TRANSPARENTHOOD.

Author:Katyal, Sonia K.
 
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Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law's treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or visitation, we find that the transgender parent loses their bid, sometimes even losing their right to be recognized as a parent. This absence of equal treatment is striking and deserving of analysis, particularly given the law's shift toward a standard that is supposed to minimize the risk of bias in LGBT parenting cases. In a striking number of cases, however, we found evidence of persistent bias regarding the gender identity and expression of the transgender parent--which we refer to as transition, contagion, and volition related concerns--that underscores the courts' analysis. Normatively, this Article calls for a deeper interrogation of the ways in which family equality can be expanded--and even reoriented--to better protect the interests of transgender parents within the family law system. As a solution, we propose a way to balance courts' broad discretion with the disproportionate risk that bias will infect the decisionmaking, resulting in irreparable harm to both the child and the parent.

Table of Contents Introduction I. Transgender Family Formation and Recognition A. Transgender Family Formation B. Challenges to Parental Recognition Before Obergefell II. Transgender Parents and Contested Child Custody Cases: A Historical Overview A. Overview of Child Custody Decisionmaking Standards B. Legal Relevance of Sexual Orientation and Gender Identity in Custody Determinations C. Transgender Parenting and Judicial Bias: The Daly Case III. The State of Transparenthood: Three Biases A. Methodology and Limitations B. Three Persistent Biases 1. Concerns Regarding Transition 2. Concerns About Volition 3. Concerns About Contagion IV. A Normative Model A. Constitutional Considerations B. Policy Interests C. Limitations of the Nexus Test D. Beyond the Nexus Test: Bar Any Consideration of a Parent's Status or Related Factors Conclusion INTRODUCTION

In an opening scene from the Emmy Award-winning show Transparent, Jeffrey Tambor plays Maura, a transgender woman who is in the early stages of explaining to her three children that she plans to transition. (1) At one point, one of the daughters, Sarah, says to Maura, with a hint of disbelief, "Can you just help me out here? Are you saying you're gonna start dressing up like a lady all the time?" (2) Maura laughs, and then says to her, "No." (3) She continues, "my whole life I've been dressing up ... like a man." (4) She pulls Sarah's hand to her chest and then says, gently, "This is me." (5)

Although Transparent faced a number of cogent critiques from both inside and outside of the transgender community, (6) it was the first mainstream television drama to focus on a transgender woman as the central character, telling her story in a way that captured the complexity following her transition. Transparent made its debut around the same period that several transgender women--Caitlyn Jenner, Laverne Cox, and Janet Mock--also received widespread public attention, bringing one mainstream magazine to proclaim 2014 the "Transgender Tipping Point." (7)

But amidst the greater strides toward inclusion on television and social media, it is worth remembering some other, more sobering realities. The year 2017 was the deadliest year for transgender people in modern history, and the statistics for 2018 are not much better. (8) In (2017) the U.S. Department of Justice reversed the previous administration's position on transgender inclusion in public schools, thereby allowing schools to discriminate on the basis of gender identity. (9) The current commander in chief ordered a ban on service by transgender people in the armed forces, which was quickly en joined by multiple federal courts on constitutional grounds. (10) In October 2018, the New York Times reported that the Trump Administration would seek to go even further: to "defin[e] gender as a biological, immutable condition" that is determined by one's genitalia at birth, for the purpose of rolling back protections for transgender individuals. (11)

Despite these steps backward from the White House, it is also important to note how much progress has been made elsewhere. (12) State legislatures and courts across the country have lowered barriers to obtaining legal recognition by, for example, removing the requirement that a person undergo surgery before they can change the gender marker on a driver's license. (13) A (now) near-unanimous wave of court decisions, many at the circuit level, has held that transgender individuals are protected from discrimination under sex-discrimination laws like Title IX and Title VII (14)--a position still defended by the EEOC despite the Department of Justice adopting a contrary position. (15) Although transgender individuals have enjoyed some increased protection in the courts, their interests are distinctly vulnerable in the face of a president and a Supreme Court that may give priority to the rights of those who would discriminate against LGBT individuals.

Indeed, just as we are starting to recognize greater protections for transgender, nonbinary, and gender variant individuals under the law, (16) we are also driven to confront the many ways in which this recognition is just one small step toward equalizing the law's treatment of transgender individuals. Even if jurisdictions increase their recognition of transition and take greater steps toward protecting transgender individuals in the workplace, there are other areas of law--criminal law, privacy law, and constitutional law--that deserve a much more searching interrogation of how they may systematically disadvantage the interests of transgender people.

Enter family law, which has received only scant attention from legal scholars regarding its intersections with the rights of transgender individuals. (17) For example, until 2017, transgender individuals in over twenty countries that have signed on to the European Convention on Human Rights were required to undergo sterilization before they were able to change their name or other legal documents, effectively foreclosing their ability to have biological children. (18) Although these laws are now called into question due to a recent European Court ruling, (19) other countries, including Japan, still have these reproductive restrictions in place. (20)

Many of these sorts of restrictions often escape public attention. Surprisingly, despite the attention given to the rights of transgender individuals in the United States, including the rights of children, (21) there is comparably much less legal scholarship regarding the rights of transgender parents. There are only a smattering of law articles on the topic, and only a few of these address the topic in any depth. (22)

To remedy this absence, we conducted a search for transgender and gender variant parents within the case law and literature. (23) We found many more cases than the literature discussed, and even many cases supporting the rights of trans parents as well. Yet overall, the results are striking and unforgettable. In many cases, transgender and gender nonconforming parents lost their bids for custody or visitation. And in a few cases, transgender and gender variant parents had their parental rights terminated or narrowed based solely on their decision to transition. (24) These decisions do not just harm the transgender parent; they also inflict harm on children who are denied their ability to bond with a known parent when a transgender parent has been pushed aside, despite their desire to remain a part of their child's family.

This Article has four parts, spanning history, doctrine, and public policy. In Part I, we account for the various ways in which transgender persons have formed families and received unequal treatment at the hands of family court judges, prior to the legislative enactments and constitutional rulings that guaranteed marriage equality across the nation. In Part II, we provide a short background on how family courts have addressed the standards of custody and visitation, drawing on the case law addressing the rights of lesbian, gay, bisexual, and transgender parents.

Part III examines how those custody and visitation standards have applied to transgender parents. Our analysis is based on a collection of thirty opinions, which, we hope, represents every (published or unpublished) custody and visitation case involving a transgender or gender variant parent since the 1970s. (25) That treatment has paralleled in many ways the evolution of the treatment of lesbian, gay, and bisexual parents in family court proceedings. The earliest cases involving LGB parents found that, per se, custody or contact with such a parent would obviously be against a child's best interest, without the need for specific findings or evidence to support that conclusion. By the 1990s, however, courts in most states had shifted to a rule requiring at least some evidence of the harm that the parent's sexual orientation would allegedly cause the child. This is commonly known as the "nexus" test. (26)

While some early cases were willing to entirely sever or disregard the rights of transgender parents, more recent case law has avoided such per se determinations. Despite these developments, our investigation shows that bias against transgender parents continues to appear throughout court opinions. Drawing on existing...

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