THEORIZING TRANSGENDER FAMILY JURISPRUDENCE
Transgender  parents or parents-to-be occupy a uniquely precarious legal position in many Western democracies. A vindictive ex-partner may litigate for exclusive custody; employers may, according to collective bargaining agreements, refuse to recognize the validity of the child-parent relationship and so deny family benefits, maternal, paternal and bereavement leave; the courts may deny trans parents visitation rights, inheritance, and even their very identity as mother, father or parent. Further, because a “good parent” is defined as someone with job security, a house, loving relationships with their children, and their own “mental stability”, trans claims to parental rights can be undermined by arguments indirectly and covertly related to their status as trans persons. These constraints can produce deleritious effects on the health and well-being of trans persons. Thus, trans lives are beholden to and overdetermined by legal discourse. Here, I take the position that social justice advocates must analyze not only the effects of legal discourse on the health and well-being of marginalized subjectivities, but also consider how that discourse produces marginality (c.f. Sherwin, 1992, p. 222).
This paper is based upon U.S. and key U.K. case law related to transgendered person’s status as parents and spouses. My principal aim is not, however, to analyze trans lives and their successes or failures in gaining legal recognition; instead, it is to analyze the legal and ancillary discourses that frame transgender subjectivities. In this capacity, I hope that in speaking about trans people, I also speak broadly to some common ways in which marginalized lives are regulated. In visibilizing these processes, I hope to refine tools for critical analysis of social hegemony and institutionalized oppression.
This paper proceeds in three parts. First, I introduce my theoretical perspective by exploring the constitution of the trans subject under liberalism, and recruiting post-structuralist tools for discourse analysis. Second, I will apply these tools to review a small selection of U.S. trans family jurisprudence. Through this case law, I explore how norms of sexuality, gender and class are manipulated. Finally, I conclude with a brief discussion of how trans legal activism has met the challenges of rights disenfranchisement.
Situating Trans Subjects within Liberal Theory
In the following section, I elaborate the theories informing my analytical framework, and tie in their relevance to this discussion of TG/TS juridical discourse.
Liberalism is premised on securing personal freedoms by limiting constraints on the individual (Squires, 2002, 166). To simplify, this is accomplished by a social contract dividing life into a public sphere, where state politics play out in with but indirect accountability to citizens, and a private sphere, where citizens may pursue their own private interests unhindered by the state (Shklar qtd. in Squires, 2002, 166). Many feminist political theorists, however, have torn asunder liberal theory for many important reasons, including a) its totalizing conception of citizen subjectivity that elides inequities of gender, race, class and other identities and b) the invisibilization of a third sphere – the personal or familial sphere. Therein, Carole Pateman and Susan Okin argue, the subordination of women is accomplished by granting de facto tyrannical power to the male heads of household to extract sexual, reproductive, domestic and other labour through mechanisms both coercive and violent (ibid., 167-168). Further, Pateman notes the falsity of liberal prohibitions on intervention in the personal / familial sphere by pointing to regulatory mechanisms intended to guarantee heteronormative, patriarchical relations at both micro (domestic) and macro (civil) levels of society.
Against this theoretical backdrop, trans subjects are essentially incoherent. Despite extensive research, I have yet to find anything theorizing the relationship of trans parents to the liberal state. Like women who claim and exercise civil rights supposedly afforded them by liberalism, the very subjectivity of trans parents presents an affront to normative constructions of the family so central to nation-state projects. Thus, this paper hopes that examining both a) how trans parents negotiate their subjectivities as rights-bearing individuals within the supposedly autonomous private sphere and b) how institutions, principally legal and medical in this instance, discipline subjectivities incompatible with perpetuating inequitable power relations reveal the complex mechanics of hegemony and indicates useful sites of resistance.
