The Transsexuality of a Parent
as a Factor in the Award of Child Custody
and Visitation Rights
"Tom"[1] is a 43 year old, well-educated, professional
male, who is presently involved in divorce proceedings in
south-eastern Michigan. Tom is the father of two young
boys, Tom Jr., 11 and Alex, 9. Tom has been married for
14 years, and has been under psychological and physiologi-
cal supervision for at least 10 of those years. Tom has
been diagnosed as a transsexual,[2] and has entered into
a clinical program that will culminate in both a physical
and a legal[3] change in his sex.
Tom's wife, Marie, has asked the court to deny Tom
custody or visitation. Marie alleges that Tom's condition
is harmful to the mental well-being of their children, and
that in their best interests contact with their father should
be limited.
Neither Tom nor Marie is really sure what effect his trans-
sexuality may have upon the children in the years to come.
Neither of their attorneys feel wholly confident in assess-
ing what effect Tom's transsexualism will have upon the
eventual outcome of the divorce. In fact, none of the
people involved agree as to exactly what "being a transsex-
ual" means.
Their uncertainty is understandable. It is almost impossible
to locate any two court decisions or medical experts who will agree
to any but the most basic issues which Tom's condition presents.[4]
This is not because Tom's condition is unique--it's not. Estimates
of the number of anatomically male transsexuals within the general
population range from 1 in 37,000 to 1 in 1,000,000.[5] Instead,
opinions are varied due to the lack of dissemination of information
about transsexualism.[6] In this regard the legal field has lagged
far behind both medicine and psychiatry.[7] While doctors and
psychotherapists have been almost unanimous in accepting the
validity and necessity of treatment for transsexual patients,[8] and
have developed standardized guidelines for such treatment,[9] the
courts have handled each case as a completely isolated event. This
has led to a great diversity of results.[10] There are, however,
basic approaches which have been followed in the majority of cases,
and it is upon those basic approaches that this comment will focus.
An Overview of Transsexualism
Before being diagnosed as a transsexual, Tom had spent the
majority of his life seeking an answer to his internal turmoil.
Tom has learned that he is not homosexual, at least not as
it is commonly understood; Tom's short sojourn into the Gay
world was less successful than his attempt to fit into life as
a married man. Tom joined a therapy group for transves-
tites, but after just four months both he and his therapist
agreed Tom did not suffer from transvestism. Tom functions
well in society and on an interpersonal level with his family,
but he is constantly plagued by self-doubt and
depression.[11]
Although the incidence of transsexualism is "centuries old,
"[12] until recently[13] transsexualism had been grouped together
with transvestism[14] (a desire to wear the clothes of the opposite
sex) and homosexuality[15] (sexual desire for those of one's own
sex). This is probably because there was little that a transsexual
could do to bring his[16] inner self into harmony with his physical
body. His only option was to adopt the practices of transvestites
and homosexuals; in other words, to attempt to look like a woman and
to have a "normal" relationship with a man.
In the 1930's[17] doctors combined procedures developed to
treat women with vaginal agenesis (absence of a vaginal vault)[18]
with hormone treatments used to alleviate the extreme problems
experienced by some post-menopausal women to the purpose of altering
the body of a person to become their "correct" sex.[19] Various
surgical procedures have been in use,[20] but since the 1950's the
guidelines of the Harry Benjamin International Gender Dysphoria
Association (HBIGDA) have been followed by nearly all doctors and
mental health professionals involved in treating this problem.[21]
The HBIGDA guidelines are very detailed and call for a variety of
safeguards to prevent a false diagnosis from occurring.[22] For
instance, the opinions of at least two members of the medical field
and one associated profession are required before surgery is to be
performed.[23] In addition, the patient must have lived as a member
of the "opposite sex" for at least one year before surgery.[24]
Help is provided with learning to assimilate into the new role that
society expects, and both individual and peer group counseling are
necessary.[25] Only after all these requirements are met may
surgery be performed.[26]
The surgery itself, while appearing to be the culmination of
the treatment procedures, is neither the last nor the most taxing
part of the process. Continued psychological and medical treatment
may be required for six months to several years afterwards.[27]
While post-operative patients are nearly unanimous in their
satisfaction with the change they have undergone,[28] personal and
especially legal problems may continue to plague them for the rest
of their lives if they are not given adequate consultation and
preparation beforehand.[29] In response to this, health
professionals have begun to call upon the legal profession to
provide the services so desperately needed by their patients.[30]
With the clinics in Tom's area of Michigan reporting "several
hundred"[31] patients, there is a demonstrable need for qualified
and concerned members of the legal profession to address these
issues.
