutral legal standard.
Analyzing transgender custody cases alongside scholarship documenting how the BIC standard’s indeterminacy has enabled bias against other marginalized parents, the Article identifies a recurring legal narrative that constructs a parent’s transgender identity as a threat from which children must be protected. The BIC standard thereby enables courts to translate cultural anxieties about gender nonconformity into legally cognizable harms, mobilizing stereotypes of deception, danger, and irresponsibility to justify restrictions on transgender parents’ custody and visitation rights as serving their child’s interests. As the Article demonstrates, this threat logic persists even as doctrine has evolved from voiding marriages involving a transgender parent as unlawful same-sex unions and imposing per se restrictions based on transgender identity, to the contemporary nexus test, which permits judicial reliance on a parent’s transgender identity when it is shown to negatively affect the child.
The Article makes sense of this dynamic through Reva Siegel’s concept of “preservation through transformation.” Applying Siegel’s framework to transgender custody cases extends and sharpens earlier feminist critiques of the BIC standard by exposing it not merely as gendered in operation, but as a mechanism through which dominant gender norms are preserved, reproduced, and legitimized. The Article argues that the BIC’s indeterminacy and claim to neutrality allow courts to penalize parents who deviate from prevailing gender norms while justifying such interventions in more modern and socially acceptable terms, namely protecting children. In this sense, the shift from explicitly gendered custody rules to the BIC standard, as well as the doctrinal evolution from the per se rule to the nexus test, has reduced overt discrimination while rendering the continuing influence of gender norms in custody adjudication more difficult to identify and contest.
Understanding this dynamic as a process of preservation through transformation also illuminates the limits of existing reform proposals that seek to render a parent’s gender nonconformity legally irrelevant to custody determinations. While a gender-blind approach may prevent a parent’s transgender identity from supplying the purported nexus of harm, it does little to challenge the underlying threat logic that continues to structure custody adjudication involving transgender parents. The Article therefore explores a more transformative approach that recognizes gender nonconformity as a potentially valuable aspect of parental care and, in doing so, seeks to disrupt the process through which dominant gender norms are preserved in custody adjudication under the BIC standard.
Recommended Citation
Ariël Decoster,
Preserving Gender Norms Through Harm-based Reasoning: The Best Interest of the Child Standard and Transgender Parents,
79
SMU L. Rev.
677
(2026)
