Transgender Man Denied Parental Rights
Judge refuses to recognize couple's 'marriage'
[CHICAGO, IL] - Ruling that same-sex marriages are illegal in Illinois, a Cook County judge today denied parental rights to a transgender male.
In his 13-page opinion, Judge Gerald Bender concluded that, although the 10-year-old boy in question had established a bond with his "father," the man had no legal standing to seek custody.
Citing case law that the child's best interest should be the controlling factor in determining visitation rights, Bender did rule that visitation would be allowed to continue.
Cook County Public Guardian Patrick Murphy, who represented the child in the case, said the boy wants to live with his father, not just visit him.
"We're disappointed," Murphy said. "And of course we will appeal it."
"It's up to the legislature ... to say that transgender couples can marry or not marry, and I think the judge is right on that," Murphy said.
"In this case, though, two people -- two adults -- had a child through artificial insemination, signed a contract to raise him as their child. And my client, the kid who's almost 11 years old, relied upon that.
"And because the mom and dad held themselves out as parents, he has a relationship with the alleged father, treats him as a father, loves him as a father, and I think it's unconstitutional to cut off that relationship after 11 years."
Bender had heard a total of about three weeks of testimony between opening arguments last September and closing arguments in January.
"I know everyone waited a long time for this day," Bender said before summarizing the decision in his downtown Chicago courtroom. "It certainly is unique in the law in Illinois."
Susan Goreczny, the lawyer for the father, left the courthouse without speaking to reporters. The father was not present in court today.
The mother and an attorney were in Bender's courtroom, but they also departed without talking to reporters.
Other states have granted custody and visitation rights in non-traditional families, usually those headed by gay and lesbian couples. The transgender aspect, along with the contracts and the length of the relationship, gave this case an unusual twist.
The father first submitted to hormone therapy 24 years ago, when he was 18. He underwent a hysterectomy and oophorectomy -- removal of the ovaries -- in 1991. Shortly after, his birth certificate was legally changed to reflect a new male name and identity.
In 1989, the couple entered into an artificial insemination agreement. Both parties signed a contract, agreeing that from the moment of conception, they would accept the role of parents. Their son was born July 20, 1992, and both names were listed on the birth certificate, according to court testimony.
Six years later, the couple separated and the mother and son moved in with her parents. The father -- who has had visitation every other weekend and one night on off-weeks -- wanted status as a custodial parent.
The mother's attorney, Burt Hochberg, contended successfully that because Illinois does not recognize same-sex marriages, the 42-year-old father, who was born a female but has been living as a male for 20 years, had no legal standing to argue for custody.
Hochberg said that, even though the couple went through a marriage ceremony in 1985 and had a minister sign their marriage certificate, the father retained female genitalia, rendering their union null and void.
Goreczny contended that her client was a man, and the union was valid.
Murphy said that gender and marriage were irrelevant, and that the key factors were that that the boy knows the father, accepts him and loves him as a parent.
To shield the boy's identity, the couple's names were not disclosed.