The public / private dichotomy is materialized through a variety of discursive formations, from family politics as indicated above, but also representational practices in popular culture, academic discussions, governmental policies and labour relations. Here, I focus on its instrumentalization through the law. Both legislative and case law are formative determinants of social life. Family law establishes strict parameters around a patriarchical and heterosexist construction of the family via rewards for the normative and censure for the abnormal. Further, the law is a site of cultural production. According to cultural theorist Pierre Bourdieu, “the law is the quintessential form of the symbolic power of naming that creates the things named, and creates social groups in particular” (Bourdieu qtd. in Johnson, 2000, p. 168). Thus, the law has both epistemological and ontological power. Through becoming recognized before jurisprudentially privileged ways of knowing, subjectivities come into being. Trans persons struggle not only for their rights, but against the erasure of their very human-ness. 
In attending to the law’s epistemological and ontological practices, I employ Foucault’s theories of social discipline. In Discipline and Punish, Foucault posits that the production, through ‘discipline’, of abject and normal bodies is essential to the state. Further, he argues that since the 18th century, the principal site of production has become increasingly diffuse and deinstitutionalized, shifting from state generated displays of abjection, such as torture, to the housing of disciplinary mechanisms within citizen subjectivities (Rouse, 1994 p. 95). “[T]he new citizen subject”, Razack explains, “was a figure who, through self-control and self-discipline, achieved mastery over his own body” (2002, p. 11). The success of this shift is indicated by the invisibility and naturalization of disciplinary mechanisms. In this regard, transgender jurisprudence has failed spectacularly. TS/TG court cases inevitably attract the attention of the media and general public, and the markedly uneven application of the law indicates a profound jurisprudential unease. Trans bodies indicate a serious failure of internalized disciplinary regulation of gender and familial norms. Hence, disciplinary formations, such as the law, have mobilized to reaffirm these hegemonic norms through, as the case law below will demonstrate, mandating the epistemic and visual objectification of trans persons.
Using the public/private divide as a key to understanding the hegemonic imperatives of trans jurisprudence, I proceed now to my discussion of trans parents’ case law in the U.S. By interpreting these cases through a Foucauldian lens, I wish to convey the complex and often contradictory means by which trans parents are (not) achieving recognition and rights, and establish an evaluative groundwork for the strategic recommendations I issue in part three.
Case Law and Trans Subjectivity
In this section, I closely examine how trans subjectivities are constituted before the law through U.S. and European case law. My examination reveals a juridical vacillation between the inscription of normality and abjection on trans bodies. This shift turns not on judicial caprice, but an inconsistent attempt to stabilize orders of gender and sexuality. Importantly, the constitution of trans subjectivities also recruits discourses ancillary to the law, including psychiatry, medicine and sexuality, and so illustrates the difficulties legal discourse encounters in attempting to resolve trans bodies.
Herein I refer to both marital and parental / custodial trans cases. Marital cases brought before British and American common law generally seek ‘nullification’. Nullification, or annulment, strikes the marriage from the public record, effectively erasing it from history and taking both parties back to their “original starting position” (Flynn, 2006, p. 40). This eliminates any fiduciary, legal or other responsibilities between the two parties, and can make it exceedingly difficult for a non-biological parent to retain custody and access to their children. Grounds for annulment include reproductive incapacity, sexual incapacity, defined as a “lack of consummation” and / or a lack of vaginal penetration, and fraud (ibid., p. 41). Annulment depends upon genitocentric legal distinctions which assume and privilege a heteronormative interpretation. Thus, trans marital jurisprudence is interlocked with juridical determinations of gender, sex and sexual capacity – in essence, the very ontology of the trans subject.
Corbett (1970), a British decision which granted marriage annulment to a Mr. Arthur Corbett (the petitioner), a non-TS man and Ashley Corbett (the respondent), a TS, post-op woman, is foundational in transgender jurisprudence; it has been drawn upon internationally as a legal precedent (Sharpe, 2006, p. 622).  In his reasoning, Judge Ormrod recalled Hyde v Hyde (1866) which established the essential nature of marriage as being between a man and a woman.  While this heterosexist affirmation is not new, what distinguishes Corbett is the “sex test” that Ormrod developed and employed to deny Ashley Corbett her femaleness. Ormrod’s test required a consistency between chromosomal, gonadal, genital and psychological factors (Sharpe, 2006, p. 622). Sex at birth, in Corbett, is sex for life. However, Ashley Corbett, as a post-op MTF transsexual, had an artificial vagina, satisfying at least one of Ormrod’s criteria; additionally, Ormrod would not categorize Ashley Corbett as a ‘man’ owing to her psychological, social and cultural womanness. Notably, Ormrod’s decision speculated on the different character of vaginal and anal intercourse, despite its legal irrelevance to the case. For Whittle, this marks the start of a thread of judicial preoccupation with sexualizing trans identities that courses through the history of trans jurisprudence. (2002, p. 9). “Normal” intercourse, Ormrod writes, was not possible for this couple.