Legal Recognition of Transsexualism
Tom is lucky that he was born, and resides, in Michi-
gan. Michigan is one of the few states that has legislatively
recognized true transsexualism.[32] Tom may have the
sex and name on his driver's license altered to aid him in
adjusting to his new life even before the actual
surgery.[33] Once all surgical procedures have been
completed, Tom will be given a new birth certificate, listing
his new name and correct sex.[34] The old certificate will
be available only upon court order. Tom will be legally a
woman.[35]
As previously stated,[36] the law has lagged far behind
medicine in confronting this issue. There has been no unified or
comprehensive approach advanced, and the coverage of this issue in
legal publications has been sparse.[37] The legislatures of several
states have faced this issue and have passed a variety of acts, some
in complete opposition to similar acts in neighboring states.[38]
Due to this disparity, it becomes important to research fully the
laws which might affect the outcome of any particular case.
The legislative acts in force in the various states can be
classified into four distinct types: acts which allow for the
issuance of new "original" official documents;[39] acts which allow
official records to be amended;[40] acts which specifically deny
alteration of official records for reason of a transsexual
operation;[41] and acts which affect transsexuals in ways other than
to effect changes in official records (for instance, laws regarding
the wearing of "sexually inappropriate" clothing).[42]
A study of the legislation affecting an issue is exceptionally
helpful in areas where precedential case law is scarce. Where there
is undeniable legislative intent to recognize the legitimacy of
transsexuality and the sex-change procedure, courts must take note
of that fact in considering the actions of a parent seeking such
treatment. In the absence of contrary case law, there can be only
one decision: a parent who has been diagnosed as a true transsexual,
and who has decided to assume living in his correct sex, is doing so
with the full support of the law and should not be denigrated for
doing so.[43] Since transsexualism is a medically recognized
illness,[44] for one to suffer from this affliction and refuse or be
denied treatment could have far worse repercussions upon all those
involved than would be caused by proper treatment. Since the
medical and mental health profession seem to be united in their
belief that the only "cure" for true transsexualism is to undergo a
sex reassignment procedure,[45] the patient's decision to undergo
such a procedure is justifiable. However, the fact that one is
justified in undertaking a particular action is no assurance that
there will not be instances where that might prevent performance of
some other, equally justified, action.[46] Having the right to
perform an act does not imply that there cannot be controls or
restrictions on that act, or that there can never be repercussions
following that act.[47] In a child custody or visitation decision,
the court must look not only at the act in question but also the
effect that the act may have upon the child, and base any decision
upon the best interests of the child.[48]
The "Best Interests" Standard
No one is contesting that Tom loves his children, or that
they love him. In fact, the children have made it clear that
they wish to continue their relationship with him. They are
apprehensive and uncertain as to what the future holds, but
the basic bonds of their relationship still holds strong. Tom
does not deny that the children's uncertainty might cause
them some additional stress, but he feels that the harm
caused by completely disrupting the bond between them
would be even greater.
In deciding child custody and visitation issues most states
have adopted the "best interests of the child" standard recommended
in the Uniform Marriage and Divorce Act,[49] developed by the
National Conference of Commissioners on Uniform State Laws and
endorsed by the American Bar Association (Group for the Advancement
of Psychiatry, 1980).[50] These states list several factors which
are to be evaluated, including such things as the ability of the
parent to meet the child's educational, emotional and medical needs.
