Posted by: Manuel Russ & Marlene Moses on May 1, 2021

Journal Issue Date: May-June 2021

Journal Name: Vol. 57 No. 3

As the world is well aware, issues surrounding gender identity, and many legal ramifications that flow from that identity, are changing rapidly everywhere. In the last few years, a number of issues related to transgendered persons and their legal status have been highly publicized in Tennessee. The Middle District of Tennessee is currently in the process of litigating a claim by a transgendered citizen of Tennessee who wants to change their gender on their state-issued birth certificate, but was denied.1

As this article was being composed, a new bill from the General Assembly went to Gov. Lee’s desk for his signature that would require Tennessee athletes to compete under their birth genders rather than the gender that they identify with when they seek to compete.2 A recent addition to the criminal code makes it an offense for a transgendered person who has not yet transitioned to use the bathroom that corresponds with their gender identity rather than their birth sex.3 Another 2021 bill proposed in the General Assembly would, according to its summary, prohibit the approval of any textbook or supplemental material being used in Tennessee schools if those materials “promote, normalize, support, or address lesbian, gay, bi-sexual, or transgender issues or lifestyles.”4

These changes do not miss the world of family law. This article will explore several specific areas of domestic law that are impacted by changes in gender identity and discuss the possible outcomes for parties who have or will change their gender. Though much has changed in the last few years in relation to rights of the LGBTQ community and domestic law, specifically in the area of same-sex marriage and parentage, these precedents do not always fit neatly into the rights of transgendered persons and similar domestic law issues.

The primary discussion point will be how to represent parents in a divorce or custody situation where they have determined that they are transgendered, or when they discover that one of their children is transgendered. Clearly, this can be difficult for the parties as well as any children they may have in either scenario. However, a good way to smooth over conflict stemming from these occurrences is to let a medical professional guide the parties, particularly with how to explain to the children what is happening. Children must have transitioning — either of parents, siblings or even themselves — explained in a way and on a level that they can understand and digest. Enlisting a medical professional to assist with this can be critical and is certainly sound advice as legal counsel.

Also, as in most aspects of divorce, settlement is usually preferable and respect for the rights of each party is critical. A spouse or a child may not understand what led to a party seeking to transition and may, intentionally or unintentionally, retaliate against the person transitioning by undermining their decision, their legal status as a parent, or both. Often, the decision of a spouse to transition to another gender is an emotional one that can lead to common misconceptions about the further qualification of that party as a parent, at least in the eyes of the former spouse. This is the type of negativity that is not only damaging to the party’s future relationship with their child, it is baseless.

While Obergefell v. Hodges protected the rights of same-sex parties to marry and be parents, its application in all jurisdictions as to the rights of transgendered parents may not be uniform. Prior to the ruling in Obergefell, some courts throughout the country had invalidated marriages of transgendered persons as the resultant same-sex marriage was, under the law at the time, illegal.5 A parent transitioning is entitled to all of the same rights as the other spouse even after they have made this decision. After Obergefell, if the marriage was valid, no matter the sex of the parties at the time of the marriage, the marriage will be recognized legally even if the parties do not stay as the same gender throughout the duration of the marriage.

An area of dispute that has yet to be addressed in Tennessee but will almost certainly come up as time goes on is what to do when parents disagree about what medical treatment and procedures to permit a minor child to undergo if that child wants to transition their gender. A dispute of this nature is not hard to envision, particularly when viewed through a religious lens. How a court should handle it and how a domestic attorney should advise their client is harder to determine. If the situation arises, a family law attorney should focus their argument on what is in the best interests of the child and attempt to support that position with medical and expert proof. This advocacy could come on either side of the spectrum as it relates to the transition of a minor child, so it is important to educate yourself as an attorney about both sides of this issue.

As noted above, the confluence of transgendered persons and religion may well lead to additional disputes for the courts to consider. In 2020, the General Assembly passed a new statute that permitted charitable agencies that provided adoption services to refuse to provide these services to LGBTQ persons if doing so would violate their sincerely held religious beliefs. Obviously, this could affect any adoption efforts of parties who were transitioning or had already transitioned.

Many of these questions do not yet have clear answers, but some do. While transgendered clients and litigants may be less familiar and common than bisexual, lesbian, gay or queer clients are these days, the guidance from Obergefell as to same-sex marriage and rights of the parties should apply to transgendered parties. How this quickly developing area of law responds to the times, the legislature, and the courts is hard to predict. Family law attorneys will continue to see increased numbers of clients dealing with these issues either for themselves or their children, and keeping abreast of the developments will be very important to their practice. 

MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as president of the International Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.


NOTES

1. Gore v. Lee, 3:19-cv-00328, Middle
District of Tennessee
2. See House Bill 0003, Senate Bill 0228. Both bills filed in 2021 and were assigned Public Chapter Number 40 by the Secretary of State, https://publications.tnsosfiles.com/acts/112/pub/pc0040.pdf.
3. Tenn. Code Ann. § 39-13-511(e), defining indecent exposure as a person using “a rest-room, locker room, dressing room, or shower, designated for multi-person, single-sex use.”
4. See House Bill 0800, Senate Bill 1216.
5. Littleton v. Prange, 9 S.W. 3d 223, 231 (Tex. Ct. App. 1999).