Ormrod’s decision has been roundly criticized for its use of highly selective criteria to determine sex, and its homophobic discussion of sexual practices. Importantly, Ormrod’s decision is supported by a process of dehumanizing and de-sexualizing Ashley Corbett’s body. Ormrod’s multi-pronged sex criteria leaves Ashley Corbett in a sex-less and gender ambiguous legal state. Her subjectivity is erased in Corbett. A contradictory trope of hypersexualization, however, also emerges, where the details of Ashley Corbett’s capacity for vaginal and anal intercourse are “to be measured in centimeters” for Ormrod (Whittle, 2002, p. 9). These interwoven narratives of homophobia, invisibilization and sexual objectification are reasserted in more recent transgender jurisprudence.
In Daly v Daly (1986), Suzanne Daly, a MTF transsexual biological father had her parental rights terminated.  Daly underwent a “complete change of sex” without informing her ex-partner or their daughter. The mother had custody rights and Suzanna had visitation rights. When her daughter visited for the summer, Daly asked her to withhold news of her sex-change. Subsequently, the Nevada Appellate Court stripped Daly’s visitation rights, a decision that the Nevada Supreme Court upheld, describing Suzanna as “a selfish person [who] … in a very real sense, has terminated her own parental rights as a father. It was strictly [her] choice to discard … fatherhood and assume the role of a female” (Nev. S. Ct., qtd. in Flynn 43). In an article broadly uncritical of U.S. trans case law, the author justifies termination of Daly’s rights by referring to Daly’s failure to protect the child from “the potential adverse affects which might be present [alongside a revelation of transsexualism]”.  Nowhere in the uncredited discussion nor in Taylor Flynn’s is any consideration of the law’s complicity in producing such “adverse affects”, nor their responsibility as a liberal institution to mollify difference in rendering decisions.
Daly, like Ashley Corbett, was produced as an abject subject before the Nevada Appellate and Supreme Courts. I read the prohibition on contact with her child as a Foucauldian disciplinary action to punish and deter transgression of a dyadic, patriarchical gender order. The Supreme Court’s description of Suzanna as selfish and responsible for her own parental unmaking essentially accords Suzanna as responsible for a failure of her internalized disciplinary mechanisms that should have controlled her gender transgressive urges. The court concludes by offering a slim window of possibility to Suzanna to resume visitation rights: “… if and when … [by] proper evidence presented … with a thorough investigation by the trial court with expert investigation and advice … there may be a time when the trial court can order visitation” (qtd. in Flynn p. 42). The multiple levels of subordinated clauses in the court’s statement not only militate against the possibility of visitation, but attest to the disciplinary gaze to which Suzanna must submit herself in proving that she has sufficiently auto-inscribed hegemonic norms consummate with the courts’.
Retaining custody or visitation rights is not an impossibility for trans parents. However, trans parental rights are almost always contingent upon a performance of stability legible to the courts. ‘Stability’, much to the chagrin of trans litigants, is a deliberately ambiguous and inconsistently utilized word. It can cover, as in Corbett, meeting tests of sex-determination and a capacity for heterosexual intercourse. In the proceeding cases, the criteria for ‘stability’ expand to include psychiatric and additional medical monitoring and evaluation. In Re: V.H., the transvestite, biological father was awarded custody following the dissolution of his marriage.  However, this was conditional on him never cross-dressing in front of his daughter, nor having any literature relating to transvestism in his home. Similarly, In D.F.D., a cross-dressing father received custody after expert testimony indicated that the father would no longer cross-dress.  Finally, in re: T.J., the clinically diagnosed “gender dysphoric” father was awarded custody on condition that he undergo therapy, “maintain his male identity”, and where his child did not manifest any gender identity problems (Minter, 2003).  Disciplining works through rewarding positive behavior as much as punishing undesirable behavior. What stronger bulwark against breaching gender boundaries could there be beyond the threat of losing your child?