[51] The last factor is usually a "catch-all" category, allowing
the court to consider any other "relevant factor".[52] The law
leaves the weight to be placed on each of these factors up to the
judge.[53] There are distinct differences in the way in which these
factors are weighted by the courts and by mental health
professionals.[54] Mental health professionals (social workers and
psychologists) have tended to focus more upon the child's wishes and
the relationship between the parent(s) and the child.[55] The
courts have held to the more traditional criteria of
legal/biological relationship (favoring natural parents and mothers
where young children are concerned) and family structure (favoring
two-parent families).[56] In attempting to reduce the effects of
non-uniform application of the best interests criteria and the bias
and error inherent in such cases, several alternative standards have
been recently proposed.[57] The common factor in all of these
alternative approaches seems to be a greater focus on the
relationship between the parent and child--focusing on "Which parent
is a better match for having primary responsibility for raising this
child?" rather then "Which parent is the better adult?"[58]
There has also been significant disagreement as to the degree
which divorce and the attendant environmental[59] changes will
affect the psychological adjustment of the affected children.[60]
Some studies have shown that the ability of the child to adapt is
unaffected by the degree of these changes,[61] while others have
shown correlation between the degree of change, the age of the child
and the potential harm to the child's development.[62] The
repercussions of a divorce have been seen in children even after
they have themselves become adults and have married.[63] Given the
almost unlimited number of factors which may be considered and the
widely disparate opinions as to the relative importance of each, the
Supreme Court of Appeals of West Virginia stated that "in the
average divorce proceeding intelligent determination of relative
degrees of fitness requires a precision of measurement not possible
given the tools available to judges."[64] When one of the parents
involved suffers from any sort of mental or physical disability,
determination of relative fitness may become even more difficult.
To resolve this dilemma, the court needs to develop the proper
"tools"--one of which is the use of expert testimony to decide how
that disability might affect the best interests of the child.
The Best Interests Doctrine versus
The Transsexual Parent: Winner Take All?
Tom and his lawyer have the reports of Tom's doctors
stating that he is a true transsexual, and regardless of what
else he may do he can not change that fact.[65] They
have researched the laws currently in force in Michigan and
have reached the conclusion that what he is doing is at least
legally correct. They have discussed the "best interests"
doctrine as it applies in Michigan, and now they need to
decide how Tom's condition might be viewed by the court.
In cases concerning a transsexual parent's custody or
visitation rights the courts have freely used the discretion
afforded to them under the best interests doctrine.[66] This may be
seen by comparing the results in the following two cases.
In In Re the Custody of T.J.[67] the Minnesota Appellate court
addressed the issue of a father who had been diagnosed as a
transsexual and found that the father's "condition [did] not
automatically disqualify him from having a relationship with his
child,"[68] as was suggested by the child's mother. The court found
that "there is no evidence which would lead the Court to believe
that providing primary parenting responsibilities to a gender
dysphoric father would cause future problems for T.J.,"[69] and
affirmed the award of custody to the father. The court discussed
Minnesota's statute setting forth its version of the best interests
standard,[70] and focused on the relationship between the parent and
child and the capacity of each parent to provide for the child's
emotional, mental and physical well-being.[71] The court found that
a close and loving relationship existed between T.J. and his father,
and that the father provided a safe, stable and satisfactory living
arrangement.[72] The court also noted that the father had been seen
by two prominent therapists, and each had found that he was
emotionally stable and possessed a great insight into his condition.
[73] There was also testimony that the child's anxiety was caused
more by the mother's extremely negative reaction to the father than
by the father's condition itself.[74]
The case of Cisek v. Cisek[75] presented slightly different
facts but led the Seventh District Court of Appeals to a completely
different decision. The father had completed the necessary
procedures and had entered into life as a woman, beginning a career
as a vocalist.[76] This caused quite a bit of local notoriety, and
several appearances on television within the local area followed.
[77] The mother, who had custody subject to the father's visitation
rights, petitioned to have those rights revoked. She presented
testimony that the father's sex change, and the notoriety
surrounding it, might have an adverse effect upon the child's mental
well-being.[78]
The court noted that the father had presented no testimony
disputing these allegations or showing why he had acted as he did.
[79] The court granted the mother's petition, but stated that it
was not meant to be permanent.[80] The father would be allowed to
resume visitation upon a showing that a plan had been developed
which would protect the children from the threatened harm.[81]
Even within the same case, where two judges say that they are
applying the same reasoning to the same facts, the results may seem
diametrically opposed. This happened in Steinke v. Steinke[82]
where a woman sued for divorce and claimed that her husband's
seeking treatment for transsexualism constituted mental cruelty.
