Child Custody (The awarding of) and transsexuals

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The Transsexuality of a Parent as a Factor in the Award of Child Custody
and Visitation Rights


Commentary

"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 physiological upervision 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 Michigan.
    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 "hesi</sup>tate 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."

Notes

  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.).

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