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When Parentage Turns on Anatomical Sex: An Illinois Court Denies a Female-to-Male Transsexual's Claim of Fatherhood

Tuesday, Mar. 08, 2005

Can a pre-operative female-to-male transsexual be a "father"? That was the question in In re Marriage of Simmons, a recent appellate decision in Illinois.

The Simmons case raises interesting questions about transsexual marriage and legal parenthood. It also reflects the continuing difficulties courts are having in attempting to reconcile traditional laws with nontraditional situations.

From "Bessie" to "Sterling": Born Female, But Certified Male

From a young age, Bessie Lewis experienced discomfort with having a girl's body. In psychiatric terms, he suffered from "gender dysphoric disorder" - a condition that occurs when a person's anatomical sex and gender identity are mismatched. (Throughout this column, I will follow the appeals court in referring to Sterling as "he" "out of respect," as the Illinois court did, - rather than to beg the questions this column will discuss.)

To ease his dysphoria, Bessie began taking male hormones, which gave him the outward appearance of a man; he had facial hair, male pattern baldness, a deep voice, and bigger muscles. In this transitional state, he married a woman, Jennifer Simmons.

Several years later, the couple decided to have a child with the help of artificial insemination. Before proceeding with the insemination, they entered into a written agreement with each other. It specified that "the husband" agreed that from the moment of conception, any children produced from the insemination would be his legitimate children; that he waived any right to disclaim parental responsibility; and that the children would have the same rights as his natural children. In short, Sterling agreed to take on all the obligations and rights of fatherhood, and Jennifer agreed to his doing so.

Shortly before the child was born, Lewis underwent surgery to remove his internal female organs; however, he retained his external female genitalia. A hysterectomy was performed to remove his uterus, and an oophorectomy was performed to remove his ovaries.

When Jennifer Simmons gave birth to a child, Sterling was listed on the birth certificate as the father.

Several years later, pursuant to a procedure set out in Illinois law, Lewis obtained a new birth certificate for himself. Once he presented an affidavit from his doctor that he had undergone "surgical operations," his sex was officially changed from "female" to "male." Lewis also officially changed his name to Sterling Robert Simmons.

The Issue in the Case: Was the Simmons' an Invalid Same-Sex Marriage?

Over the years, the relationship between Sterling and Jennifer deteriorated. When their child was almost seven years old, Sterling filed for divorce under Illinois law and requested sole custody of their child. Jennifer opposed the petition.

In particular, Jennifer argued that their marriage was invalid as a same-sex marriage. (Like a substantial majority of states, Illinois law expressly prohibits marriage between two individuals of the same sex.) And because their marriage was invalid, she contended, Sterling could not be the child's legal father. Moreover, since he had never legally adopted the child, and had no biological relationship to the child, he had no basis for seeking custody.

The trial court agreed with Jennifer. It decreed the marriage void ab initio (that is, invalid from the outset), because, in the court's view, Sterling was still female - so the marriage had been an invalid same-sex marriage throughout its tenure.

In addition, it awarded sole custody to Jennifer on the grounds that Sterling lacked parental rights and had no standing to seek custody. The court did, however, grant Sterling visitation rights.

Is Sterling Still Female? The Appeals Court Declines to Reverse the Trial Court

Under Illinois law, the question for appeals court was whether the trial court's determination that Sterling was still female was against the "manifest weight" of the evidence. In other words, unless the trial court had made a clear error in assessing the evidence, the appeals court, under the law, had to let the trial court's decision stand.

One might think that Sterling's new birth certificate, declaring him legally "male," would be the end of the matter. Even if Sterling was legally female when he married, the new birth certificate deemed him a male - and the new birth certificate was issued by the State of Illinois before the he sought dissolution of the marriage and before the question of custody arose.

But what about the trial court's claim that the marriage was void when it was created? The answer is that Illinois marriage law - like that of many states - provides that a defective marriage, even if initially void, can become valid when the "impediment" to lawful marriage is removed and the parties subsequently cohabit.

Here, the impediment was Sterling's femaleness. If one believes his new birth certificate, that impediment was removed. And he and Jennifer were living together after the new birth certificate was issued - fulfilling the "cohabitation" requirement. They were also living together when she gave birth.

Arguing About Which Kind of Surgery Is Truly Gender Reassignment

But can we believe the new birth certificate? At trial, expert witnesses divided on whether the certificate according with the facts.

Illinois, like 20 or so other states, permits birth certificates to be reissued following gender reassignment. In this respect, Illinois is more progressive than many other states. As I discussed in a prior column, some states simply do not permit birth sex to be legally changed at any point.

By Illinois statute, the Registrar of Vital Records can create a new birth certificate upon receipt of "an affidavit by a physician that he has performed an operation on a person, and that by reason of the operation the sex designation on such person's birth record should be changed."

Sterling's doctor did provide such an affidavit. But the operations he had performed were not those typically thought to effectuate a sex change.

Could the operations still accurately be seen as changing Sterling's gender? The plaintiff's expert thought so. He testified that Sterling was a "healthy male" - albeit one who had not had complete sexual reassignment surgery yet.

But defense experts thought not. Sterling, they pointed out had not had a vaginectomy and breast reduction to remove his external female genitalia and secondary sex characteristics. Nor had he had a metoidioplasty (a procedure that enables the clitoris to be transformed into what appears to be a small penis), scrotoplasty, urethroplasty, or phalloplasty, which would have created external male genitalia. Thus, in their eyes, he was still female.

