Claim: Megyn Kelly claimed that Minnesota courts can take custody away from parents who refuse their children access to gender-affirming healthcare.
Fact: Minnesota courts are not authorized to take custody away from parents who refuse their children access to gender-affirming healthcare. The new amendment gives courts the ability to resolve such disputes.
On 27 April 2023, Tim Walz, governor of Minnesota, signed HF 146, also known as the Trans Refuge Bill, into law. The description of the new law states, “child custody and child welfare provisions amended.” This refers to clause 518D.204 that talks about the conditions under which a Minnesota court can exercise temporary emergency jurisdiction. This refers to Minnesota courts exercising the ability to hear child custody cases and “resolve disputes” between parents. It also includes Minnesota courts being able to issue “a temporary custody order with a short-term expiration date,” but this would not terminate a parent’s custody rights or give custody of a child to the government.
Prior to the passing of this law, Minnesota courts could exercise temporary emergency jurisdiction only if a child had been “abandoned” or the child, its sibling, or parent “is subjected to or threatened with mistreatment or abuse.” The Trans Refuge Bill amended this clause by adding a condition that states temporary emergency jurisdiction can be exercised if “the child has been unable to obtain gender-affirming health care.”
However, this statement has been misconstrued to mean that courts in Minnesota can assume custody of a child seeking gender-affirming healthcare, while terminating the parents’ custody of that child.
A video clip (archive) of American media personality Megyn Kelly on the ‘Tucker Carlson Show’ went viral on X recently. In it, she claimed that, under the new law passed by Governor Tim Walz, Minnesota courts could take custody of children who were refused gender-affirming healthcare by their parents.
The clip is from a longer interview (archive) with American political commentator Tucker Carlson, from September 2024.
In August 2024, at a rally (archive) in Bozeman, Montana, Republican presidential candidate Donald Trump said Tim Walz “signed a law letting the state kidnap children to change their gender.”
This was reiterated by Republican vice presidential candidate JD Vance in an interview (archive) with ABC News, and at an event (archive) in Mesa, Arizona in August and then again in September 2024, respectively.
Fact or Fiction?
Speaking to Kat Rohn, executive director of the LGBTQ+ advocacy organization OutFront Minnesota, the Washington Post (archive) noted that this amendment to the law would give courts “the ability to resolve disputes when parents disagree on whether their child should receive gender-affirming care; it does not remove custody from parents who decline such care.”
This was corroborated in a fact-check published by the AFP (archive), who spoke to Courtney Joslin, a professor at University of California Davis, specializing in gender, sexuality, and the law. AFP quoted Professor Joslin as saying that, “It [the new law] does not set forth substantive rules for how to allocate custody as between those parents. And, it does not address in any way when state officials can take custody of a child away from a parent.”
There is an aspect of the new law that mentions a child’s removal from its parents, but it is in the context of anti-gender affirmation healthcare laws in states other than Minnesota. According to this aspect of the law, if a state other than Minnesota authorizes a state agency to remove a child from its parent on the basis of that parent providing the child with access to gender-affirming healthcare, that would be “against the public policy of this state [Minnesota] and must not be enforced or applied in a case pending in a court in this state [Minnesota].”
The law further states that “no foreign subpoena shall be recognized” if that subpoena seeks information about an individual or entity that provided a child or an adult with access to gender-affirming healthcare. This means that the state of Minnesota would not recognize any court summons from another state seeking to punish “patients, parents and providers” for seeking or providing gender-affirming healthcare.
Furthermore, Soch Fact Check found that Politifact (archive) had also investigated the claim and spoken to Minnesota-based family law practitioner Lilie McRoberts, who explained that, even if a Minnesota court issued a temporary custody order, it would only “allow a parent to temporarily exercise authority in Minnesota to provide for the child’s needs.” In this scenario, custody of the child would still remain with a parent and not be handed over to the government.
Virality
The clip of Megyn Kelly on X has amassed 71.1 million views and 60 K reposts.
It was also shared on X, here, here, here, here, here, here, here, and here.
A video of Kelly expressing similar sentiments regarding the Trans Refuge Bill on her show, The Megyn Kelly Show, was shared here, here, here, here, here, and here.
The full interview between Tucker Carlson and Megyn Kelly on YouTube has 861 K views and 58 K likes.
A clip of the interview on YouTube where Kelly talks about the Trans Refuge Bill has 1.1 million views and 57 K likes.
Conclusion: The law passed by Tim Walz does not authorize Minnesota courts to take custody of children whose parents refuse them gender-affirming healthcare.
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Background image in cover photo: Hindustan Times
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