Transparent: when legal fictions and judicial imagination make facts disappear, they enforce transphobic discrimination.

AuthorHammer, Gail
PositionIntroduction through Conclusion, p. 119-162


Kim (1) is a transgender parent who was ordered to pay more in child support than she (2) earned. When she could not pay, a court found her in contempt and put her in jail. In jail, she was dressed in a woman's uniform, paraded through every part of the men's population, and then held in solitary confinement in the wing for violent male offenders. Her story provides an example of how courts sometimes view legal fictions as more real than the facts of a person's life.

Legal fictions include presumptions, which are defined as "legal inference[s] or assumption[s] that a fact exists because of the known or proven existence of some other fact or group of facts." (3) When used appropriately, legal fictions can facilitate the law's legitimate purposes. However, when facts contradict legal fictions, facts should be considered, in order to temper the potential for resulting irrationality and injustice. Legal fictions impact specific groups disproportionately. This is particularly true for those whose experiences are outside judges' experiences.

This Article gives an example of this disproportionate impact and recommends that courts setting child support obligations consider discrimination in hiring as relevant to whether a parent is voluntarily unemployed when they decide whether to impute income to a parent. Part I demonstrates how multiple judicial officers' distraction, imagination, and misguided reliance on legal fictions, rather than on the facts of the individual's life, made injustice real in Kim's life. It attempts to understand judges' unarticulated reasoning through a re-created conversation. Part II discusses legal treatment of transgender people in general. Part III suggests changes in legal doctrine to promote clearer thinking and more rational decisions within the courts regarding the distracting and emotionally charged issues surrounding transgender individuals. Specifically, I suggest that the legal fiction that permits courts to impute income to unemployed parents should change to explicitly recognize discrimination in hiring. Courts should adopt an evidentiary rule accepting self-reports of gender identity. To facilitate legal thinking that transcends simplistic binary models of human experience, judges should make an effort to understand more about trans people. Judges should also adopt a simple schema for understanding the distinct categories of sex, gender identity, gender expression, and sexual orientation. Judges should be evaluated according to their ability to prioritize facts (here, discrimination against transgender people in hiring, which leads to unemployment) over legal fictions (here, a parent able to work but not working is voluntarily unemployed, rather than the target of discrimination in hiring). Finally, judges should be evaluated for their ability to prioritize facts over their own fears.

  1. Kim's Story

    Kim is a pre-operative (4) transgender Caucasian woman. I met her in rehearsal for The Vagina Monologues. (5) Kim's youngest daughter was with her, apparently comfortable with Kim's appearance as a woman, referring to her as "Dad." Kim's monologue was "They Beat the Girl Out of My Boy, Or So They Tried." (6)

    They assigned me a sex The day I was born. It's as random as being adopted or [as] being assigned a hotel room on the 30th floor. It has nothing to do with who you are Or your fear of heights. But in spite of the apparatus I was forced to carry around I always knew I was a girl. My mother was worried what people would think of her That she made this happen Until I came to church And everyone said you have a beautiful .... Daughter. I got to be soft I am allowed to listen I am allowed to touch I am able to To receive. To be in the present tense People are so much nicer to me now I can wake up in the morning Put my hair in a pony tail A wrong was righted. I am right with God. .... I live now in the female zone But you know how people feel about immigrants. They don't like it when you come from someplace else. Before she began presenting as a woman, Kim had depression and intrusive suicidal thoughts from the disconnection between her gender identity and her physical sex. (7) Her doctor medicated her, in an attempt to ameliorate the depression, but the medications never worked appropriately. Kim disclosed her female self-identity to her fiancee, a cisgender (8) woman, two years before their marriage. Two children were born of the marriage. Both were teenagers when I met Kim.

    During the beginning of the fifteen-year marriage, Kim dressed and presented as a male, and worked as a mechanic. Her highest yearly income never exceeded $23,016. She earned that amount in 1996, working full-time as a certified mechanic. As a result of physical injuries, 1996 was the last year in which Kim earned income above the poverty level for one person. Between then and when I met her, nine years later, her highest yearly income had barely reached one-half of her 1996 earnings.