The preceding “successful” custody cases were all conditional on a circumscription of “gender dysphoric” behavior. In order to understand how such behavior is regulated, it is essential to understand how the medicalization of trans identities has heavily structured their lives, and, in particular, their success in litigation. “Gender dysphoria” is a mental disorder documented in the standard diagnostic manual of mental health professionals, the DSM IV.  Procedures for assessing and treating gender dysphoria, however, have been codified in the Harry Benjamin Institute Standards of Care (SoC).  This document, drafted by non-trans medical and legal professionals, reiterates the pathological characterization of trans persons. Harry Benjamin was a progressive doctor who treated performed some of the first U.S. gender reassignment surgeries in the 1960s, and so the SoC issues guidelines on approval for and the nature of surgery. Surgery can run over $100,000, is rarely covered even partially by employer insurance, and can be dangerous. However, the SoC figures surgery as a “cure” for those who are true transsexuals and have demonstrated that they are mentally, emotionally and socially prepared to transition. Furthermore, for the courts to recognize a change in gender for purposes of identification, employment, custody, marriage, prison placement, health care, immigration etc., being “post-op” is a standard criteria. Although some jurisdictions will accept pre-op applications to change gender status, recognition of the applicant’s changed gender may not be honoured in other jurisdictions.
This panoply of structural barriers generated by the medical and legal discourses to trans subjectivity recognition engenders profound inequities across race, class, nationality and even language. The brief sampling of court cases selected demonstrates the serious legal and cultural barriers to the incorporation of trans rights and subjectivities. However, this discussion of the achievement of trans rights elides all those trans persons who were never able to make it to the court. As in the U.S. gay and lesbian rights movement, the “watershed” legal victories in trans jurisprudence have usually concerned persons who embody a comprehensive set of normative markings – white, employed, English speaking, university educated, etc. (Minter, 2006). Furthermore, such juridical preoccupation implies that those trans persons absent from the courts must not have any rights, or are incapable of advocating for themselves in other forums. This assertion is clearly incorrect, and ignores the multiple, flexible and shifting ways in which marginalized subjectivities negotiate their lives. Investigating such alternative methods of attaining recognition as rights-bearing subjects is beyond the scope of this paper; however, I wish to signal, as I turn to my final discussion of trans rights strategies, that while the law functions as a discursive circumscription of subjectivity that cannot simply be ignored out of existence, equally there exists an ‘outside’ to the containment of legal discourse (Garber, 2006).
Strategizing for Some/bodies’ Rights
Strategizing for trans rights within existing human rights frameworks is by no means an inherently inclusive approach. As Ratna Kapur and Sherene Razack have argued, the human rights framework is, in fact, inherently exclusionary, owing to its grounding in the same universalist assumptions noted in my earlier discussion of liberalism. [12, 13] Universality is a misnomer for normality, and it is the inscription of normality upon the (trans) self that renders an-other subjectivity abject. Thus, a movement to attain recognition and rights for all persons, including trans individuals, is militated against both by the rights-seekers and the discourses and institutions who ‘grant’ these rights. In this final section, I will provide a brief sketch and briefer critique of U.S. trans-activist attempts to attain human rights, and close with a few remarks on pedagogical implications of studying the legal regulation and constitution of trans subjectivities.
U.S. and Canadian trans legal activists have focused, at the statutory level, on incorporating transgender persons into existing anti-discrimination protections, or through establishing a new ground of discrimination, typically “gender-identity”. With regards to existing statutes, trans legal activists have argued for rolling trans protection into sex, sexuality or disability discrimination (findlay, 1996, findlay 1999; Levi 2000-2001; Levi, 2006; Minter, 2003; Minter 2006; Paisley and Minter, 2000; Robson 2006; Whittle 2002). U.S., Canadian and UK activists have met with varying degrees of success. In the U.S., progress is tethered to the specific state and municipal political climate, as the U.S. Supreme Court and Congress are loath to pass anything so controversial as protections for trans rights. The broad impacts of progressive statutes and case law on society remain to be seen; however, their effect is salient within legal discourse. Transgender jurisprudence is an extremely vibrant aspect of the law and activists and legislators are daily expanding the breadth of trans legal protections (Whittle, March 2007).