[83] The Superior Court of Pennsylvania granted the divorce, but
stated that, given the advances in medicine and the growing
acceptance of transsexualism in our society, it was "difficult to
believe that there was a recognizable illness in the first place.
"[84] The court said that it would "hesitate to accept the view
that mental imbalance is shown [when one] experiments with
[transsexualism]".[85] The court made special note of the fact that
the father was following the course of treatment recommended by his
doctors, and that "no cure or treatment was prescribed or treatment
recommended other than continuation or even increase of the same
behavior."[86] There was little option for the father to pursue. A
separate opinion, which concurred in the holding on other grounds,
had "no difficulty or hesitancy" in finding that the husband
suffered from a mental illness such as "would naturally repulse" a
woman of ordinary sensibility.[87]
While there are fewer female-to-male transsexuals,[88] there
have been cases where it is the mother who has suffered from this
problem. This occurred in the case of Christian v. Randall.[89]
Following their divorce, the mother was given custody.[90] Sometime
later she was diagnosed as a transsexual and underwent treatment and
surgery.[91] After her remarriage to a woman the father petitioned
for a change of custody.[92] The trial court granted his petition,
but the appellate court, after reviewing the testimony of the
children's school teachers, principal, and family services worker,
reversed.[93] The court stated that the mother's change appeared to
bother no one but the father.[94] This, in itself, was not a
sufficient change in circumstances to warrant a change in custody.
The common factor in all of the foregoing cases is the degree
to which the transsexual parent has gone to protect the child from
the potential adverse effects which might be present. The court
made note of this in a recent case, Daly v. Daly.[95] In Daly the
mother had and custody and the father had visitation during the
summer. Sometime during the winter the father underwent a complete
change of sex without telling anyone of his plans.[96] The child
first learned of her father's transformation when she arrived for
her summers visitation.[97] When the summer season ended, the
father told the child that she could not discuss his change of sex
with anyone.[98] This proved to be too much for her, and she
suffered severe trauma.[99] The court wasted no time in terminating
his visitation rights.[100] It is important to note that it was the
father's actions in hiding his condition, and in failing to take
measures to assist his child in coping with the change he had
undergone, not the condition itself, that led the court to its
decision.[101]
In all of the cases above, it appears that when a transsexual
parent has sufficiently provided for the welfare of his children,
the fact of the condition in itself should not be a bar to either
visitation or custody. This is supported by several psychologists
and medical doctors who have studied the children of transsexuals.
[102] In the only intensive study to date, 37 children raised by
transsexual or homosexual parents were followed for up to 16 years.
No indication of abnormal social or sexual patterns were discerned.
[103] From this it would appear that being a transsexual should not
automatically preclude one from maintaining one's parental role--it
need not be a case of "Winner Take All."
Conclusion
Tom and his attorney have learned much about the way the
law views transsexualism. Tom finds it a little strange that
different states have such widely divergent views on the
legitimacy of what he sees as an inescapable part of nature,
but he is thankful for the fact that his home state holds a
comparatively enlightened view. Tom feels that if he can
persuade the court that he has done everything he possibly
could to safeguard the well-being of his children, his changes
of retaining some amount of custody or visitation is quite
good. Tom is anxious but hopeful.
Transsexualism is a medically recognized fact.[104] As the
availability and awareness of treatment becomes more widespread, the
issue of transsexual parents will occur more and more frequently in
our courts. The legal profession must move forward with the medical
profession in preparing to face this issue.
There is little doubt that the standard for determination of
child custody and visitation will continue to be that of the best
interests of the child. The issues will arise from the application
of the best interests standard to the unique problems presented by a
transsexual parent. The courts must take a serious look at the
proper way to evaluate the effect that a parent's change of sex will
have upon a child. The courts must look at each case on its own
facts, weigh the expert testimony presented, evaluate the steps
taken to minimize the harm which might befall the child, and replace
judgment of the parent's lifestyle with an honest appraisal of their
abilities as a parent and their ability to meet the physical, mental
and emotional needs of the child. Only then will the court's
determinations truly represent the "best interests of the child."
