around the bar
December 28, 2012

Transgender Clients in Court: Navigating Complex Family Laws and Judicial Bias

A woman who becomes a man but identifies as gay can legally marry his same-sex partner in Ohio, even though the state bans civil unions, domestic partnerships and same-sex marriage.

How is this possible? In Ohio, the only documentation needed for marriage reflects an individual’s gender at birth.

Even laws that seem straightforward, such as outright bans on gay marriage or domestic partnerships, become complex for transgender people when they seek to establish or dissolve a relationship or remedy a custody issue.

“In the United States, we have a mixed bag of how to deal with relationship planning, in general, for couples. The trans status of one or both partners certainly does impact what kind of relationship planning choices folks can make,” said Spencer Bergstedt, attorney at North Sound Law, P.S., during an _ webinar, “Transgender People and Family Law: Current Legal Challenges and Best Practices.”

In essence, experts say legal marital options vary by transgender status and by state laws. They also say transgender people often face judicial bias and misconceptions about their status when resolving their family law problems in court.

For example, in states where same sex-marriage is recognized, the transgender status of a spouse is irrelevant because he or she can legally marry regardless of gender identity. However, in states where same-sex marriage or domestic partnerships are not allowed, lawyers must first determine the legality of a transgender person’s status. Then, the lawyers can determine relationship options, Bergstedt said.

“If you have a trans woman who is lesbian identified and has a female partner, and they wish to enter into a domestic partnership, you have to look to whether or not their trans status qualifies under the domestic partnership statute in the state in which the parties reside,” Bergstedt explained.

Transgender people also face various challenges when they seek to dissolve a legally binding union in court.

For example, courts have upheld that cross-dressing or transitioning during the marriage can constitute either emotional abuse or cruelty.

“There have been cases in which expressing any transgender identity during the marriage has been looked to as grounds to justify somebody who has moved out of the house, the inequitable distribution of property or the basis of some obligation for future support,” said Jennifer Levi, the transgender rights project director for Gay & Lesbian Advocates & Defenders.

Bergstedt offered a different scenario.

“One of the arguments raised in a number of family law cases has been that the non-trans partner was duped into marriage with a trans person,” he said.

Panelists agreed that education is critical for ensuring a fair legal process for transgender clients. They said lawyers need to counter the notion that being transgender is cruel or harmful in a marriage and to inform the court that gender identity is often set at an early age.

It is critical that lawyers are “addressing those allegations head-on and trying to educate the court about the diversity of human experience and the fact that being transgendered is just on the range of human experiences and should not be regarded as cruelty in the context of a marriage,” Levi said.

“Social bias and stigma can lead to the unconscious suppression of gender identity,” she added. “So the fact that someone comes out in a marriage as transgendered is not in any way reflective that someone has hid their identity or is being deceptive or has been fraudulent in any way.”

In custody cases, a huge challenge for transgender clients and their attorneys is the court system.

“The judicial climate for transgendered parents today … it’s bad, it’s pretty hostile,” said Shannon Price Minter, legal director of the National Center for Lesbian Rights.

At the extreme end, a court can terminate a transgender parent’s rights.

“Unfortunately, this has happened,” Minter said. “It’s kind of shocking because legally, of course, just because a person transitions (into transgender status), that is not going to automatically sever an existing legal parent-child relationship.”

It is important that transgender clients seek expert advice on the best ways to disclose their transgender status to their children.

“Being able to show the court that a parent has really thought about this, is putting their child’s interests first and is getting the best guidance that they can from experts … could turn out to be very helpful,” Minter said. “It might even make the difference between a person maintaining their parental rights or losing them.”

This is the second installment of a two-part series on relationships and family planning for transpeople. Click here to read part one.

Learn More About:  Family LawGay Rights