Transgender Family Law 101: A resource guide for transgender spouses, partners, parents, and youth
This resource guide is designed to provide basic, California specific information regarding: your ability to enter into or remain in a legally recognized marriage or domestic partnership; maintain custody and or visitation with your children; participate in the adoption or foster care systems as a transgender individual; and, exercise your rights as a transgender person under 18.
This area of law is in a state of rapid development, so it is a good idea to contact a lawyer to answer any specific questions. TLC provides free legal services and can be contacted via the information above.
Section One: Marriage
Because California, at the time of publication, still fails to recognize marriage equality, transgender people and their spouses continue to have questions about whether their marriage is enforceable.
We estimate that thousands of transgender people in CA are married. Sometimes, they are in a marriage that they began prior to transitioning (for instance someone who is male married a non-transgender woman in 1985 and then transitioned in 1995 and the couple remained together). For the sake of simplicity, we refer to these marriages as pre-transition. Other people are in marriages that began after they transitioned (for instance someone who is female to male who married a non-transgender woman.) For the sake of simplicity, we refer to these marriages as post-transition.
Because current law in CA only recognizes marriages between one male and one female, being transgender can raise a lot of questions. Primarily what is the best way to legally protect my family? In the following paragraphs, we have attempted to lay out the basics on this issue. Invariably, your individual situation will require some additional thinking based on your specific facts, so don’t hesitate to contact us.
The key question in these situations is whether the marriage survives transition by one spouse or does the fact that the couple is now same-sex in some way void the marriage? At this point, neither the legislature nor any CA court has said anything on this issue. However, in general, CA law on marriage is well settled. A valid marriage can only be terminated through death or divorce. And it can only be voided if the party was ineligible to marry at the time the license was issued (for instance, one partner was still married to someone else). For this reason, it is our strong belief that pre-transition marriages remain valid after transition. A couple in one of these marriages may experience some difficulty in being accepted as a married couple, but the underlying marriage is very likely still valid.
In these marriages, the basic question is whether the transgender person who transitioned is now able to marry someone based on their post-transition gender. CA law and public policy strongly support a person’s ability to have their post-transition gender recognized as their legal gender. The one court case in CA that we have seen on this issue supported the idea that the husband in the case had legally transitioned from female to male and therefore entered into a valid marriage with a woman. Couples in these marriages can take some basic steps to protect themselves and their families, but should otherwise hold themselves out to be a married couple.
Post‐Transition Marriage Check‐list:
- Complete a memo of understanding- a simple contract between you and your spouse-to-be that makes clear that your spouse knew and understood your gender identity prior to the marriage. (Download Model Memorandum of Understanding form (PDF))
- Execute a will or a trust to clarify how your assets are to be distributed upon your death.
- Sign a medical power of attorney form to give your spouse the power to act on your behalf should you become unable to do so. (Download California Advanced Health Care Directive form (PDF))
Special Immigration Issues for Post‐Transition Marriages
Many people in bi-national relationships question whether their post-transition marriage is valid for immigration purposes for the non-citizen or resident spouse. Up until the last five years, it was fairly easy to answer this question by stating that so long as the state in which the marriage was performed or in which the couple would be 3 residing in the United States considered the marriage valid it would be valid for immigration purposes. However, more recently the federal government has begun to deny immigration applications for couples in these marriages regardless of state law. TLC along with other organizations and private attorneys are currently litigating this change in policy and believe that we will eventually win back the right for couples to have their marriages respected.
Section Two: Domestic Partnerships
Due to the lack of marriage equality in CA, a separate legal process called domestic partnership (DP) was created for same-sex couples. Since DP was created primarily as an alternative to people who could not get married, for the most part it reflects the gendered nature of marriage. For couples where both partners are under 62, both people have to be of the same sex. Similar to the way in which the opposite sex requirement for marriage creates uncertainty for transgender people, so too does the same-sex requirement for DP.
Despite the advancements in DP law in CA (outlined below), they are not recognized in the same way that a marriage is. For instance, the federal government will not recognize a DP (for purposes of social security, immigration, etc). Other states are also unlikely to recognize the DP if the couple moves to a new state.
In the following paragraphs, we have attempted to lay out the basics on this issue. Invariably, your individual situation will require some additional thinking based on your specific facts, so don’t hesitate to contact us.
Pre‐Transition Domestic Partnerships
Just as a pre-transition marriage should remain valid, we believe a pre-transition DP will also remain valid. However, now that the couple is opposite sex, they may want to consider getting married. If so, the process for doing so is very simple. The current law allows for a couple to move easily from a DP to a marriage without first ending the DP. So, the couple can simply go get married like any other non-married couple. However, someone who is a DP with one person can not enter into a marriage with another person without first ending the DP.
Post‐Transition Domestic Partners
Just like post-transition marriages, we strongly believe that post-transition DPs are valid because both partners are now same sex. Additionally, DPs were created to offer alternatives to people who are unable to get married (if both partners are under 62) so our expectation is that courts will broadly construe who can legitimately enter into DPs.
Changes in DP law
It is important to recognize that CA significantly changed DP law last year. Making DPs closer to marriage, the state changed DPs to include many more rights and responsibilities. The following are two substantial changes that may concern you:
- Ending a DP is much more like divorce than it used to be. The former process for officially ending a DP was to file a declaration of termination with the secretary of state. DPs now must petition the court for termination like a divorce. The divorce may include, if applicable, responsibility to the other partner for spousal support and/or child support.
- Another significant change in the law is the recognition of parentage to the non- biological parent when a child is born to DPs. See the custody section below for more information on this.
Other changes were made to the DP law. It is important to look closely at the new rights and responsibilities before deciding if a DP is right for you.
