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Transgender Family law

AuthorHouse

Contents

Preface —Jennifer L. Levi.........................................................................................xviiAcknowledgments..........................................................................................................xxiContributors.............................................................................................................228Appendix.................................................................................................................232

Chapter One

Benjamin L. Jerner

Introduction

Representing transgender clients presents attorneys with work that is often unique, challenging, and rewarding. A bit of preparation and a few changes to office policies and procedures can go a long way toward providing representation that is effective and makes the experience as comfortable as possible for transgender clients.

An important first step is for the attorney to establish a welcoming and respectful environment at the firm or legal services office before the client's initial contact. To be an effective advocate the attorney may have to educate herself/himself about transgender people's lives as well as about some new legal issues in the area of domestic relations. The attorney must also be prepared, where a client's transgender status is relevant, to educate the court, opposing counsel, and other interested parties about transgender issues and, where the client's transgender status is not relevant, to shield the client from attacks or bias based on it. Finally, in the emerging and constantly changing area of transgender law, the attorney must be mindful that particular legal positions and tactics may impact not only the transgender client, but also the larger community.

1.1 Key Terms Defined

Attorneys should be familiar with the terminology generally used to describe transgender individuals and other terms related to gender identity and transition, while also being aware that most of these are not legal terms of art and may be used variously depending on a client's age, race, ethnicity, socioeconomic status, geography, personal preference, and other demographic and individual considerations. As a result, each attorney needs to take into account her/his client's preferences as well as the local legal and political climate in determining how best to frame such issues during the course of representation.

While this chapter is intended to be a resource and an introduction to key terms that are used in this publication and that an attorney may encounter in representing transgender clients, an attorney should ask her/his client open-ended questions and respect and mirror the language s/he uses to self-identify and to explain her/his life experiences. Where the attorney determines that use of the client's post-transition name, sex, and/or pronoun—with a court, with opposing counsel, or with experts—may compromise the client's claim, the attorney should advise the client regarding the attorney's determination but should respect the client's decision about which language to use.

"Gender identity" refers to one's internal sense of being male, female, both, or neither.

"Gender expression" is the way in which a person expresses her/his gender identity through mannerisms, behavior, dress, or appearance.

"Sexual orientation" is the term typically used to describe the direction of a person's romantic and physical attractions. People may be attracted to others of the same sex, others of a different sex, or some combination of those two. Gender identity and sexual orientation are different components of one's identity. A transgender person (or a person who has a transgender partner) may identify her/his sexual orientation as heterosexual, gay, lesbian, bisexual, or queer.

"Transgender" is a term used to refer to individuals whose gender identity or gender expression does not, in some way, match stereotypical expectations based on the sex they were assigned at birth. For example, most persons assigned the sex of female at birth are expected to and do grow up looking, behaving, feeling, and living like a girl and then a woman. Most persons assigned the sex of male at birth are expected to and do grow up looking, behaving, feeling, and living like a boy and then a man. A person who identifies as transgender often does not match this stereotypical paradigm, and/or may live as a different sex from the one assigned to that individual at birth.

"Transsexual" typically refers to someone whose body and gender identity do not match and who transitions by undergoing medical treatment. This includes living full-time consistent with her/his gender identity, taking cross-gender hormones, undergoing a range of surgeries, or any combination of these three therapeutic modalities, to bring her/ his body and gender identity more in line. "Transsexual" has historically been the term most frequently used in case law to describe transgender people, although the use of "transgender" has become increasingly common in case law in recent years. When searching for family law cases involving transgender people, an attorney should be sure to include the search terms "transgender" and "transsexual."

"Gender identity disorder" (GID) is the underlying diagnosis used by psychological and medical professionals to identify persons who experience "gender dysphoria," the clinically significant distress associated with the incongruencies of assigned birth sex, physical body, and gender identity. Treatment for GID is tailored to an individual's medical needs and desires and can range from psychotherapy to physical transition, which may include support for living full-time in the desired gender, hormone therapy, sex reassignment surgery, or any combination of these. It is important to note that the feeling that one's gender is inconsistent with one's birth sex is not, in and of itself, considered to be a mental disorder. It is only considered to be a mental disorder if those feelings cause substantial and clinically significant emotional distress or impairment in the person's functioning.

"Gender transition" or just "transition" is the process by which a transgender person begins to live in accordance with her/his gender identity. This is often done under the supervision of medical and mental health professionals.

"Intersex" is a general term used for a variety of conditions in which a person is born with reproductive or sexual anatomy that doesn't fit the typical definition of male or female. "Disorders of sex development" (DSD) is increasingly being used to refer to intersex persons.

"Crossdresser" is a term that refers to people who sometimes or often dress, behave, and/or present in ways that do not meet stereotypical expectations associated with their birth sex. They may or may not have a gender identity consistent with the sex associated with their dress or behavior.

"Genderqueer," "gender nonconforming," or "gender variant" are terms that refer to people whose gender identity is either both male and female, is neither male nor female, or are in some ways identified with a sex different than that assigned to them at birth. Some, but not all, people who identify as genderqueer, gender nonconforming, or gender variant consider themselves transgender.

"Female to...