Epilogue (in small part) to a transgender parent case

Earlier this week I wrote about transgender parents.  In one of the cases, from 1986, a father, Tim Daly, transitioned (and took a new name, Suzanne Daly) and subsequently lost all parental rights upon the petition of the child's mother.  It is a tragic case.  (You can read it here.)

With these older cases, I always wonder how things turned out for the family.  Sometimes the courts use only initials or pseudonyms, in which case it's impossible to look.  But in this internet information age, I do try to find former parties to the cases and their children.  The Daly opinion used real names.  The child's name was Mary Toews Daly.  She was 12 years old.  My internet search did not uncover her. But it did lead me to an obituary for her grandmother, Mary Maxine Daly.  Mary Maxine was the mother of Mary's father, Tim, who transitioned and and changed his name to Suzanne in December 1982.

So here is a sad fact.  Mary Maxine was 96 when she died, in 2006.  Her death notice contains the following:  "She was predeceased by two sons, Timothy Daly and Patric Sean Daly..."  So almost 25 years after her transition, Suzanne Daly's family could not/would not acknowledge that she had existed.  The child in the case, Mary Toews Daly, turns 40 this year.  She is named as the granddaughter of the deceased.  In the 1986 opinion the court noted that she could rekindle the relationship with her father as an adult.  I started out my search hoping to find out that she did, and interested in finding out how she looks back on the time when the court, at the urging of her mother and with her consent, stripped her father of the right to be her parent.

I didn't get a definitive answer to that question.  But if she had any hand in writing the death notice for her grandmother, it looks like no reconciliation took place.  If it had, I would think her father would be listed by the legally correct name, Suzanne.  If the deceased, the elder Mary, had accepted her son's transition, I would expect the death notice to refer to her "two children, Suzanne Daly and Patric Sean Daly."  I'm sad it didn't.

Transgender Parents -- Then, Now, and the Future

A trial court concludes it is in the best interests of four daughters to change custody from their mother to their father because their mother was “going through a transsexual change” from female to male.  The mother had changed her name to Mark, and, after the father petitioned for the custody change, Mark married a woman.  Reversing, the appeals court quotes the statutory requirement that “the court shall not consider conduct of a proposed custodian that does not affect his relationship with the child," and finds no adverse impact on the mother’s relationship with the children or on their emotional development.

A trial court terminates the parental rights of a father after he undergoes sex reassignment surgery and becomes a woman.  Affirming, the state supreme court finds that “Suzanne, in a very real sense, has terminated her own parental rights as a father.  It was strictly Tim Daly's choice to discard his fatherhood and assume the role of a female who could never be either mother or sister to his daughter.”

Contrary to the recommendation of the guardian ad litem, and in spite of finding that the father was the more nurturing parent, a trial court awards primary custody of two children to their mother rather than their father, who was transitioning to become a woman. The trial court reasons that "[Robbie] has indicated she will be undergoing sexual reassignment surgery sometime in the very near future. [The] surgery may be everything she has hoped for, or it may be disastrous. No one knows what is ahead, and the impact of gender reassignment surgery on the children is unknown."  Affirming, the appeals court finds that the trial court properly “focused on the children's need for ‘environmental and parental stability’."

            The above snapshots are from three cases, one decided in 1973, one in 1986, and one in 2007.  Which case do you imagine goes with which year?  Take a moment and think about that before you keep reading.

The cases are listed in chronological order.  The unequivocal win for the transgender parent – indeed the only unequivocal win for a transgender parent in any reported appellate decision to date – came in Colorado, in 1973, in Christian v. Randall.[1]  The second case is from Nevada in 1986,[2] and the third from Washington in 2007.[3]

These results are surprising only if one assumes that LGBT parents once faced virtually insurmountable barriers to retaining custody of their children after a divorce, and that those barriers have eased, or even disappeared, in recent years.   It’s the mistake of thinking that Lawrence v. Texas is more important to the custody rights of LGBT parents than Roe v. Wade.

Actually, neither of these cases is directly relevant to approval of LGBT parents raising children.  No court has ever decided in favor of LGBT parenting on federal constitutional grounds, including arguments derived from Lawrence.  But the era of Roe v. Wade, decided the same year as Christian v. Randall, was an era of possibility whose dimensions have been largely ignored in the history of LGBT rights.

That era of possibility has a name:  the sexual revolution.

In 1973, “make love, not war” was a universally known slogan, capturing both popular opposition to the war in Vietnam and the cultural changes that made openly conducted sex outside of marriage increasingly widespread and acceptable.  “Open marriages” were documented more with interest than condemnation. The feminist movement championed a woman’s right to control her own body, demanding, among other things, the end to criminal abortion laws that Roe in part accomplished.  That movement also insisted on the equal employment opportunities promised in the 1964 Civil Rights Act and the end to patriarchal marriage, in public laws and private homes.

