Waldlaw Blog

Sunday, April 16, 2006

Transgender Family Law -- The New Frontier?

One thing I love about my law practice is that every time I think I've figured out the answers to all the many questions that come up in my work representing contemporary families, someone asks me a question I never even thought of. Like: "I am a straight single man, and I want to have children. My best friend is a happily married woman, but her husband doesn't want any more kids. We want to have a child together, but we want me to be the legal father instead of her husband. Can you help us?" (I was asked this one this fall.) Or: "My partner and I have created embryos using my partner's eggs, fertilized with donor sperm, and we had some of the embryos implanted in each of us. We now are each pregnant, and the babies we are carrying will be genetic fraternal twins. How do we make sure that both of us are legal parents to both babies." (I actually have been asked this one 4 separate times, by 4 separate couples.) In each of these situations, I have been able to figure out the answers by simply applying established law to a new set of facts -- or, to put it differently, using logic to stretch existing knowledge in a new direction. But in the area of transgender family law, we are still encountering questions that honestly don't have answers. Like: In California, heterosexual couples can get married but they can't register as domestic partners. Same-sex couples can register with the state as domestic partners, but can't get married. So if a same-sex couple is registered as domestic partners, then one of them transitions to a different gender (making them a different-sex couple), does this invalidate their domestic partnership? Should they dissolve their partnership and get married instead? Or is the partnership valid because it was valid when it was entered into? Since I primarily work in the area of parentage, I see the befuddlement of the system most in figuring out how to adjudicate parentage for transgender parents. Many transgender folks are comfortable living with a level of ambiguity about their genders. Increasingly, some transgender folks are choosing not to identify either as "male" or "female," instead prefering to identify as "transgender." But the court system doesn't work well with such ambiguity: when it establishes or confirms a parental relationship, it wants to know: "is this a mother or a father??" The answer "This is a parent" doesn't necessarily work in court. In the parentage arena, I have been asked to think about transgender issues in three different contexts: in the context of a dissolution of the parents' relationship, where the usual custody issues are impacted and complicated by the gender transition of one of the parents; in the context of a couple having children together, where one of the parents-to-be is transgender or transitioning and we need to figure out how best to establish legal parentage; and in the context of parents dealing with their confusion and concerns around gender identity issues in their minor children. Because I am one of the few attorneys who has any expertise at all handling transgender family law cases, I have actually done several trainings on transgender issues for family court personnel and other attorneys -- and my experience is that these issues push people's buttons in a way few other things do. Transgender parentage is the issue that still leaves people saying ... "but think about the children!!" And of course, we should think about the children. There is no doubt that having a parent transition is likely to be stressful for kids. But having a parent live with the severe depression and profound identity issues that generally precede gender reassignment surgery is not good for children either. If transitioning leads to a happier, better-functioning parent, that is likely to be better for children in the long run. Transgender issues are coming up increasingly in the family courts, and we are all going to have to figure out how to address them with intelligence and compassion. It's a good thing we have organizations like NCLR (www.nclrights.org) and the Transgender Law Center (http://www.transgenderlawcenter.org/) to help us think all of this through!


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