Balkinization: Progress and LGBT Parents

Progress and LGBT Parents

Guest Blogger

Nancy D. Polikoff

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

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.

Nancy D. Polikoff is Professor of Law at American University, Washington College of Law. You can reach her by e-mail at npoliko at wcl.american.edu

[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).

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