Sonia K. Katyal*
Ilona M. Turner**
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.
*Haas Distinguished Chair and Chancellor’s Professor of Law, University of California, Berkeley.
**Mediator and attorney; former Legal Director, Transgender Law Center. We are particularly indebted to two great trailblazers of transgender equality in family law, Jennifer Levi and Shannon Minter, and also to Kathryn Abrams, KT Albiston, Carlos Ball, Dick Buxbaum, Erwin Chemerinsky, Alexander Chen, Mel Chen, Paisley Currah, Seth Davis, Catherine Fisk, Jackie Hemann, Joan Hollinger, Clare Huntington, Courtney Joslin, Neal Katyal, Christopher Kutz, Joy Milligan, Doug NeJaime, Nancy Polikoff, Cliff Rosky, Bertrall Ross, Simone Ross, Andrea Roth, Lis Semel, Steven Davidoff Solomon, Eric Stanley, Steve Sugarman, Jennifer Urban, Leti Volpp, Michael Wald, and John Yoo for helpful conversations and commentary. We are also indebted to Leslie Booher, Justin O’Neill, Aniket Kesari, and Renata Barreto for excellent research assistance, and to the editors of the Michigan Law Review for their hard work. The authors wish to thank all our trans chosen family, friends, colleagues, clients, students, and mentors who have shared their journeys with us, generously corrected our mistakes, and showed us how to be better allies, advocates, and humans. Finally, we dedicate this Article to the memory of Suzanne Daly and to the Pacific Center here in Berkeley.