Download Durable Power of Attorney for Finances (PDF)
Section Three: Child Custody for Transgender Parents
Transgender parents who have or establish a legally recognized relationship to their child should not have that child taken away or their custody or visitation lessened solely as a result of their gender identity. However, due to a lack of experience with transgender parents on the part of judges, transgender parents may face difficulty solidifying their rights.
Or, it is just as often the case that some transgender parents (especially those is a pre- transition marriage) may give up too much of their parental rights due to feelings of guilt or shame. While minimizing or giving up your parental rights altogether may feel like the best thing to do at the time, many people regret doing so months or years after the court proceeding. And, unfortunately, once you have given up parental rights it is 5 incredibly difficult to get them back. If you are negotiating custody and visitation be sure that you have an advocate who understands your identity and can make sure you and your child’s best interest are being served.
Becoming Legal Parents
Transgender people can become parents in a number of different ways: biologically having a child with another person; being the “presumed” parent due to being married or being in a DP; adopting a spouses or DP’s child through a step-parent adoption; and/or adopting a child that has no biological ties to either spouse or DP (or doing so as a single person).
If you have any questions about being a legally recognized parent, we recommend that you take steps to be sure that you have firm legal recognition of your parental rights such as calling TLC or a private lawyer who understands transgender family law issues. The following paragraphs should give you some ideas about your rights, in general, though.
If you are a biological parent, you may face challenges to your legal relationship with your child from the child’s other biological parent. Under CA law, your gender identity should have no impact on your ability to be a good parent, including having primary physical custody of your children. However, because the child’s other parent may try to use your gender identity against you, it is especially important to make sure your lawyer understands your rights and can enlighten the court regarding your rights.
“Presumed parent” is a legal term used for a person whose spouse or DP has a child while the two people are married or in a DP. The spouse or DP does not have a biological connection to the child, but the law presumes them to be the child’s other parent simply because they are married or in a DP at the time of the child’s birth. The problem with this kind of parentage is that it potentially relies on the validity of the marriage or DP in order for the parent to have their parental rights respected. While you can likely establish parental rights even if the marriage or DP is held to be void, it may involve a costly legal battle. However, completing the steps listed above under post-transition marriage will help you in any legal battle that does arise.
“Step Parent” Adoption
As written above, if you are in a DP your partnership rights will not necessarily be respected outside of CA. For that reason, it is important to consider going through a step parent adoption. This is a fairly inexpensive and minimally invasive way to get a court decree that you have a legal relationship with your child. This way, if you move to a new state, you’ll have significantly more ground to argue that your parental rights need to continue to be respected.
If you wish to adopt as a single adult or you and your spouse or DP wish to adopt a child to whom neither of you have biological ties, you should not be prohibited from doing so simply because you are transgender. Also, your parental rights should be respected if you and your spouse or DP separate because you are a legally recognized adoptive parent.
Section Four: Foster Care System
Transgender people participate in the Foster Care system in a number of different ways: as youth in the system, as providers, and as people working in the system. All three categories of people are protected from gender identity discrimination under CA law. No one can be denied services, rejected as a foster care family, or fired from the system simply for being transgender.
For youth in the system, this also means that you can’t be denied the right to transition simply because you are in foster care. If you are placed with a family and the family is unsupportive of your transition, you can request a new placement. If you’re in a facility, the staff at the facility should be required to work with you through your transition and make sure that your identity is respected.
Section Five: Transgender Youth
More youth are coming out as transgender, gender variant, or questioning than ever before. And they are doing so at younger ages than before. CA has a number of laws that protect transgender youth (the foster care law mentioned above, for example), but still treats youth as not being able to make some decisions without the approval of their parent(s) or guardian(s).
Below are some key areas important to many transgender youth. As always, this information is just the barest outline of the relevant needs and the law. Specific questions can be directed to TLC.
In order to change your name officially on your drivers license or state ID, you will need permission from your parent(s) or guardian(s), unless you are an emancipate minor. With your parent(s) or guardian(s) permission, though, you can get a court ordered name change as well as get a drivers license or state ID with the correct name and/or gender marker (as long as you otherwise qualify).
Harassment at School
Transgender students are protected against gender identity based discrimination and harassment in public school settings. Clearly this means that a student can’t be expelled or disciplined for being transgender. Some school districts have also interpreted the law to mean that transgender youth must be referred to by their post-transition name and/or gender, must have access to correct restroom, and must be included in any gender segregated activity according to their post-transition gender.
Emancipation / Guardianship
If you are a transgender youth who is facing abuse at home or if you are kicked out of your home for being transgender, you can consider creating a different kind of family for yourself. Someone else (a family friend or other relative) can ask the court to make them your guardian. Or, if you are old enough and can show a judge that you can support yourself, emancipation may be an option. Emancipation means that even though you are not 18, you are considered to be an adult and can make choices for yourself. Both of these options are serious and have many consequences. You should not go into either one without first talking to a lawyer and making sure that the option is right for you.
Special Custody Issues for Parents of Transgender Youth
As more transgender youth come out an earlier age, sometimes parents disagree about whether to support their children. If the parents are not married nor in a DP, this disagreement can lead to a renewed custody challenge. The parent who does not want their child to transition (or even talk openly about questioning their gender) may possibly try to get the court to limit the custody or visitation rights of the parent who is 8 supportive. Again, under CA law, this tactic should not work. However, due to the lack of information or experience on these issues, some judges may make bad decisions. If you are in this situation and want to support your child, please contact TLC or another knowledgeable legal source prior to taking any significant steps.
Download Information on Foster Care Anti‐Discrimination Law (PDF)