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Today is Wednesday, November 28, 2007


Transsexual Dad Wins Custody

Florida trial court validates marriage in sweeping legal, medical review

[TAMPA, FL] - Ruling on questions that had no precedent under Florida law, a Pasco County Circuit Court judge, in a case involving a child custody claimant who is transsexual, issued an extraordinary 809-page opinion probably unprecedented in its detail, thoroughness, and wide-ranging consideration of scientific issues.

Judge Gerard J. O'Brien on February 21 found that Michael Kantaras, born genetically female, is a man for purposes of Florida marriage law; is the legal father of the two children born to his wife Linda; and should be awarded primary custody of the children.

Michael Kantaras found legally male,
awarded custody of children.
In so ruling, O'Brien brought to an end what is likely just the first stage of one of the most highly publicized divorce and custody disputes in American history, which included a lengthy trial broadcast nationally by Court-TV a year ago. Given the controversial nature of the decision and the passionately committed legal forces arrayed on both sides of the case, an appeal seems inevitable. Indeed, the judge seemed to anticipate this in the comprehensive scope of his opinion.

Among other firsts, this case appears to be the first transsexual marriage case in the U.S. in which a court has heard extensive live testimony from well-qualified medical experts. Recent appellate decisions in Kansas and Texas were decided after pre-trial defense motions that precluded the courts from hearing medical experts' testimony and cross-examination. O'Brien appears to have been strongly influenced by the expert testimony he heard.

The bulk of the written opinion??roughly the first 500 pages??is made up of a detailed review of the evidence, including lengthy quotations from trial testimony. Another 200 pages are devoted to a lengthy review and comparative analysis of court decisions on transsexualism from several different American states, Great Britain, New Zealand, and Australia. O'Brien also reviews law review and medical journal articles.

As a result, the opinion provides a veritable treatise on the subject of transsexuality, its treatment by the medical community, and the divergent views about how it should be treated by the law. While Florida trial court decisions are not normally published, this opinion will likely become widely available, at least on-line. The websites for both Court TV (courttv.com) and the National Center for Lesbian Rights (nclrights.org) provide links.

The underlying facts of the Kantaras case are straightforward. Margo Kantaras, a Florida resident, sought psychological, hormonal, and surgical treatment for gender identity disorder in Texas, and obtained a change of name there and a corrected birth certificate in Ohio. Renamed Michael, Kantaras returned to Florida and became acquainted with Linda Forsythe, who was living with a boyfriend. After Linda became pregnant, she broke up with her boyfriend and began dating Michael. Shortly after Linda's son was born, she married Michael and he adopted the child. Michael had disclosed his medical history to Linda while they were dating and she accepted him as a man. A few years later, Michael's brother donated sperm for Linda to be inseminated, and she had a second child, for whom Michael was recorded as the father on the birth certificate. (Under the law in Florida and elsewhere in the U.S., a husband is the presumptive father of a child borne by his wife.)

Michael and Linda raised their two children together for about nine years. However, more than 100 pages of the court's opinion are taken up with highly contradictory testimony about the nature of the couple's sexual relationships. Though Michael did not undergo phalloplasty, or the construction of an artificial penis, he testified that hormonal treatments sufficiently enlarged his clitoris so that it substituted for a penis in sex with Linda. In contrast, Linda testified that she never had sexual intercourse with Michael during their marriage, but O'Brien rejected the credibility of her claims. As their marriage was breaking up, however, Michael became emotionally involved with another woman.

Michael filed for divorce in 1998. In response, Linda argued that their marriage was invalid from the start since Michael was a woman. Consequently, Linda argued, Michael's adoption of her son was invalid, he had no legal parental relationship to their daughter, and was not entitled to any legal rights with respect to either child. Since Florida law forbids same-sex marriage, most of the trial centered on the challenge Linda posed about the marriage's validity, the resolution of which depended on the court's view of whether Michael was a man or a woman.

