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Focus: Parsing the family law effects of transgender recognition

|Written By Judy van Rhijn

Ontario has made itself a leader in the recognition of transgender rights with the passing of Toby’s Act in June 2012.

The act amends the Human Rights Code to prohibit discrimination and harassment because of gender identity or expression. Then came regulatory changes in October that allow people who live as the opposite sex to change their gender on their birth certificates without first undergoing sex-change surgery.

The changes flowed from a significant decision from the Human Rights Tribunal of Ontario in XY v. Ontario (Government and Consumer Services) that found legislation requiring people to have transsexual surgery before they can change the sex designation on their birth registration to be discriminatory. The decision upheld the notion of recognizing gender based on lived identity rather than as something dependent on a surgical procedure.

The family court is another venue where transgender rights have been slowly gaining recognition over time. These days, there’s no gender distinction in marriage recognition, property distribution, parental recognition or support obligations, although discrimination in the workplace can be a factor in determining the need for spousal support.

The area where there’s still a severe disadvantage is custody and access.

In Canada, one in four transgenders are parents. Lisa Sharp, a sole practitioner of family law in Ottawa, believes there are a huge number of families affected by this issue. “There are generations of people who would live as a straight person and marry and have children because of the stigma,” she says. “They are now in their 40s and 50s and may have been married a long time. These days, they will come out. We as practitioners have to be aware that this affects many of our clients and their children.”

Joanna Radbord of Martha McCarthy & Co. says there’s still significant transphobia in our society and that in the family law arena, it shows most prominently at the time of transition.

“People care more than anything else about their children. There are many areas where they experience discrimination, but the most painful is in the area of children. The former spouse is upset and the change is not well received. They may terminate access or reduce its extent. They may place limits on how the parent dresses during contact. My view is that if the children are supposed to have a relationship with you and you identify as a woman, it is necessary and respectful of the children to recognize who you are. You can’t be asked to surrender all of yourself.”

Radbord represented the   lesbian father in the 2001 case of Forrester v. Saliba. In that matter, there was joint custody and an equal time arrangement. At that point, the father’s gender reassignment was still being treated as a “material change of circumstances” in the agreement. “It did take a trial before we had a positive result,” Radbord recalls.

“In the case conference setting, there were some discouraging words said by judges, but when they heard the evidence in the hearing, we ended up with an excellent result.

“In that case, the expert evidence found there was no adverse impact on the child and that it was in fact in the child’s best interests to have the arrangement continue.” The court held that transgender identity by itself wouldn’t be a negative factor in a custody situation. In subsequent cases, the courts have accepted that the transition doesn’t constitute a material change.

However, very few cases go to trial and in the bargaining process, transgender parents are under significant pressure. “They are afraid to take it all the way to trial or they can’t afford to,” says Radbord. “So they are often settling for less than they would receive if it was just a consideration of the child’s best interests. They are pressured to accept limitations on dress to obtain time spent with children or to forego a relationship with the children altogether.”

Radbord is a member of the transgender parenting working group organized by the LGBTQ Parenting Network. She describes some of the first-hand accounts she has heard as “tragic” and “horrific.” The working group is launching a report on Nov. 28 on transgender parents and their struggles, strategies, and strengths.

Sharp raises the issue of children caught in family law matters who are dealing with transgender issues themselves. One of her clients had a young child who was transgendered. “One parent did not accept it. The other did accept it and tried to arrange counselling.”

Sharp recalls that the opposing lawyer made some derogatory remarks and represented the child as being gay.

“This represents a gap of knowledge. There is a difference between being transgendered and gay. There is room for education of lawyers and judges as to what it is and what it isn’t and that it does not in itself affect someone’s ability as a parent.”

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