Roe is only one of the important cases from this era.  The same year, 1973, the Supreme Court found it unconstitutional in USDA v. Moreno to deny food stamps to hippie communes, a widely recognized locus for acting out the sexual revolution; there were four votes that year, in Frontiero v. Richardson, for requiring classifications based on sex to withstand strict scrutiny; the year before the Court had ruled in Eisenstadt v. Baird that single women could not be denied access to birth control.

The movement for gay rights and liberation that grew out of Stonewall in 1969 could take advantage of – as well as contribute to – the greater permissiveness of the sexual revolution.  Its demands also dovetailed with the feminist movement’s demands for both equality and freedom.  Add in the increased availability of no fault divorce, which began in California in 1969, and the times were ripe for lesbians and gay men who had married for conventional respectability to leave those marriages and come out.  Custody disputes commonly ensued.

Many parents did lose custody of their children after coming out, but not all did.  Just as the sexual revolution and feminist calls for change had an impact on Supreme Court Justices, so they affected state trial and appellate judges.  It is in that climate that the Colorado appeals court ruled that being transgender was not sufficient basis to lose custody.

The sexual revolution ended.  The backlash began.  The Equal Rights Amendment failed.  Sex was never declared a suspect classification.  Future Supreme Courts chipped away at Roe.  Demands for equality and freedom were met head on with arguments for morality and “traditional values.” Bowers v. Hardwick was proof of those arguments’ success.  Daly and Bowers were decided in the same year.

In the mid-1990’s, the arguments shifted, relying more on social order than morality.  Opponents claimed life-long heterosexual marriage as the optimal structure within which to raise children and blamed other family forms for all social and economic problems.  Those arguments persist today, continuing to deflect attention from the wealth inequality and racism that bear primary responsibility for poverty, inadequate public education, health disparities, and other blights on our democracy.

In the aggregate, lesbian and gay parents raise children in a more supportive legal and cultural environment than that which existed in previous decades.  But virulent pockets of resistance remain.  For transgender parents, there is overwhelming resistance.  The Magnuson decision, from generally LGBT-friendly Washington state, is an example of that.

            I’m optimistic that outcomes for transgender parents in custody disputes will improve.  But I was optimistic in the mid-1970’s also, imagining that Roe, Eisenstadt, Moreno, and the momentum of the sexual revolution and feminism, all pointed towards ever-increasing freedom and support for lesbian, gay, bisexual, and transgender people, our relationships and our families.  I’m humbler now about my predictions.

This entry is a repost from Balkinization, which posted submissions from all the speakers at the conference held at UCLA last month, Liberty/Equality:  The View from Roe's 40th and Lawrence's 10th Anniversaries. Video of the speakers is available at the William Institute website here.

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[1] 516 P. 2d 132 (Colo. App. 1973)

[2] Daly v. Daly, 715 P. 2d 56 (Nev. 1986).  For a more recent opinion affirming the termination of a transgender parent’s parental rights, see M.B. v. D.W., 236 S.W.3d 31 (Ky. App. 2007).

[3] Magnuson v. Magnuson, 170 P.3d 65 (Wash. App. 2007).

Male UPS employee Calvin Radtke, and his MTF trans wife, Christine Radtke, are legally married in Minnesota

In 2005, Calvin Radtke and Christine Alisen were married in Minnesota.  Calvin works for United Parcel Service, and he added Christine to the health care benefits plan provided by his employer and administered through Miscellaneous Drivers and Helpers Union Local #638 Health, Welfare, Eye and Dental Fund ("the Fund").  Five years later, when various Fund employees realized that Christine was born a man, the Fund terminated her eligibility for coverage.  The Fund took the position that the couple was not legally married because Minnesota does not recognize same-sex marriage and sex as "observed and recorded at the time of birth" determines whether a person is male or female.

Christine filed an action against the Fund in federal district court in Minnesota.  (The case is in federal court because the employee benefits are governed by a federal statute -- ERISA -- and such cases are heard in federal court.)  On Monday, District Court Judge Michael J. Davis (a Clinton appointee) ruled that Calvin and Christine are legally married and that the Fund erred in dropping Christine from coverage.

Christine participated in the Transgender Program at the Univeristy of Minnesota Medical School in the 1980's.  In 2003, she had sex reassignment surgery.  In 2005, she obtained a court order changing her name and directing the Wisconsin State Registrar to issue a replacement birth certificate in her new name and gender.  Wisconsin did so, and a month later Christine and Calvin married.

