Post-Op, Marriage Voided

But Florida court holds ruling on trans man’s child custody

In a curiously incomplete opinion, a three-judge panel of the 2nd District Court of Appeal of Florida ruled on July 23 that the marriage of Michael J. Kantaras and Linda G. Kantaras was “void ab initio” because Michael, a transgendered man, was not “male” for purposes of Florida law at the time they married.

However, the court ruled that the question of legal custody of their two children was not settled in Linda’s favor by this ruling, and sent the case back to the Pasco County Circuit Court to determine whether Michael or Linda should have custody.

The court said nothing about the validity of Michael’s adoption of the older child, which was also being contested by Linda in this case, and provided no guidance to the lower court about how to settle the remaining issues.

The case, in which the National Center for Lesbian Rights and Equality Florida, an lesbian, gay, bisexual and transgender rights organization, provided representation to Michael, gained national media notoriety during the trial, and produced an 800-plus-page decision from trial judge Gerrard O’Brien.

Born female in 1959, Kantaras changed his name to Michael in 1986 after being diagnosed with gender dysphoria, and went through a virtually complete gender-reassignment procedure, including hormone treatments and surgical procedures. Michael did not undergo constructive surgery to make an artificial penis, but hormone treatments resulted in an enlarged clitoris that functioned like a penis for some purposes.

Linda, who was pregnant as a result of sexual relations with another man at the time that they married in 1989, knew about Kantaras’ gender history. After the marriage and the birth of the child, Linda consented to Michael adopting the child. The couple subsequently had a second child, with Michael’s brother as sperm donor. Under Florida law, Michael was the presumptive legal father of any child born to his wife during the marriage, including one conceived through donor insemination.

Throughout the marriage and adoption proceedings, Michael presented himself to public authorities as male, consistent with his driver’s license, passport, other documents and physical appearance.

In 1998, Michael petitioned for dissolution of the marriage and custody of both children. Linda opposed the action on the ground that Michael, having been born female, could never have entered a valid marriage. She claimed the marriage was void from the beginning, and Michael should be found to have no parental rights over either child. Linda argued that Michael was really a lesbian and should not have been allowed to adopt because of the Florida law forbidding adoptions by gay people, recently upheld by the federal appeals court in Atlanta.

Judge O’Brien conducted lengthy hearings full of expert testimony about the nature of human gender and sexuality, and received the most up-to-date information about transsexuality and gender reassignment. O’Brien found that the appropriate modern view was to accept gender reassignment and consider Michael to be male and thus legally capable of marrying a woman. The judge was particularly persuaded by a recent appellate decision from Australia, which forbids same-sex marriage is forbidden but where an appeals court upheld a marriage involving a post-operative transsexual.

Writing for the unanimous three-judge Florida appellate panel, Judge Carolyn K. Fulmer disagreed with O’Brien’s approach to the case, finding that he had made an essentially legislative judgment inappropriate for the court to make.

Fulmer cited recent decisions by appellate courts in Kansas, Ohio and Texas, all of which found that in interpreting statutes using the terms “male” and “female,” the correct approach is to employ “the common meaning of male and female, as those terms are used statutorily, to refer to immutable traits determined at birth.”

Having found that the marriage was void, however, Fulmer insisted that this did not necessarily “take into consideration the best interests of the children involved in this case.” O’Brien had devoted considerable analysis to the “best interests” question in his original opinion, and concluded that the children would be better off with Michael than Linda, but this analysis was made as one between two legal parents.

“We do not attempt to undertake a determination of the legal status of the children resulting from our conclusion that the marriage is void,” said Fulmer. “The legal status of the children and the parties’ property rights will be issues for the trial court to examine in the first instance on remand.”

Several key issues remain unresolved. The appellate court did not say anything about whether Michael is a legal parent of the child whom he adopted, although the ruling seems to find, at least implicitly, that he would not be the legal father of the second child, whom he never adopted. The ruling also fails to say a word about how the trial judge should sort out the best interests of the children in light of Michael’s potential status as a “de facto” parent of both children.

It is also not clear how the trial court will respond to Linda’s argument that the Florida statute banning gays from adopting should be used to find Michael’s adoption invalid. Will Florida recognize the significant distinction between gender identity and sexual orientation and thus find the anti-gay ban irrelevant to the question of whether a post-operative transsexual can adopt a child?

As in some other human rights areas, the United States lags seriously behind in its track record of litigation over transgender marriage rights compared to Australia and Europe, where a recent decision of the European Court of Human Rights held that signatories to the European Convention on Human Rights must recognize post-operative transsexuals in their acquired gender. The United Kingdom recently passed legislation under which transsexual marriages will be recognized.

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