Transparenthood

76 Pages Posted: 30 May 2019 Last revised: 14 Jun 2019

See all articles by Sonia Katyal

Sonia Katyal

University of California, Berkeley - School of Law

Ilona M. Turner

Transgender Law Center

Date Written: May 17, 2019

Abstract

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.

Suggested Citation

Katyal, Sonia and Turner, Ilona M., Transparenthood (May 17, 2019). Michigan Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3390045 or http://dx.doi.org/10.2139/ssrn.3390045

Sonia Katyal (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Ilona M. Turner

Transgender Law Center ( email )

1629 Telegraph Avenue, Suite 400
Oakland, CA 94612
United States

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