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November 12, 2021 Columns

Introduction to Family Law Quarterly Volume 55, Number 1 (2021)

By Lisa F. Grumet

This issue features Exploring Identity, a groundbreaking article on custody disputes involving transgender or nonbinary children by Professor Marie-Amélie George of Wake Forest University School of Law. The article assesses how courts approach conflicts between parents who disagree over whether or how to support children who are exploring their gender identity. The author reviews scientific literature concerning children and gender identity, as well as state and local antidiscrimination laws. She shows how familiarity with the scientific literature is important so that courts do not make decisions based on incorrect assumptions about gender identity and childhood development. Furthermore, she discusses custody disputes in other contexts relating to identity, including race, sexual orientation, and religion. The article includes tables analyzing custody disputes involving gender expansive children; biracial or multiracial children; gay, lesbian, and bisexual children; and children whose parents follow different religious practices.

Professor George discusses the importance of allowing children to explore their gender identity. She explains why courts should focus on providing an opportunity for exploration, rather than seeking to determine how any particular child may ultimately identify. The author concludes by recommending that judges support gender identity exploration when conducting a best interests analysis and that state legislatures amend their custody determination laws to “explicitly recognize children’s need to explore their gender identity.” Her discussion, analysis, and extensive research provide an important resource for family law attorneys, judges, and policymakers, as well as scholars in this area.

This issue also includes the second-place winner of the ABA Family Law Section’s 2020 Howard C. Schwab Memorial Essay Contest. Germline Editing Using CRISPR: Why a Moratorium Is Not the Solution, was written by Daniel J. Malkin, who earned a Ph.D. in Molecular Toxicology from U.C.L.A. in addition to a J.D. at Pepperdine Caruso School of Law. The article provides a fascinating overview of the debate over CRISPR gene-editing technology and whether it should be used (together with in vitro fertilization (IVF)) to modify reproductive cells in order to address genetic conditions or diseases before a child is born. Mr. Malkin provides some historical context and notes that some arguments made today by opponents of using this technology are similar to arguments made several decades ago by opponents of in vitro fertilization. He compares regulation of the use of CRISPR and IVF and discusses ethical issues relating to both procedures. He concludes that “[u]sing CRISPR to repair germline mutations that cause serious congenital single-gene diseases is ethically justifiable” and should not be prohibited.

Thank you to our authors for their meaningful contributions to the field of family law.

Lisa F. Grumet, Editor in Chief

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

By Lisa F. Grumet

Lisa F. Grumet is the editor in chief of Family Law Quarterly; director of the Diane Abbey Law Institute for Children and Families at New York Law School; and visiting associate professor of law at New York Law School.