Changing the Landscape for Transgender People in the Family Court System

I am hard-pressed to think of a family law case involving a transgender person with a fair or just outcome. And that is saying a lot.
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I am hard-pressed to think of a family law case involving a transgender person with a fair or just outcome. And that is saying a lot. As the director of the Transgender Rights Project at Gay & Lesbian Advocates & Defenders (GLAD), a non-profit that works in the New England states on discrimination cases involving LGBTQ clients and those with HIV/AIDS, I hear from many transgender people facing discrimination in the formation, expansion, or dissolution of family relationships.

A recent case on which I worked is representative of the systemic problem of cultural and social bias against transgender people that is reflected in our family court systems. Anne (all names listed are pseudonyms) has been the primary caretaking parent of her 5-year-old child, Molly. She had Molly with an ex-partner, Tom. Although Tom saw Molly occasionally, Anne was the constant, stable presence in Molly's life. Tom never objected to that arrangement. Anne recently fell in love with and married Brian, a kind, loving, supportive partner. He is also transgender, a fact Tom learned by doing an Internet search on Brian. After learning of Anne's marriage to Brian, Tom filed for sole legal and physical custody of Molly. Because Brian is a caring and competent stepfather and Anne has been a stable and loving parent for Molly her entire life, Tom was unable to attack Anne's parenting rights directly. Instead, Tom threatened to bring into court the fact Brian is transgender and threatened to "out" Brian to his employer and community.

It's not a fair fight. In fact, it shouldn't be a fight at all. But transgender people caught up in domestic relations matters have much to lose and, sadly, few protections.

A new book, Transgender Family Law: A Guide to Effective Advocacy, which I co-edited with Elizabeth E. Monnin-Browder, is intended to improve the legal landscape for transgender people and our families. It is designed to be a roadmap for transgender clients and their attorneys navigating family court systems in an evolving area of law. Reversing bad precedent, establishing favorable outcomes, and changing public attitudes are the goals of this book.

In recent years GLAD has brought lawsuits that successfully challenged transgender bias in all types of settings: a middle school's mistreatment of a transgender student, a prison system's denial of essential health care for a transgender inmate, a government agency's denial of insurance coverage for a transgender person's medically necessary care, the federal government's unequal treatment of a transgender taxpayer, among others. Yet transgender family law cases with favorable outcomes remain elusive. In speaking with my colleagues about why that is so, I realized that one of the challenges in bringing family law impact cases on behalf of transgender clients is the dearth of knowledge among family law attorneys -- even those deeply committed to advocating for transgender clients -- about effective representation for our community. As a result, many transgender clients have been negotiating away family law protections out of fear, often well founded, that they will fare worse in the courts, which often share the widespread community and social bias against transgender people. Rather than risk draconian results, many people agree to negotiated agreements that unfairly and unjustly restrict their familial rights.

For instance, an attorney once told me about a client she represented some years ago, a transgender woman who, prior to her gender transition, was in a lawful different-sex marriage. The client was being divorced by her wife of many years but had a close, loving relationship with their daughter. However, the wife threatened that if her estranged spouse challenged the divorce in court, the transgender client would never see the child again. She quickly turned to poisoning the relationship between the parent and child. Although this sounds like a common family law scenario, the difference is that courts predictably side with the non-transgender spouse in imposing all kinds of unprincipled restrictions on transgender parents up to and including terminating a person's parental status. Understanding the risk she faced, the transgender client chose not to challenge the wife's legal custodial status, asking only that she be allowed to retain her parental status and a financial obligation of child support. The transgender parent, fearing the worst, wanted her child to know that regardless of what happened to their relationship, she would always provide for her.

Stories like this are common and heartbreaking. They cry out for advocacy and education to reverse the negative legal precedent, bias, and discrimination against transgender people that infuses our legal system. I hope publication of Transgender Family Law: A Guide to Effective Advocacy marks the beginning of the end of unfair and unjust outcomes for transgender people in family law matters.

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