JD Vance misrepresents Minnesota law on kids seeking gender-affirming care

Sen. JD Vance, R-Ohio, criticized his vice presidential campaign opponent, Gov. Tim Walz, D-Minn., about signing a law that seeks to protect parents who bring their children to Minnesota for gender-affirming care.

"I think it’s pretty weird to try to take children away from their parents if the parents don’t want to consent to sex changes," Vance said Aug. 7 at a campaign event in Eau Claire, Wisconsin. "That’s something that Tim Walz did."

Other conservatives made similar claims. Fox News host Jesse Watters said the law Walz supported "removes a child from their parents’ home if the parents don’t want to castrate them." Political commentator Megyn Kelly wrote on X that the law "lets the state take away (your) kids" if you don’t agree to gender-affirming care.

Walz has taken action to support access to gender-affirming care in Minnesota. But Vance’s claim mischaracterizes the reach of the Walz-approved law on parental custody.

When PolitiFact contacted Vance’s team for comment, spokesperson Luke Schroeder said, "The letter of this law is clear: a parent who dissents from their child receiving so-called 'gender-affirming care' can lose custody."

The amended law does not do that, the bill’s sponsor and legal experts said. Before it was passed, it was nicknamed the "Trans Refuge Bill." It establishes which state court has jurisdiction over multi-state child custody disputes that involve gender-affirming care. 

For example, as Minnesota family law practitioner Lilie McRoberts described to PolitiFact, what happens if a parent brings a child to Minnesota to obtain gender-affirming care against the wishes of the other parent who lives in a different state? 

If the child is the subject of a custody order in another state, that state’s courts would have the final say on custody. The law Walz signed would grant Minnesota courts only temporary emergency jurisdiction. That means a Minnesota court could hear the case and issue a temporary custody order with a short-term expiration date, but it wouldn’t be able to change existing custody orders from another state. 

A temporary custody order would allow a parent to temporarily exercise authority in Minnesota to provide for the child’s needs, McRoberts said. 

The law would neither "take away" a parent’s custody rights, nor would it authorize the government to take custody of a child just because a parent objects to gender-affirming care.

PolitiFact has fact-checked similar statements about legislation in California, Maine and Florida and found them to be false or misleading. 

In April 2023, Walz signed into law House File 146. The law, nearly identical to one passed in California, amends the state’s Uniform Child Custody Jurisdiction and Enforcement Act. It’s a section of law adopted by 49 states that aims to prevent competing child custody orders by outlining how states determine which courts can decide child custody matters. 

"In simple terms, the UCCJEA just helps figure out which states’ courts have jurisdiction (that is, the power to hear the case) in interstate child custody disputes between parents," Courtney G. Joslin, a University of California, Davis professor of family law and sexuality, gender and the law, told PolitiFact in an email. "It has nothing to do with when a state can take custody of a child."

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When parents divorce, a court in the child’s "home state" — where the child lived with a parent or a guardian for at least six months before the custody proceeding — gets priority in deciding initial child custody. 

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. 

But the Uniform Child Custody Jurisdiction and Enforcement Act also has a provision in case of emergencies, such as when a child has been abandoned or needs protection from possible mistreatment or abuse. In emergencies, a court that isn’t in the child’s home state can take "temporary emergency jurisdiction."  House File 146 updated this section and added a new emergency circumstance when Minnesota courts can have temporary emergency jurisdiction: If the child "has been unable to obtain gender-affirming health care" in another state.

But under temporary emergency jurisdiction, a court can issue only temporary custody orders with short-term expiration dates and must immediately communicate with the home state. And a Minnesota court couldn’t change a preexisting home-state issued custody order.

That means that parents who live outside of Minnesota who don’t want their children to get gender-affirming care can still bring a custody case in their home state, McRoberts told PolitiFact. "There is no way that Minnesota can get continuing exclusive jurisdiction, only temporary emergency jurisdiction," McRoberts said, "so Minnesota could not negatively affect either parent’s custody long term."

If a parent in another state doesn’t challenge a temporary order, that order could become permanent, McRoberts said. But this scenario also was possible before House File 146 passed.

The law enables Minnesota courts to hear custody cases and issue temporary custody orders in cases in which a parent brings a child to Minnesota to seek gender-affirming care. 

"The bill does not allow children to be removed from their parents custody," bill co-sponsor Rep. Leigh Finke, D-St. Paul, told PolitiFact. "There is no such provision or anything like it." 

Courts won’t automatically award custody to the parent who brought the child to Minnesota for gender-affirming care, experts said. Courts will decide based on evidence presented about what is in a child’s best interests. 

"There’s nothing there that says the court has to decide one way or the other. It would apply the ordinary custody standards at that point," June Carbone, University of Minnesota chair in law, science and technology and a family law expert, told PolitiFact.

Vance said Walz enacted a law that would "take children away from their parents if the parents don’t want to consent to sex changes."

The law Walz signed, House File 146, does not do that,  the bill’s sponsor and legal experts said.

It amended parts of the Uniform Child Custody Jurisdiction and Enforcement Act to enable Minnesota courts to hear custody cases and issue temporary custody orders in cases in which a parent brings a child to Minnesota to seek gender-affirming care.

If a custody order exists in another state, Minnesota courts can issue only temporary orders.

Having jurisdiction over a custody case doesn’t mean the state takes custody of a child. It also does not mean a court definitely will rule against a parent who objects to the child seeking gender-affirming care. Courts award custody based on evidence presented about what is in a child’s best interests.

We rate this claim False.

PolitiFact Senior Correspondent Amy Sherman and Staff Writer Madison Czopek contributed to this report.