TRANSSEXUAL FATHERHOOD?: Joanna Grossman

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. ...

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. ...

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. ...

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.

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posted by Eve at 6:12 PM | link

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