Maine bill doesn’t allow state to take trans kids, it affects custody jurisdiction

When you think of Maine, you may think of lobster and cold beaches — not the state coming to take away kids. That is, until several conservative groups began posting warnings on X that a bill being considered in the state Legislature could do just that.

On Jan. 16, the conservative X account Libs of TikTok wrote, "BREAKING: New proposed bill in Maine says the state can take custody of a kid if the parents oppose s*x change surgery and the chemical castration of their kids," followed by the email addresses of several state legislators. The post got a "!!" reaction from X owner, Elon Musk.  

Other conservative and anti-LGBTQ+ groups including Gays Against Groomers and Moms for Liberty shared similar posts about the Maine bill. 

But is the Maine Legislature really trying to pass a bill that would let the state take kids away from their parents and into government custody if the parents don’t consent to those kids accessing gender-affirming medical care? No. The reality is much less dramatic — the bill pertains to interstate child custody jurisdiction law, or which court in which state can hear a case. 

(Screenshot of post on X)

We have covered this topic before, when changes to similar state laws were proposed in Florida and California. In both cases, people confused the concept of taking "jurisdiction" with taking "custody." 

 Maine’s House Judiciary committee is scheduled to consider the bill Jan. 25.

Libs of TikTok did not respond to a request for comment. 

The Libs of TikTok post included a screenshot of the bill summary for Legislative Document 1735 (L.D. 1735), titled, "An Act to Safeguard Gender-affirming Health Care." The legislation was introduced last session on April 20, 2023, but was carried over into 2024. 

The bill’s text is very similar to the bill introduced and passed in California that aimed to turn the state into a "sanctuary" state for gender-affirming care in response to bans passed in 23 states. The Associated Press reported in 2022 that lawmakers in 19 states, including Maine, planned to file similar "trans refuge" bills. 

Gender-affirming care is an individualized approach to health care that supports transgender and nonbinary people’s gender identity and it can go beyond medical interventions. For the small population of transgender youth, this mainly involves support through social transition, puberty blockers and hormones as children become adolescents. Gender-affirming surgery is rarely performed on minors.

L.D. 1735 proposes changes that address how the medical system would respond to civil and criminal subpoenas if another state’s law criminalized gender-affirming care. But the section of the bill the viral X post highlighted relates to child custody law, and how states decide what court will hear a case.

The Maine bill would alter the Uniform Child Custody Jurisdiction and Enforcement Act, a section of the law that outlines how different states determine who is authorized to make a child custody decision. 

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The Uniform Law Commission, a nonprofit organization working for the uniformity of state laws, drafted the act in 1997. Every state except Massachusetts has adopted it.

The act assigns a "home state" to children involved in custody orders and aims to prevent states from having competing custody orders. Home states are typically where the parents divorced, where the first custody order was issued or where the child lived for six months before a custody proceeding. 

That "home state" remains in charge of the case unless another home state is legally established. Generally, if parents want to modify custody orders, they must do so in the child’s home state. 

Maine, like the other states with this uniform law, has a caveat to account for extreme circumstances. In instances of abandonment, mistreatment or abuse, the law says a state other than a child’s home state can claim "temporary emergency jurisdiction," and have short-term authority to make custody decisions.

L.D. 1735 would amend that portion of the law to outline another qualifying emergency circumstance: situations in which a parent — or person acting as a parent or guardian — and child come to Maine aiming to receive gender-affirming care.

The post conflates the legal meaning of "jurisdiction" and "custody." 

"These are separate and completely distinct notions," Joe Lewis, a family law attorney in Portland, Maine, said in an email. 

Jurisdiction refers to which court has the authority to hear a case. L.D. 1735 would allow a court to take temporary jurisdiction over the legal case, not custody of the child.

"As I read the proposed language, there is nothing in (the bill) that would permit the state to take custody of a child as a function of that child's gender-affirming care, needs, or desires," Lewis said.

The Uniform Child Custody Jurisdiction and Enforcement Act applies to custody disputes between parents, and L.D. 1735 does not propose changing the section of state law that outlines circumstances in which a state can take custody of a child. 

The powers a court can exercise under temporary emergency jurisdiction are narrow, experts said. Only custody agreements that originated outside of Maine are subject to temporary emergency jurisdiction — and only for a court-specified period, not forever. The other parent is entitled to know about the court proceedings and the outcome. 

If a Maine court takes emergency jurisdiction, the law states it must contact the home state court to "resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order." 

If a parent with a valid custody order files a motion in the home state, that home state jurisdiction trumps Maine’s. The bill does not alter the underlying principle that a home state order must be recognized and enforced in Maine. 

If the child has no "home state" or existing custody order, a temporary custody order could last longer, experts said. 

Libs of TikTok said a "new proposed bill in Maine says the state can take custody of a kid if the parents oppose" gender-affirming care. 

That’s not right. A bill filed in Maine’s Legislature relates to how jurisdiction in interstate child custody proceedings is determined; it does not change child welfare law or enable the state to take children away from parents and into government custody for not affirming the children’s gender identity or denying the children gender-affirming medical care.

The bill would alter "temporary emergency jurisdiction," which grants courts temporary control over custody cases, not the children themselves. A valid custody order from the child’s home state would supersede a temporary order.

The claim that Maine’s L.D. 1735 would let the state take custody of a child if the parents oppose gender-affirming care conflates "jurisdiction" with "custody." We rate this claim False.