A recently introduced Colorado bill seeks to require judges to consider "misgendering" as a form of "coercive control" during child custody disputes. If passed, the bill would pose a major threat to parents' First Amendment rights and prevent judges from considering the individual circumstances surrounding family conflict over a child's gender identity.
The bill, the Kelly Loving Act, requires that "when making child custody decisions and determining the best interests of a child for purposes of parenting time, a court shall consider deadnaming, misgendering, or threatening to publish material related to an individual's gender-affirming health-care services as types of coercive control." Since the bill defines coercive control as a "pattern of threatening, humiliating, or intimidating actions, including assaults or other abuse, that is used to harm, punish, or frighten an individual," it would essentially force judges presiding over custody disputes to consider it form of child abuse when a parent refuses to use a child's chosen name.
"In some custody disputes, 'misgendering' or 'deadnaming' could be part of the kind of 'coercive control' courts can consider—a pattern of threatening, humiliating, or intimidating actions used to harm, punish, or frighten," Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, tells Reason. "But treating that speech as inherently coercive or abusive, regardless of context, risks punishing parents simply for disagreeing with the state's preferred views on gender. That veers into constitutionally suspect territory."