--------------------------------------
1. "Tom", his family and his lawyer are drawn from the
experiences of 17 transsexual patients interviewed by the author
during December and January 1988-89. All of these people are
patients of Dr. Donald A. Brown, Director of Counseling Services,
University of Michigan, Dearborn, Michigan. The author gratefully
acknowledges their help in compiling Tom's story. The author also
wishes to thank Dr. Brown, a truly great humanitarian and man of
science, to whom this comment is dedicated.
2. Transsexualism is the feeling that one's psychic or inner
being is of a different sex than one's outer body would indicate. A
"true transsexual" is driven to have his (or her, see n.16 infra)
body, appearance and social status altered to reflect the sex he
perceives himself to be. See, H. Benjamin, The Transsexual
Phenomenon 112 (1966) [hereinafter cited as Benjamin];
Transsexualism and Sex Reassignment 487 (R. Green and J. Money eds.
1969) [hereinafter cited as Green and Money]; "Transsexualism, Sex
Reassignment Surgery, and the Law," 56 Cornell L.R. 963, 963-64
(1971) [hereinafter cited as Transsexualism and the Law]; Bowman and
Engle, "Sex Offenses: The Medical and Legal Implications of Sex
Variations," 25 Law and Contemp. Prob. 292, 306-07 (1960)
[hereinafter cited as Bowman and Engle]. A related term,
hermaphrodism (often referred to as "intersex"), refers to a person
who has physical characteristics similar to both sexes (for instance
when the external sex organs are male but the person possesses
ovaries instead of testicles or when the persons sexual organs are
not fully developed or differentiated). Bowman and Engle at 294-95;
Green and Money at 485 (glossary); Petrini, infra n.4, at 350-58.
3. See Note, "Spelling `Relief' for Transsexuals: Employment
Discrimination and the Criteria of Sex," 4:103 Yale L. & Pol'y Rev.
125, 126 (1985)(discussing different standards for determining
sex--i.e. legal, gonadal, chromosomal and gender).
4. Edgerton, Labgman, Schmidt, and Sheppe, "Psychological
Considerations of Gender Reassignment Surgery," 9(3) Clinics in
Plastic Surgery 355 (July 1982)[hereinafter cited as "Psychological
Considerations"].
5. Petrini, "In Search of a Vagina," (reprinted in Sexuality
in America, Brown and Clary, eds., 1981) [hereinafter cited as
Petrini].
6. Psychological Considerations, supra, n.4, at 355.
7. Turner, Edlich and Edgerton, "Male Transsexualism: A Review
of Genital Surgical Reconstruction," 132(2) Am. J. Obstetrics and
Gynecology 119-21 (September 15, 1978)[hereinafter cited as Review
of Genital Surgical Reconstruction].
8. Psychological Considerations, supra, n.4, at 360.
9. Lamb, Laub & Biber, "Vaginoplasty for Gender Confirmation,"
15(3) Clinics in Plastic Surgery 463 (July 1988) [hereinafter cited
as Vaginoplasty].
10. See, n.82, infra, and accompanying text.
11. Roughly two-thirds of all transsexuals had identified
themselves with the opposite sex by age five, nearly all did so by
puberty, according to one study conducted of the parents of
transsexual patients. Pauley, "The Current Status of the Sex Change
Operation," 147 J. Nervous and Mental Disease 460, 463 (1968)
[hereinafter cited as Pauley]. These feelings manifested themselves
in confusion, self-doubt and attempts at self-mutilation in severe
cases. Pauley at 463-64.
12. Review of Genital Surgical Reconstruction," supra n.7, at
120. See, also, Benjamin, supra, n.2; Green and Money, supra, n.2
(Transsexualism first became medically practical in the 1950's, and
became public knowledge with the media attention give to Christine
(nee George) Jorgensen); Block and Tessler, "Transsexualism and
Surgical Procedures," Medical Aspects of Human Sexuality (February
1973)(Interest in transsexualism may be seen in all cultures and
throughout recorded history. The creation myths of several
religions contain hermaphroditic or transsexual creatures.).