In the litigation, the Fund cited court rulings from other states holding that a person's sex is determined at birth.  In one of the most nefarious cases, Kantaras v. Kantaras, the Florida appeals court held that Michael Kantaras was not the father of the children his wife conceived through donor insemination because he was not legally married to her at the time of conception since he had been born a woman.

Judge Davis noted that cases from other states were irrelevant.  The only issue was whether the couple was married under Minnesota law.  Judge Davis concluded that if Christine was female under Minnesota law then she was Calvin's legal spouse.  He determined it was inappropriate for the court to "invent" a federal definition of sex based on sex assigned at birth.  Rather, he determined it was proper to look at Christine's current birth certificate and official documents issued by Minnesota.  Like most states, Minnesota allows a person to change his or her sex on a birth record after sex reassignment surgery.  Minnesota does this after a court order or a letter from a doctor that the person "has completed gender reassignment surgery or hormone therapy."  (Note that this suggests that surgery is no longer required in Minnesota, something especially important for FTM transgender individuals). Wisconsin does this as well, which is why Christine was able to get a new birth record there.

The Court then noted that "the only logical reason to allow the sex identified on a person's original birth certificate to be amended is to permit that person to actually use the amended certificate to establish his or her legal sex for other purposes, such as obtaining a driver's license, passport, or marriage license."  "There is no basis," the Court continued, "to conclude that Minnesota recognizes Plaintiff as female for some purposes -- birth records and driver's licenses, but not for others -- marriage certificates."  Thus, Christine is a woman and the Fund was wrong to drop her coverage.

While the case was pending, the Fund actually amended its definition of eligibility to explicitly state that in deciding whether a marriage is between a man and a woman, it will recognize only "the anatomical sex of the individual at the time of birth."  Really?  The Fund has an independent stake in the resolution of this issue?  This is truly an outrage.  The Court in this case was not in a position to address the validity of this definition because the Fund had yet to apply it to Christine (and might not).  But it might be a matter of time before another individual faces this rule.

Of course if same-sex marriage were recognized the issue of Christine's legal sex would be irrelevant here.  But until then cases will continue to occur whose resolution turns on the sex of one spouse.  I find the ones concerning parentage, like Kantaras and another case not cited by the Court, In re Marriage of Simmons, from Illinois, especially troubling.  In those cases, children lost a parent as a result of the court's refusal to recognize either the marriage or some other basis for determining parentage.

This is an important ruling because it stands in contrast to the many decisions ruling otherwise.

Transgender father and his family featured on StoryCorps

Last Friday's StoryCorps excerpt on Morning Edition featured a conversation between Les and Scott GrantSmith as their 25th wedding anniversary nears.  When they married, Les was a woman; the couple then had two children.  Fifteen years ago, Les told Scott she was a woman in the wrong body; she feared Scott would leave and take the children with him. Instead, the couple stayed together.  Be sure to click on the link on the website that leads to an excerpt of the conversation between Les and his two daughters, Amanda and Thea; that part did not air on the radio.

Les's fear that transitioning would cost him his children is quite reality-based.  Judges are extremely reluctant to grant custody to a trans parent.  This is especially true if the children show any signs of anxiety or distress, even though such reactions may be both normal and exacerbated by the reactions of their non-trans parent.  One of the most poignant parts of the exchange between both Les and Scott and Les and the children is when Les says he would not have transitioned if it would have meant losing the children.  His younger daughter was seven years old at the time.  I have to wonder if he really believes he could have spent the subsequent decade living with the depression that finally brought him to talk to Scott.

I am sure many listeners are incredulous that Scott and Les remained together through this process.  I don't know of any statistics, but I do know other couples, both personally and through accounts of others, who stay married through one spouse's transition.  Those families do not wind up in front of judges. Forty years ago, all judges needed to be educated about gay and lesbian parents, to break down myths and stereotypes and allay fears that children would be harmed living with a gay father or lesbian mother.  As readers of this blog know, such prejudice continues today in some parts of the country.  Well, for trans parents, we are back where we were in the 70s with lesbian and gay parents.  I give a lot of credit to Scott for adapting to a circumstance he could have never imagined the day he got married and for believing that Les remained a good parent to their children.  For those whose transition stories don't have this happy ending, we need massive judicial education as well as resources for families and clinicians.

