Michigan Law Review Volume 117 Issue 8 2019 Transparenthood Sonia K. Katyal University of California, Berkeley Ilona M. Turner Transgender Law Center Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Civil Rights and Discrimination Commons, Family Law Commons, and the Law and Gender Commons Recommended Citation Sonia K. Katyal & Ilona M. Turner, Transparenthood, 117 MICH. L. REV. 1593 (2019). Available at: https://repository.law.umich.edu/mlr/vol117/iss8/3 https://doi.org/10.36644/mlr.117.8.transparenthood This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. TRANSPARENTHOOD Sonia K. Katyal* & Ilona M. Turner** Despite the growing recognition of transgender rights in both law and cul- ture, 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 re- garding 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 rec- ognized 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 sup- posed 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 sys- tem. 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. TABLE OF CONTENTS INTRODUCTION............................................................................................1594 * Haas Distinguished Chair and Chancellor’s Professor of Law, University of Califor- nia, Berkeley. ** Mediator and attorney; former Legal Director, Transgender Law Center. We are particularly indebted to two great trailblazers of transgender equality in family law, Jennifer Levi and Shannon Minter, and also to Kathryn Abrams, KT Albiston, Carlos Ball, Dick Buxbaum, Erwin Chemerinsky, Alexander Chen, Mel Chen, Paisley Currah, Seth Davis, Cathe- rine Fisk, Jackie Hemann, Joan Hollinger, Clare Huntington, Courtney Joslin, Neal Katyal, Christopher Kutz, Joy Milligan, Doug NeJaime, Nancy Polikoff, Cliff Rosky, Bertrall Ross, Simone Ross, Andrea Roth, Lis Semel, Steven Davidoff Solomon, Eric Stanley, Steve Sugarman, Jennifer Urban, Leti Volpp, Michael Wald, and John Yoo for helpful conversations and com- mentary. We are also indebted to Leslie Booher, Justin O’Neill, Aniket Kesari, and Renata Bar- reto for excellent research assistance, and to the editors of the Michigan Law Review for their hard work. The authors wish to thank all our trans chosen family, friends, colleagues, clients, students, and mentors who have shared their journeys with us, generously corrected our mis- takes, and showed us how to be better allies, advocates, and humans. Finally, we dedicate this Article to the memory of Suzanne Daly and to the Pacific Center here in Berkeley. 1593 1594 Michigan Law Review [Vol. 117:1593 I. TRANSGENDER FAMILY FORMATION AND RECOGNITION ........1601 A. Transgender Family Formation............................................1603 B. Challenges to Parental Recognition Before Obergefell.......1607 II. TRANSGENDER PARENTS AND CONTESTED CHILD CUSTODY CASES: A HISTORICAL OVERVIEW ...............................................1612 A. Overview of Child Custody Decisionmaking Standards.....1613 B. Legal Relevance of Sexual Orientation and Gender Identity in Custody Determinations.....................................1617 C. Transgender Parenting and Judicial Bias: The Daly Case.........................................................................1621 III. THE STATE OF TRANSPARENTHOOD: THREE BIASES..................1626 A. Methodology and Limitations...............................................1628 B. Three Persistent Biases...........................................................1630 1. Concerns Regarding Transition ...................................1632 2. Concerns About Volition ..............................................1637 3. Concerns About Contagion ..........................................1644 IV. A NORMATIVE MODEL..................................................................1648 A. Constitutional Considerations ..............................................1649 B. Policy Interests ........................................................................1654 C. Limitations of the Nexus Test................................................1657 D. Beyond the Nexus Test: Bar Any Consideration of a Parent’s Status or Related Factors ........................................1661 CONCLUSION ................................................................................................1665 INTRODUCTION In an opening scene from the Emmy Award–winning show Transparent, Jeffrey Tambor plays Maura, a transgender woman who is in the early stages of explaining to her three children that she plans to transition.1 At one point, one of the daughters, Sarah, says to Maura, with a hint of disbelief, “Can you just help me out here? Are you saying you’re gonna start dressing up like a lady all the time?”2 Maura laughs, and then says to her, “No.”3 She continues, 1. Amazon Studios, Transparent: The Letting Go,AMAZON (Sept. 26, 2014), https://www.amazon.com/The-Letting-Go/dp/B00I3MOT0Y/ [https://perma.cc/J8DU-ALT9]. 2. Id. at 2:09–2:17. 3. Id. at 2:17. June 2019] Transparenthood 1595 “my whole life I’ve been dressing up . like a man.”4 She pulls Sarah’s hand to her chest and then says, gently, “This is me.”5 Although Transparent faced a number of cogent critiques from both in- side and outside of the transgender community,6 it was the first mainstream television drama to focus on a transgender woman as the central character, telling her story in a way that captured the complexity following her transi- tion. Transparent made its debut around the same period that several transgender women—Caitlyn Jenner, Laverne Cox, and Janet Mock—also received widespread public attention, bringing one mainstream magazine to proclaim 2014 the “Transgender Tipping Point.”7 But amidst the greater strides toward inclusion on television and social media, it is worth remembering some other, more sobering realities. The year 2017 was the deadliest year for transgender people in modern history, and the statistics for 2018 are not much better.8 In 2017 the U.S. Department of Justice reversed the previous administration’s position on transgender in- clusion in public schools, thereby allowing schools to discriminate on the ba- sis of gender identity.9 The current commander in chief ordered a ban on service by transgender people in the armed forces, which was quickly en- 4. Id. at 2:21–2:25. 5. Id. at 2:26–2:32. 6. See, e.g., Steven Funk & Jaydi Funk, Transgender Dispossession in Transparent: Com- ing Out as a Euphemism for Honesty, 20 SEXUALITY & CULTURE 879 (2016); Marcy Cook, Why Transparent Has Lost the Trust of the Trans Community,MARY SUE (Feb. 4, 2015, 8:00 PM), https://www.themarysue.com/transparent-trust/ [https://perma.cc/U62U-QKG9]; Cael Kee- gan, Op-ed: How Transparent Tried and Failed to Represent Trans Men,ADVOCATE (Oct. 22, 2014, 10:00 AM), https://www.advocate.com/commentary/2014/10/22/op-ed-how- transparent-tried-and-failed-represent-trans-men [https://perma.cc/ALL2-KSTL]. In 2017, Tambor was fired from the show due to allegations of sexual harassment. Yohana Desta, Transparent Plots a Way Forward After Jeffrey Tambor’s Messy Firing,VANITY FAIR (June 12, 2018, 9:16 AM), https://www.vanityfair.com/hollywood/2018/06/transparent-final-season- ending-jeffrey-tambor [https://perma.cc/JL39-NN28]. 7. See TIME, June 9, 2014 (titling the issue “The Transgender Tipping Point”); Saman- tha Allen, Whatever Happened to the Transgender Tipping Point?,DAILY BEAST (Mar. 31, 2017, 1:02 AM), https://www.thedailybeast.com/whatever-happened-to-the-transgender-tipping- point? [https://perma.cc/53SX-RSAN] (describing the cover of Time’s June 9, 2014 issue as a declaration that 2014 was the “Transgender Tipping Point”). 8. See Sarah McBride, HRC & Trans People of Color Coalition Release Report on Vio- lence Against the Transgender Community,HUM. RTS. CAMPAIGN (Nov. 17, 2017), https://www.hrc.org/blog/hrc-trans-people-of-color-coalition-release-report-on-violence- against-the [https://perma.cc/N6BK-3XBL]; see also Lauren Lee, Transgender Community Fac- es Its Deadliest Year,