13. The American Psychiatric Association now recognizes
transsexualism as a separate and distinct phenomenon, albeit with
some overlap. See American Psychiatric Association: Diagnostic and
Statistical Manual of Mental Disorders, 3rd ed. Revised: Washington,
D.C.: APA 1980, diagnosis 302.5x [hereinafter cited as DSM-III-R].
14. Transvestism is a compulsion to wear the clothes of the
opposite sex. Unlike transsexualism, transvestism is noted almost
exclusively among males. Transvestites do not wish to actually
become female, and some are content to wear just certain items, such
as underwear. Transvestism is also akin to a fetish (sexual
attraction to inanimate objects). See, e.g. Petrini, supra n.5, at
159-61.
15. Homosexuality is the desire to engage in sex with those of
the same sex. Unlike transsexuals, homosexuals are quite content to
be the sex they appear to be. Homosexuals at ease with their
orientation are no longer considered to possess a mental disorder.
See, e.g. DSM-III, supra n.13 (diagnosis 300.00).
16. Sixty to 90% of all transsexuals treated are male. DSM-3,
supra n.13, at 263. It is estimated that the numbers would be
closer to one-half if all transsexuals sought treatment, but the
greater expense and lesser success of the female-to-male procedures
probably inhibit many potential patients from seeking therapy. Some
researchers found that the ratio of those actually undergoing
surgery approached 1:1. Petrini, supra n.5, at 156.
17. Meyer and Kesselring, "One-State Reconstruction of the
Vagina with Penile Skin as an Island Flap in Male Transsexuals,"
7(4) Clinics in Plastic and Reconstructive Surgery 401 (September
1980) [hereinafter cited as Meyer and Kesselring].
18. Review of Genital Surgical Reconstruction, supra n.7, at
122-32.
19. Petrini, supra n.5, at 143.
20. Review of Genital Surgical Reconstruction, supra n.7, at
122-32.
21. "Standards of Care: The Hormonal and Surgical Sex
Reassignment of Gender Dysphoric Persons," 14 Archives of Sexual
Behavior 1 (1985) [hereinafter cited as Benjamin Foundation
Guidelines].
22. Id. at 80-85.
23. Id. at 82.
24. Id. at 87 (Standard 9).
25. Guidelines for Sex Reassignment Surgery, at 3 (Available
through the Huxtel Hospital Gender Identity Clinic, Detroit,
Michigan).
26. Benjamin Foundation Guidelines, supra n. 21, at 84.
27. Erickson Education Foundation, Guidelines for Transsexuals
(1974) at 2.
28. Psychological Considerations, supra n. 4, at 363.
29. See Transsexualism and the Law, supra n.2 at 979-1007.
30. Vaginoplasty, supra n.9, at 463.
31. Letter from Dr. Robert Niccolini, Director, Huxtel Hospital
Gender Identity Clinic, February 20, 1989 [hereinafter cited as
letter from Dr. Niccolini].
32. See nn.3 & 40, infra, and accompanying text.
33. Michigan Department of State, Michigan Driver's License
Procedures Manual for the Department of State.
34. MCL 333.2831 - .2832 (1979).
35. See Note, "Spelling `Relief' for Transsexuals: Employment
Discrimination and the Criteria of Sex," 4:103 Yale L. & Pol'y Rev.
125, 126 (1985).
36. See supra, n.7, and accompanying text.
37. An attempt was made in this comment to reference all the
relevant legal materials found, including all published articles and
available cases. The paucity of materials may be shown by the
author's (perhaps naive) belief that she accomplished this task.
Only two cases were excluded. The first, Karin T. v. Michael T.,
127 Misc.2d 14, 484 N.Y.S.2d 780 (1985) held that a female-to-male
transsexual was liable for support of two children fathered through
artificial insemination. This case was excluded as not really
relevant since there was no custody or visitation dispute. In the
second, Re Darnell, 49 Or.App. 561, 619 P.2d 1349 (1980), the court
held that a woman's refusal to disassociate from her former husband
(a female-to-male transsexual) was detrimental to the best interests
of her children. The parents believed that they were Jesus ad Mary
and belonged to a religious cult which advocated drug-taking and
sexual orgies. This case was excluded because the court made no
distinction as to which factor(s) led to its decision. See
Annotation, "Parent's Transsexuality as Factor in Award of Custody
of Children, Visitation Rights or Termination of Parental Rights,"
59 ALR4th 1170.
38. Compare the law of Tennessee, supra n. 41 (forbidding any
change of official records due to "surgical alteration of one's
sexual organs") with that of any of the states cited supra nn. 39 &
40 (allowing amendment of official records or the creation of new
records).
