Educating the Courts

Transgendered Americans have always lived on the fringe of society. While discrimination against LGBT citizens has benefited from a massive awareness campaign—through accurate media illumination and legislative intervention—gay people often forget about our transgendered brothers and sisters in our quest for equality. We forget that equality for everyone means everyone, not just those we are comfortable with.

Every year, the National Lesbian and Gay Law Association meets to discuss the most recent developments in LGBT law. The panels on transgender issues always strike me as some of the most important. I meet amazing people who are true pioneers, as well as brilliant attorneys. But, until recently, I have never had the opportunity to personally represent a transgendered client.

My practice is primarily focused on family law and estate planning within the gay community. Occasionally, though, I will consult on a traditional matrimonial, or divorce, case—and that’s where my opportunity arose.

As a marriage activist, I know that divorce is the other side of marriage. You can’t have the good without the bad. Divorce cases are extremely difficult for the attorney because you are frequently dealing with people who are at their worst. They are angry and hurt and, when there are children involved, they sometimes make incredibly bad decisions.

But, ironically, divorce is truly one of the great things about marriage. With a built-in legal procedure to dissolve a relationship, there is no way that one partner will egregiously take advantage of another. I have seen too many cases where the children were adopted in the name of one of the partners, who also held title to the couple’s home and carried the health insurance policy. When that partner wanted to end the relationship, the non-entitled partner was literally left out in the cold.

This became clear to me recently when a new client called for a traditional matrimonial consultation. He told me that he had been with his wife for more than 15 years, but only married her in 2000 because before the marriage, he lived as a woman. He was not legally free to marry his partner when they were the same sex, but once he transitioned into his true self, the marriage laws of New York allowed him to be fully recognized by society through the state’s Domestic Relations Law.

As we sat at his preliminary hearing, in Suffolk County no less, I marveled at how my Canadian marriage to my husband Gary, also together for more than 15 years, is not recognized here in New York. My client is an incredibly brave man who, prior to transitioning, experienced more discrimination than I may ever know. Yet now, he is protected by the laws of New York State. I couldn’t help but to feel a bit envious.

It all hit home during the actual conference with the judge’s law secretary, a woman whose opinion meant more to this matrimonial case than anyone else’s, as she would write the final decision for the judge’s signature. Her determination of the proper equitable distribution would be sacrosanct. We argued that while the couple was only married for five years, they were a couple in every sense of the word since 1987 and would have married much sooner if the law had allowed. A longer marriage means more marital property to be divided among the spouses.

While our argument was ultimately not persuasive because the current law only values the actual length of the marriage, the law secretary listened intently and heard an argument that she had never heard before. Her view of marriage expanded. Hopefully the next time she hears a nontraditional case, she will have a deeper understanding of our needs and a more acute sense of fairness.

With an eye toward creating a new sense of fairness, the chief justice of the Court of Appeals of New York, our highest court, recently commissioned a panel to look at the current Domestic Relations Law (DRL.) The goal was to determine where the DRL needs to grow and how that growth should take place. The main thrust of the report dealt with New York’s fault requirement for divorce—one party must assert fault by the other in order to dissolve the marriage. I joined a group of nontraditional family law attorneys to submit our recommendations for making the DRL more “gay-friendly.”

The final report was released this month and our efforts paid off. The commission recommended granting standing to gay and lesbian parents to seek custody of and parenting time with their non-biological, non-adopted children. The commission also suggested extending to lesbian parents the protections of DRL sec. 73, which grants legal parenthood to a husband whose wife conceives using donor insemination.

But the real power in their recommendation came in a much broader statement: “Finally, insofar as the issues raised herein involve equal protection under the law, the dissolution of marriages, the distribution of the marital estate, and determination of custody and shared parenting time, it is the opinion of a majority of this Commission, based on substantial evidence submitted to it, that these important issues could be substantially addressed by the extension of civil marriage to same sex couples in New York State. Therefore, the Commission supports, in principle, such a legislative amendment to the Domestic Relations Law.”

Let’s hope the legislators and the judges in New York listen.


Anthony M. Brown served as research assistant to Nan Hunter, founder of the Gay and Lesbian Project at the American Civil Liberties Union and helped prepare the brief for Lawrence v. Texas sodomy case while interning at Lambda Legal in 2002. He currently heads the Nontraditional Family and Estates Law division of the law firm of McKenna, Siracusano & Chianese and is on the board of directors of The Wedding Party. He can be reached at: