Law Times

Law Times • November 5, 2012 Parsing the family law effects of transgender recognition FOCUS O BY JUDY VAN RHIJN For Law Times ing of Toby's Act in June 2012. The act amends the Human ntario has made itself a leader in the recog- nition of transgender rights with the pass- Rights Code to prohibit discrim- ination 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 cer- tificates without first undergoing sex-change surgery. The changes flowed from a significant decision from the Hu- man 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 designa- tion on their birth registration to be discriminatory. The decision upheld the notion of recognizing gender based on lived identity rather than as something depen- dent on a surgical procedure. The family court is another venue where transgender rights have been slowly gaining rec- ognition over time. These days, there' 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 no gender distinction in vantage is custody and access. In Canada, one in four trans- s still a severe disad- genders 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 genera- tions 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 cli- ents 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 any- their children. thing else about 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' signment was still being treated as a "material change of circum- stances" in the agreement. "It did take a trial before we had a posi- tive result," Radbord recalls. "In the case conference set- s gender reas- ting, there were some discour- aging 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 evi- dence found there was no ad- verse impact on the child and that it was in fact in the child' best interests to have the arrange- ment continue. 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 consti- tute a material change. However, very few cases go to " The court held trial and in the bargaining process, transgender parents are under sig- nificant pressure. "They are afraid to take it all the way to trial or they can't afford to, they are oſten settling for less than they would receive if it was just a consideration of the child' " says Radbord. "So interests. They are pressured to accept limitations on dress to ob- tain time spent with children or to forego a relationship with the chil- dren altogether. s best transgender parenting work- ing group organized by the LG- BTQ Parenting Network. She describes some of the first-hand Radbord is a member of the " Untitled-3 1 12-09-25 3:54 PM s 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 chil- dren caught in family law matters who are dealing with transgender issues themselves. One of her cli- ents 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 re- marks and represented the child as being gay. "This represents a gap of knowledge. There is a dif- ference between being transgen- dered 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." LT PAGE 11 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 ac- cess 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 " Childview_LT_June18_12.indd 1 www.lawtimesnews.com 12-06-12 11:09 AM

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