Wisconsin first grade teacher sets great example for dealing with gender variance among children

Thanks to Shannon Minter for alerting me to this heartwarming account of a Jackson County, Wisconsin teacher's experience with a gender variant first grader.  Melissa Bollow Tempel, in "It's Okay to be Neither," sets an amazing example of how to deal with gender issues in the classroom, including a girl, Allie, who was often taken as a boy.  Equally heartworming, the girl's parents were accepting of their child.  When the teacher called home to ask if she should correct children who said Allie was a boy, Allie's mom asked her what she wanted.  (She wanted the teacher to tell them she's a girl).

There's a growing number of custody disputes between divorced parents who disagree about how to deal with a gender variant child, including children who meet the diagnostic criteria for GIDC (gender identity disorder - children).  Judges are inclined toward the parent who wants to discourage gender variance.  I'd like this Wisconsin teacher's approach to gain ground among teachers and all who deal with children, in the hope that judges will catch on.

Primetime My (Extra)Ordinary Family sends mixed transgender message

I was all excited about the ABC Primetime program last week on transgender children. Especially excited because in my class this coming week I am teaching a court opinion in a dispute between divorced parents over custody of their son who wants to dress like a girl. The court sides with the father, who insists the child's gender variance should be discouraged. The case is as painful to read as those in which a trans parent loses his or her child after transitioning -- including having parental rights terminated, the most extreme measure the state can take against a parent.

Just a couple of years ago, Barbara Walters did an extraordinary job covering trans kids on a 20/20 special. Same network. I figured it would be just as good.

Well some of it was. The journey of a couple to understand their son who always knew he was a girl...including their decision to allow him to start a new school year, at age 10, as a girl. (The child's older sister goes into the classroom first to explain to the situation to the other students. Priceless.) The mom who wrote a book, "Princess Boy," because her son said that's what he was. Even the 19-yr-old MTF who finances her surgical procedures by earning money as a sex worker. That was hard to watch but it felt real.

But there was a catch. A big catch. Let's call him the repentant transexual. A man who decided in his 30's to transition to a woman who later regreted it and had surgery to revert to being a male. What was the point of this segment? If I have to ask the old Sesame Street question -- which of these things is not like the other? --this segment wins and it's not because he regreted his choice. It's because he was never a transgender child. That's right. A show about trans children -- young people, some very young, who know they are not the gender that matches their bodies -- with one segment about a man who never thought he was a different gender as a child and who makes his later journey sound like it was about fitting in with the trans friends he had later in life.

Maybe the producer of the show thought this added some kind of "balance;" maybe someone at the network thought such balance was necessary. But this wasn't balance. It was an adult describing a life trajectory completely different from everyone else's. All it will do is fuel the fire of those who are convinced there is no such thing as a transgender person, young or old.

Shame on you, ABC.

National Geographic Explorer does good job on gender

As a young law student and lawyer in the 1970’s, John Money was one of my heroes. John Money was a Johns Hopkins University psychologist who researched gender and sexuality. He concluded that sexual orientation was fixed at a young age and that a lesbian mother could not “make” her child gay. He was willing to testify for gay parents when their custody or visitation rights were challenged by their heterosexual ex-spouses. When you remember that Anita Bryant was getting gay rights ordinances repealed by arguing the need to “save the children” from “recruitment” into homosexuality, you can see how important it was that a respected expert would say that custody with a gay parent would not make a child gay.

Dr. Money also articulated the difference between sexual orientation and gender identity; and concluded that nothing about gay and lesbian parents would make their girl children identify as boys or their boy children identify as girls. This, too, was an important part of debunking the myths and stereotypes that cost so many parents who came out after heterosexual marriages access to their children.

Unfortunately, Dr. Money also believed that gender identity itself could be molded through upbringing if started at an early age. And this was his downfall. In what may his most famous case, he persuaded the parents of a boy whose circumcision had gone wildly wrong and resulted in destruction of the penis that their son could be turned into a daughter through surgery to create female-appearing genitalia, through hormones, and through consistent upbringing as a girl. The life story – and ultimate suicide- of Money’s victim, David Reimer, was told in As Nature Made Him.

I thought of Money while watching an excellent National Geographic Explorer episode, Sex, Lies, and Gender. The show highlights three distinct situations: intersexed individuals, focusing on a soldier whose MRI well into adulthood reveals that he has ovaries; transgender children, focusing on one family whose son identified immediately as a girl and how his parents came to allow the child to be fully herself; and the hijra in India, focusing on one person who balked at an arranged marriage to a woman, was ejected from his family, and went on to become an advocate for hijra, also known as the “third sex.”

I highly recommend this program. Among other things, it rightly criticizes Dr. Money for the damage he and his theories caused. That I remember the contribution he once made towards educating judges and the public about gay and lesbian parents in no way excuses the harms he caused by believing that gender was malleable at birth.