Transgender Family Law

• DOI: http://doi.org/10.1111/fcre.12357
• Published date: 01 July 2018
• Date: 01 July 2018
• Author: Shannon Price Minter

TRANSGENDER FAMILY LAW

Shannon Price Minter

Transgender people face unique issues in parentage, custody, and divorce cases. Many transgender people are raising children

or wish to do so. This article examines the main legal issues facing transgender people who become parents by giving birth

or impregnating a partner, through assisted reproduction, through marriage, by raising a child, or through adoption. In the

past, some courts viewed a parent’s gender transition as a sufficient reason to terminate parental rights. Today, the law has

shifted to provide much more security for transgender parents, though significant bias still remains, particularly in divorce

and child custody cases. In addition, many states have not yet fully addressed how to determine the legal parentage of chil-

dren born through assisted reproduction. I analyze the legal landscape for transgender parents and spouses and offer critical

suggestions to ensure that transgender people are able to protect their families and their parental rights.

Key Points for the Family Court Community:

•There is no evidence that a person’s transgender status affects his/her ability to be a good parent.

•A transgender person may become a parent by giving birth or impregnating a partner, through assisted reproduction,

through marriage, by raising a child, or through adoption.

•Increasingly, transgender people are counseled about their ability to preserve their reproductive capacity by preserving

either sperm or eggs before undergoing medical treatments for gender transition.

•Many transgender people use assisted reproduction to have children.

•The use of surrogacy is especially important for some transgender women who are partnered with or married to a man.

•Transgender people who wish to use surrogacy to have a child should understand the law in their state and followany

legal requirements to ensure that surrogacy agreements will be upheld.

•For all transgender parents using assisted reproduction, it is important to enter into a written agreement with the other

parent, if any, and with the donor or surrogate, if any, and to sign medical or legal consent forms recognizing their

intent to be a parent.

•Transgender parents still face considerable bias in child custody cases.

•Even in our modern era of no-fault divorce, a court may view a transgender spouse as culpable simply for coming out

as a transgender person and that perception may lead to serious adverse consequences in the divorce.

•Many judges continue to view a spouse’s decision to undergo a gender transition as a legitimate reason to award the

other spouse more marital property or spousal support.

•Courts also frequently disregard the negative economic impact of transitioning for many transgender people, ordering

a transgender parent or spouse to pay support based on their pretransition income rather than their cur rent earning

power, which may be greatly reduced.

•Alternative dispute resolution may be particularly beneficial for transgender clients.

•As a result of the Supreme Court’s ruling in Obergefell v. Hodges, transgender spouses no longer must fear that their

marriages may be nullified by a court or that their parental rights may be stripped away.

Keywords: Alternative Dispute Resolution; Assisted Reproduction; Bias; Child Custody; Divorce; Gender Dysphoria;

Obergefell; Surrogacy; and Transgender.

Transgender people have made remarkable legal and social progress in the past two decades. For

the first time in our nation’s history, our most important social institutions—from schools to prisons

to workplaces to the U.S. military—are grappling with how to acknowledge and include transgender

individuals. Transgender people are increasingly active and visible in every segment of society:

teaching, running for office, serving as judges, competing as Olympic athletes, and starring in

movies and on television. From small towns to our nation’s capital, transgender advocates have

created a vocal social movement for inclusion, acceptance, and legal equality.

Correspondence: sminter@nclrights.org

FAMILY COURT REVIEW, Vol. 56 No. 3, July 2018 410–422

© 2018 Association of Family and Conciliation Courts