The trial court sided with the defense. And the appellate court - which, again, was only reviewing the trial court's findings for clear error -- upheld the trial court's ruling.

The result that was that Sterling could not be deemed the child's father simply because he was married to the mother when the child was born - which would usually be the rule. Because Sterling was deemed always female, the marriage was always void, in the court's eyes - so Sterling could not claim any parental rights by virtue of the marriage.

Why Sterling's Claim Under the Illinois Parentage Act Also Failed

But was there another way Sterling might claim parental rights? He hoped sp - and tried to proceed under the Illinois Parentage Act (IPA), and the agreement he and Jennifer had entered into, in part in an attempt to comply with the IPA.

The IPA - which is modeled on a uniform act governing the establishment of parent-child relationships - provides rules governing legal parenthood in cases of artificial insemination. It makes agreements between married persons contemplating artificial insemination with sperm from a donor - agreements, that is, like the one Jennifer and Sterling entered into - legally effective.

The problem, though, the Court held, was that Jennifer and Sterling were never legally married, and so the IPA could not apply to them in the usual way. The fact that the agreement referred to Sterling as "the husband," the court held, did not mean he actually was one. (This ruling, then, to some extent paralleled the court's ruling that just because the new birth certificate called Sterling "male," that did not mean he actually was male.)

Sterling pointed out, however, that another provision of the IPA grants a presumption of parenthood when a child is born via artificial insemination to two married parents even if the marriage is subsequently held invalid. But the court pointed out, in turn, that under the law, the presumptive father must be a "man" - which, it repeated, Sterling was not.

Finally, Sterling argued that he should be granted parental rights under a common law theory of de facto parenthood: The child called him "Daddy," and believed him to be his natural father. But the court held that the IPA superseded any prior common law theories of parental rights. The court also held that for the IPA to cover "evolving social structures" and "nontraditional relationships," the legislature would have to amend it; the court wouldn't interpret the IPA to apply to these relationships unless the legislature said as much.

The Harsh and Unintended Consequences of the Appeals Court's Approach

Both the trial and appellate court rule seemed to embrace (or verge on embracing) a bright-line rule on sexual reassignment: Only complete, surgical reassignment effects a legal change of gender.

Like all bright-line rules, this one has the advantage of simplicity in application. But like all bright-line rules, it runs the risk of failing to encompass complex realities, and therefore leading to injustice.

Treating a person as one sex, when he has been living as the opposite, is bound to impose harsh results sometimes. Here, Sterling was living as a "husband" and raising a child as a "father," co-parenting the child he treated as his own from birth. But the court took away both statuses from him.

Since Sterling is separated from Jennifer, he may not care as much about losing the retrospective status of "husband," but he certainly cares - as his suit has proven - about losing the status of "father" - and therefore, that of "parent," for he cannot be deemed child's mother, either, even though the court sees him as female.

Ironically, Sterling does have one right left - but it may not be of value to him, as he seems to identifying as a heterosexual man. Presumably, since the court says he is female, Sterling could legally marry another man if he so chose. The two could, apparently, go down to the clerk's office - both, perhaps, with male pattern baldness, facial hair, and bulky muscles - and enter into a valid, opposite-sex union.

Suppose that occurred. And suppose, too, that Sterling then undergoes every operation necessary for the full surgical reassignment. Would his marriage be suddenly invalidated by virtue of the surgical procedures, as it would now be a same-sex marriage?

These ironies are not unique to transsexual law. The ban on same-sex marriage, which Illinois shares with at least 39 other states, and the refusal by most of those states to recognize same-sex marriages from elsewhere produces the potential for legalized bigamy. An Illinois court would no doubt refuse to recognize a Massachusetts same-sex marriage--and by doing so, it would be authorizing either partner to marry a person of the opposite sex.

The law's recognition that the right to marry is fundamental means that if civil marriage is generally available, it would be hard for a state to constitutionally designate any class of persons who could not marry at all.

Thus, in both situations I've described, the state would end up refusing recognition to a marriage it abhors, only to countenance one it probably abhors equally, if not more.

The Problem with Using Medical Expertise to Define Gender

Even beyond those ironies, there is an offensiveness - and an inhumaneness -- to the court's ruling.

Suppose Sterling had known -- during his marriage to Jennifer, and before she delivered the child - that the court would ultimately reach this ruling. He would then be put to an appalling choice: Acquire a penis, urethra, and scrotum, or else you cannot legally be deemed a "parent."

(Granted, Sterling had a third option: He could always have tried to adopt the child after it was born. But he might have wanted a more certain guarantee of parenthood - one about which Jennifer could not control by withholding consent, and one a judge would not later have discretion to approve or disapprove.)

What relevance do sex characteristics possibly have to parenthood? And how dare we ask persons to alter their bodies so profoundly in order to establish their status as parents? Worse, Illinois law picks out a subset of all persons - based on a psychiatric condition - to inflict this brutal choice upon. Illinois law has a dramatic, disparate impact on those who happened to suffer from this condition.

It may be time, now that this ruling has been issued, for that discrepancy to be separately challenged - as an infringement of privacy and due process. What is the "rational basis" for asking some persons to have irrelevant surgery so that they may become parents? In my view, there is none.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University, currently visiting at the University of North Carolina School of Law. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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