39. The following states have laws which allow new official
records to be issued, upon either a court order or a doctor's
statement certifying that all necessary surgical procedures have
been completed: Arkansas--Ark. Stat. Ann. 20-18-406 (1981);
California--Cal. Health & Safety Code 10475-478 & 10618 (1977);
Illinois--Ill. Rev. Stat. ch. 111-1/2 para. 73-17(d); Iowa--Iowa
Code Title VII 144.23-.24 (1987); Louisiana--La. Rev. Stat. Ann.
40.62 (West 1981); Michigan--MCL 333.2831 - .2832 (1979); North
Carolina--N.C. Gen. Stat. Art. 4, 130A-118 (1986); Ohio--Ohio Rev.
Code Ann. 3705.20 (Anderson 1987).
40. These states have laws allowing official records to be
amended to show a change in sex designation: Virginia--Va. Code
Ann. 32.1-269 (1950)(records marked "amended"); Minnesota--Minn.
Stat. Ann. 144.171-.172(3)(1970)(however, an "arrangement" exists
where new, coded documents may be issued. See "Transsexualism and
the Law," supra n.2, at 995). In addition, Hawaii, New Jersey,
Pennsylvania and Texas have some sort of law allowing the amendment
of official records after a surgical change of sex. Erickson
Educational Foundation, Some Legal Aspects of Transsexualism (1979),
at 4.
41. Tennessee law prohibits any alternation of official records
due to "surgical alteration of one's sexual organs". Erickson
Educational Foundation, Some Legal Aspects of Transsexualism (1970),
at 5.
42. The following states have laws which might be used against
transsexuals who are living and dressing in the clothes of their
"opposite" sex: Arizona, California, Colorado, Idaho, Nevada, New
York, Oklahoma, Oregon, Texas, Utah and Washington state. Erickson
Educational Foundation, Some Legal Aspects of Transsexualism (1970),
at 4. However, recent cases have held these laws to be invalid when
applied to transsexuals who are under competent medical treatment.
See, e.g. Kalodimos v. The Village of Morton Grove, 103 Ill.2d 483,
470 N.E.2d (1984)(holding a city ordinance prohibiting appearing in
"a public place in a dress not belonging to his or her sex"
invalid). But see People v. Simmons, 79 Misc.2d 249, 357 N.Y.S.2d
362 (1974)(ordinance has a "real and substantial relation to the
public safety"). For a comprehensive survey of the laws in the
United States and in other countries, see "Transsexualism and the
Law," supra n.2, at 979-1003.
43. See n.78, infra, and accompanying text.
44. See n. 8, supra, and accompanying text.
45. See "Psychological Considerations," supra n.4, at 360
(stating that there has not been even one confirmed "cure" that did
not result from allowing the change in sex); "Review of Genital
Surgical Reconstruction," supra n.7, at 119 (futile to try shock
therapy, aversion therapy, drugs or hypnosis).
46. One example should suffice. In a jurisdiction with a
"consenting adults" law, two people may be justified in
cohabitating. But should one of the parties have previously
performed an equally justified act, marriage to a third party, the
rights under the consenting adults law might be lost.
47. Suppose the co-habitating couple in n.46, supra, should
produce offspring, as is their right. The law would then place upon
them the responsibility of affording proper care to those children.
48. See n. 52, infra and accompanying text.
49. See "Best Interests Revisited In Search of Guidelines," 3
Utah L.R. 651 (1987)([hereinafter cited as Best Interests], "Family
Evaluation and the Development of Standards for Child Custody
Determination," 19 Columbia J. of L. and Soc. Prob. 505
(1985)[hereinafter cited as Family Evaluation], Lowery, "The Wisdom
of Solomon Criteria for Child Custody from the Legal and Clinical
Points of View," 8 L. and Human Beh. 371 (1984)[hereinafter cited as
Lowery].