The legal landscape did not look promising for Michael. Many American states have authorized changes on birth certificates and name changes for transsexuals who undergo treatment to conform their anatomy to their sexual identity. But the handful of American courts that have decided transsexual marriage cases have been sharply divided, with several recent decidedly negative appellate precedents. Courts in both Kansas and Texas concluded that genetic sex at birth is determinative for this purpose and cannot be altered.

An early British case, Corbett v. Corbett, in which the court took a hard-line traditionalist approach, was an important precedent cited in the Kansas and Texas decisions. The British court asserted that contemporary medical views were essentially irrelevant and that the question is entirely a legal, not a factual, issue. But O'Brien strongly embraced the opposite viewpoint that has been developed in recent cases in New Zealand and Australia and in law review articles.

"As a post operative transsexual, Michael Kantaras is, by virtue of all his medical treatment, possessed of the capacity to function sexually as a heterosexual male," O'Brien wrote. "There should be no legal barrier, cognizable social taboo, or reason grounded in Florida public policy to prevent Michael's qualification, at least for purposes of marriage, to be of the male sex and as indicated by the medical experts in this case, Michael Kantaras was certified to be a `male.' From a medical standpoint, Michael is of the male gender and has been his entire life."

With this last comment, O'Brien accepted the contention that one's true sexual identity is not a function of genes and birth-anatomy, but is really seated in the brain. The medical treatment is undertaken to conform one's physical reality to one's sexual identity, so as far as this judge is concerned, Michael Kantaras was never female.

On the issue of Florida's marriage law, O'Brien rejected the contention?apparently accepted by the courts in Texas and Kansas?that parties to a marriage must possess the capability to procreate.

"Genetic heterosexual women who undergo hysterectomy and oopheriectomy or are post-menopausal are still eligible to marry," O'Brien wrote. "Men who suffer erectile dysfunction or have a low sperm count, or suffer prostate problems (cancer) are eligible to marry. And both, as they exist, can be responsible parents with children they already have or they may adopt, or create through artificial insemination. There is no justification in the law to hold a transsexual to a higher standard than all heterosexuals in approaching marriage. Gender is only relevant, as male or female, at the time for a license to marry, not at birth? The statement in Corbett that sex is fixed at birth is not the controlling law of Florida."

O'Brien also found it important that were Michael declared a woman and the marriage and adoption ruled invalid, the children would be left without a father and be illegitimate. Also, since Michael would under that circumstance have no obligation to support the children, it was also significant that Linda's earning capacity and assets were clearly not up to the task. O'Brien clearly was responding to the fact that the lives of several people??most notably the children??had been premised on a certain set of facts. Linda should not now be allowed to deny Michael's status as the man to whom she is married, when she previously accepted his status and recognized him as the legal father of her children.

On the question of child custody, O'Brien relied on the recommendation of the court-appointed expert who found after studying the family that Michael came out ahead of Linda on nine of ten relevant considerations identified in Florida statute concerning contested custody disputes. Michael was found to have superior parenting skills and mental stability, while the court noted expert testimony from a series of court-appointed counselors suggesting that Linda suffered from a borderline personality disorder.

A trial court ruling does not create a precedent binding on any other court, but the extraordinary depth of this written opinion is bound to carry significant weight in other controversies, especially given the devastating demolition job that Judge O'Brien did on the contrary court opinions from Kansas and Texas. It also seems likely, however, that the forces opposed to transsexual parenting and marriage rights will make strenuous efforts to appeal this decision, so the story is far from over, unless Linda decides to accept this ruling and abandon her fight for custody.

Much of the credit for this trial-level victory must be attributed to the extraordinary lawyering of Michael's attorneys, Colin D. Vause of Clearwater, Karen M. Doering of Equality Florida Legal Advocacy Project, Inc. in Tampa, and Shannon Minter, a staff attorney from the National Center for Lesbian Rights in San Francisco. The wide-ranging legal scholarship exhibited in O'Brien's opinion is likely based on the first rate legal briefs that this team submitted to the court.

Arthur S. Leonard is a professor of law at New York Law School and editor of Lesbian/Gay Law Notes

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