Charles Cohen
85 Geo. Wash. L. Rev. 536
No widely accepted legal rule governs how courts adjudicate claims made
by transgender parents for custody of, and visitation with, their children. The
result is a patchwork of rules, none of which guarantees these parents nondiscriminatory
consideration of their claims for custody and visitation. To correct
this inequitable treatment, courts should apply the intermediate scrutiny test of
the Equal Protection Clause to prevent discrimination when making such
decisions.
This Note first explores the current per se and nexus approaches used by
courts to adjudicate custody and visitation claims by transgender parents.
Next, this Note surveys the current legal status of transgender persons under
the law. Finally, the recent legal recognition of the group’s minority status and
numerous parallels to laws protecting persons on the basis of sex, are applied
to the case of custody and visitation decisions. This Note demonstrates that the
intermediate scrutiny test of the Equal Protection Clause is the most appropriate
standard for appellate courts to use when considering the relevance of a
parent’s gender identity in such cases.