50. Lowery, supra n.49, at 372.
51. E.g. Minn. Stat. 518.17 (1986) lists the following
factors: (a) the wishes of the child's parent or parents as to
custody; (b) the reasonable wishes of the child, if the court deems
the child to be of sufficient age to express preference; (c) the
interaction and interrelationship of the child with a parent or
parents, . . . , (d) the child's adjustment to home, school, and
community; (e) the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity; (f) the permanence, as a family unit, of the existing or
proposed custodial home; (g) the mental and physical health of all
individuals involved; (h) the capacity and disposition of the
parties to give the child love, affection, and guidance, and to
continue educating and raising the child in the child's culture and
religion or creed, if any; . . . (i) any other factor the court
deems relevant.
52. See, e.g. MCLA 722.22- .27; Supp. 1971 ("any other factor"
considered by the court to be relevant).
53. Lowery, supra n.49, at 372.
54. Id. at 373, 375-79.
55. Lowery, supra n.49, at 377.
56. Id.
57. Family Evaluation, supra n.49, at 505-507.
58. Lowery, supra n.49, at 379.
59. See "Best Interests," supra n.49, at 658-61 (discussing
factors which compound the trauma of divorce; moving from the family
home, loss of income, attending a new school, etc.).
60. J. Wallerstein & J. Kelley, Surviving the Breakup
(1980)(discussion: a five-year study on the effects of divorce on
all the family members).
61. Best Interests, supra n.49, at 659.
62. Best Interests, supra n.49, at 659.
63. See Hetherington, "Divorce: A Child's Perspective," 34 Am.
Psychologist 10 (October 1979) at 851-52.
64. Garska v. McCoy, 278 S.E.2d 357, 361 (W.Va. 1981).
65. There is no known cure for transsexualism, see supra n.45,
so there is little that Tom can do to change his situation.
66. See nn.53 & 54, supra, and accompanying text.
67. Non-published opinion, No. C2-87-1786 (Minn. Court of
Appeals (February 2, 1988).
68. Id. at 11.
69. Id. at 9.
70. Id. at 9.
71. Id. at 9.
72. Id. at 9.
73. Id. at 6.
74. Id. at 9. See also, Letter from Dr. Niccolini, supra n.31
(Traumatic results directly related to the hostile reaction of the
non-transsexual parent).
75. Slip Opinion No. 80 C.A. 113 (7th C.A. Ohio, July 20,
1982).
76. Id. at 2.
77. Id. at 2-3.
78. Id. at 2-3.
79. Id. at 3.
80. Id. at 3.
81. Id. at 4.
82. 238 Pa. Super. 74, 357 A.2d 674 (1975).
83. 357 A.2d at 675.
84. 357 A.2d at 678.
85. 357 A.2d at 678.
86. 357 A.2d at 677-78.
87. 357 A.2d at 686-87.
88. See n.15, supra.
89. 33 Colo. App. 129, 516 P.2d 132 (1973).
90. 516 P.2d 132.
91. 516 P.2d 134.
92. 516 P.2d 135.
93. 516 P.2d 134.
94. 516 P.2d 133-34.
95. 715 P.2d 56 (S. Ct. Nev. 1986).
96. Id. at 57.
97. Id. at 57.
98. Id. at 57.
99. Id. at 59.
100. Id. at 59-60 (Transsexualism was coupled with failure to
pay support, failure to maintain communication and lack of judgment
in exposing the child to possibly more harmful situations).
101. Letter from Dr. Niccolini, supra n.31.
102. Green, R. "Sexual Identity of 37 Children Raised by
Transsexual or Homosexual Parents," 135(6) Am. J. of Psychiatry 692
(June 1978)("Children being raised by transsexual or homosexual
parents do not differ appreciably from children raised in more
conventional family settings.").
103. See supra, n.2 & 13.
104. See Best Interests, supra n.49, at 378-79 (Although mental
health professionals and the courts weight the factors differently,
the answer lies in more research, not in replacing the best
interests doctrine.).