Many trans scholars, however, remain skeptical of the advances in trans law, and are quick to point out its inadequacies and even harmfulness. Viviane Namaste, a Quebec trans activist and Concordia University professor argues that much trans activism is anglocentric, imperialist and reflects a lack of concern with challenging broader, interlocking inequities. For instance, trans activists employed by the City of San Francisco secured trans-specific health coverage (including support for surgery, hormones, counselors etc.) after a long campaign. A spokesperson for the movement, James Green, declared it a victory for “trans people everywhere … [one day, we’ll] be able to get medical treatment … just like everyone else” (Namaste, 2005, p. 107). Green presumes that all non-trans persons have health coverage, eliding the realities of deep social inequities along class and racial lines in particular. Furthermore, by foreclosing critique of the legitimacy of for-profit, private insurance health care, the entire campaign, Namaste argues, is a step forward for some (the 12 trans employees of San Francisco) at the cost of deepening the marginalization of unemployed and undereducated workers, both trans and non-trans.
While tangential to legal discourse, Green’s campaign embodies the seductive danger of attempting to curb marginalization through legal engagement. Marginalized subjectivities who gain recognition before the law may be compelled, as we saw in Re: V.H. and Re: D.F.D. to restrict their gender, sexuality or other behavior, or they may, like Green, not have to make any compromise at all. In both circumstances, however, other subjectivities are inevitably affected by the discourses of normalization recruited.
All engagements with discursive formations, as Stuart Hall and other cultural theorists have demonstrated, are culturally productive. Bearing this in mind, my argument is not that there is no hope of legal recourse for transgender parents, or that any legal victory will inherently be undermined by a reinscription of hegemonic norms. Instead, I argue for the adoption of a profoundly critical assessment of the legal institution – and all other discursive formations that regulate trans bodies – as the point of departure for both trans rights activism and strategic litigation.
Conclusion: Critical Pedagogies
Is there a third way between capitulation before the legal gaze and ignoring or hiding from it? In the face of legal successes that some trans persons are achieving, advocating a retreat from the law is untenable. Asking those whose rights are actively being denied them to exclusively critique the laws that affect them erases the privilege of those who hold ‘normalized’ subject positions. So, I propose two ideas. First, it is essential that we recognize that the law conceives of itself as a neutral institution generating outcomes consonant with liberalism. Liberalism allows whomever is deemed ‘normal’ to feel deeply secure in their enfranchisement as valued citizens of the nation-state; thus, if we’re to speak of ‘destabilizing’ the law, we must first learn to destabilize our own, normative, notions of self. Second, insofar as scholars repetitively invoke one another to adopt ‘deeply critical’ relationships to hegemonic institutions and ideas, it is essential that we unhinge theory from the elitist academic discourse that evacuates its liberatory potential. Beyond considerations of the impact of scholarship in courses, seminars, journals and books, we must ask, “who will read this, and to what end?”. In the absence of finer words of my own, I close in deferring to Kapur:
We must reimagine the basis of humanity by critiquing epistemology and metaphysics, reexploring the notion of the self as individual in a dualistic relationship with the Other, and recognize that neither history nor time is linear – that we have to move deeper, not forward. – Ratna Kapur
1 Following Stephen Whittle’s terminology (2002), I employ ‘trans’ to signify all those who identify their gender in some way in opposition to or outside of their birth-assigned gender role. ‘Transgender’ (abbreviated ‘TG’) indicates those who wish to live a large part of their adult life in opposition to or outside of their birth-assigned gender role, and ‘transsexual’ (abbreviated ‘TS’) to indicate a person who desires, is having or has had surgery intended to verify and / or produce a gender reassignment.
2 In re Estate of Gardiner, 42 P.3d 120 (Kan 2002), the court ruled that she was neither female nor male in its decision to deny Gardiner rights to her bereaved husband’s estate. Since there is no legal recognition for a non-gendered subjectivity, Gardiner was essentially deprived of her humanity before the law.