    In 1997, Kim began seeing a counselor about her transgender identity. Her spouse (9) occasionally visited the counselor with her. The children received counseling of their own to address having a transgender parent.

    A year later, Kim began hormone therapy, but continued to dress and present as male. In the meantime, she had begun developing carpal tunnel syndrome, which impaired her ability to work full-time as a mechanic. As a result, her business faltered and ultimately went bankrupt in 2000. For the next two years, Kim worked part-time as a mechanic, earning $10 per hour. In late 2001, she was injured in a work-related automobile accident. She received a worker's compensation award of almost $25,000 and an award of $15,000 from the other driver's insurance, which she used to support her family.

    In 2002, Kim had neck and carpal tunnel surgeries. She spent months in rehabilitation. As a result of her injuries and surgeries, lifting and bending over, common activities for a mechanic, caused her severe pain. On August 1, 2002, Kim was fired. She did some light mechanic work from her home, but her earnings did not add up to a significant amount.

    That same year, Kim's brother-in-law died unexpectedly. His death made her realize life's fragility and preciousness. She could no longer afford to waste it. She began publicly presenting herself as a woman. Her depression and suicidal thoughts vanished. Kim talked with her daughters and told them she would support whatever name they wanted to call her. She suggested that they might even want to call her their aunt, so they could avoid potential social discomfort. They chose to continue calling her "Dad."

    Physically unable to perform full-time work as a mechanic, Kim knew she needed education to become more employable. In the fall of 2002, she enrolled in community college. She paid for college with student loans and used the remainder of her settlement awards, along with loans from her father, to support the family. Kim received her Associate of Arts degree in the summer of 2004. In the meantime, Kim's transition was too difficult for her spouse, who filed a petition to dissolve their marriage, requesting primary placement of the children, (10) child support, and spousal maintenance. (11)

    Kim sought additional work, unsuccessfully. She used employment agencies and temporary agencies to hunt for work. She placed twenty to thirty job applications per week. She sent resumes and applied for work online. She applied for positions from administrative assistant to fast-food worker. She applied to shopping malls, retail stores, restaurants, and call centers. If she had been offered a job at McDonald's, she would have taken it.

    However, Kim faced significant discrimination because she is visibly transgender. When she submitted applications online, she would get an interview. She said, "As soon as they see me, they thank me for coming in, and that's the last I hear from them. And I know I'm qualified for the job[.]" (12)

    Kim stayed in school, pursuing a bachelor's degree, and worked part-time at an auto repair shop. Her student loans brought in some income, but most of that was earmarked for tuition and other school-related costs. Kim's financial aid and student loan package was calculated to allow for less than $10,000 living expenses for the entire year. The student loans and financial aid were conditioned on her being a full-time student. If she dropped out of school, she would lose her main source of income and would be required to re-pay her student loans, at $500 per month.

    Washington law permits the court to impute income to a voluntarily unemployed or underemployed parent, and set a child support obligation based on the imputed income. (13) Income cannot be imputed to an unemployable parent. (14) The statute does not contemplate the possibility that a parent may be employable, but unable to find an employer to hire her. At a temporary orders hearing in August 2004, the Superior Court (15) commissioner (16) imputed Kim's net income to be $1,800 a month. Kim had never had a net income of $1,800 per month. The commissioner set a corresponding child support obligation at $994 per month.

    In Kim's case, the commissioner roughly based her findings on income information that was eight years old, and pre-dated Kim's injuries and resulting surgeries. The commissioner directed Kim to get a job and commented that Kim's education was a luxury. The commissioner ordered Kim to "dress as a male" during contact with the children. (17) Though she did not know the children in this case, the commissioner apparently assumed that, by definition, she knew what was best for the children, and that it would be best for the children to avoid confronting the complexity of their parent's transgender status. (18)

    Kim moved to revise (19) the commissioner's order. On September 30, 2004, the Superior Court judge upheld the commissioner's imputing income at $1,800 a month. (20) The judge upheld the...

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