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

      "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 physiologi-
      cal supervision 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

     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 

          Legal Recognition of Transsexualism

         Tom is lucky that he was born, and resides, in Michi-
     gan.  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

     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 

     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 "hesitate 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 

     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."


     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."


     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 

     5.  Petrini, "In Search of a Vagina," (reprinted in Sexuality 
in America, Brown and Clary, eds., 1981) [hereinafter cited as 

     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 

     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 

     19. Petrini, supra n.5, at 143.

     20. Review of Genital Surgical Reconstruction, supra n.7, at 

     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 

     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, 

     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 
     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 

     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, 

     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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