3 Corbett v. Corbett (otherwise Ashley),  2 All E.R. 33. For the full judgment, please visit this link.
4 Hyde v Hyde (1866) LR 1 P & D 130.
5 Daly v Daly, (1986) 715 P.2d 56 (Nev. S. Ct.)
6 “The Transsexuality of a Parent as a Factor in the Award of Child Custody and Visitation Rights” link, see footnote 71. This article was not intended to be published anonymously; unfortunately I have been unable to find either the associated publication date, author, publisher, etc. However, the article has extensive references and should be treated as a reliable source. I chose to include it because of its pertinence and sophisticated, academic discussion of U.S. trans parent jurisprudence.
7 Re: V.H., 412 N.W. 2d 389 (Minn. Ct. App. 1987)
8 Re: D.F.D. and D.G.D., 261 Mont. 186 (1993)
9 In re T.J., Minn. App. LEXIS 144 (1988)
10 DSM Diagnostic and Statistics Manual IV, 1990.
11 Harry Benjamin Standards of Care, 1985.
12 Ratna Kapur, “The Dark Side of Human Rights”, lecture at University of Victoria, Tuesday March 6, 2007
13 See Sherene Razack, Looking White People in the Eye (2000), and “When Place Becomes Race” in Race, Space and the Law: Unmapping a White Settler Society (2002)
“Transsexuality of a Parent as a Factor in the Award of Child Custody”, link. Retrieved March 9, 2007.
Curray, Paisley and Shannon Price Minter. 2000. Unprincipled Exclusions: The Struggle to Achieve Judicial and Legislative Equality for Transgender People. William and Mary Journal of Women and the Law 7: 37
findlay, barbara et. al. 1996. Finding Our Place: Transgendered Law Reform Project. High Risk Project Society: Vancouver, BC.
findlay, barbara. 1999. “An Introduction to Transgendered Women: An Equality Analysis.” Legal information booklet.
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Levi, Jennifer L. and Bennett H. Klein. 2006. Pursuing Protection for Transgender People through Disability Laws. in Transgender Rights. Eds. Paisley Curray, Richard M. Juang and Shannon Price Minter. University of Minnesota Press: Minneapolis, MN.
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National Association of Women and the Law. 2003. Transgender and Women’s Substantive Equality. NAWL: Ottawa, ON.
Razack, Sherene H. 2002. Introduction: When Place Becomes Race in Race, Space and the Law: Unmapping a White Settler Society. ed. Sherene H. Razack. Between the Lines: Toronto.
Robson, Ruthann. 2006. Reinscribing Normality? The Law and Politics of Transgender Marriage. in Transgender Rights. Eds. Paisley Curray, Richard M. Juang and Shannon Price Minter. University of Minnesota Press: Minneapolis, MN.
Rouse, Joseph. 1994. Power/Knowledge. in The Cambridge Companion to Foucault. ed. Gary Gutting. Cambridge University Press: Cambridge, UK.
Sharpe, Andrew. 2002. Transgender Jurisprudence: Dysphoric Bodies of Law. Cavendish Publishing: London, UK.
Sharpe, Andrew. 2006. “From Functionality to Aesthetics: The Architecture of Transgender Jurisprudence” in The Transgender Studies Reader. Eds. Susan Stryker and Stephen Whittle. Routledge: New York.
Sherwin, Susan. 1992. “Gender, Race, and Class in the Delivery of Health Care.” in No Longer Patient. Feminist Ethics and Health Care. Philadelphia Temple University Press: Philadelphia.
Squires, Judith. 2002. Public and Private. in An Introduction to Women’s Studies. Eds. Inderpal Grewal and Caren Kaplan. McGraw Hill: New York.
Whittle, Stephen. 2002. Respect and Equality: transsexual and transgender rights. Cavendish Publishing: London, UK.
Whittle, Stephen, Lewis Turner and Maryam Al-Alami. 2007. “Engendered Penalties: Transgender and Transsexual People’s Experiences of Inequality and Discrimination”. Retrieved March 9, 2007. link