Difference between revisions of "Same Sex Relationships and Issues Affecting Transgender and Transsexual People"

Legislated discrimination in British Columbia between opposite- and same-sex relationships has steadily been erased in the context of family law. To quote <!--spelled with lower case on purpose-->[http://www.barbarafindlay.com/ barbara findlay QC], a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:

She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same sex couples.  

How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same sex couples cannot.

Whether the battle over a child is between two parents of the same gender or between parents of opposite genders or families of more than two parents or guardians, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:

<blockquote>Applications were made by the by biological mother and the mother's lesbian partner for custody and child support. The parties had three year unmarried relationship in which the mother remained at home and her partner worked outside the home. Both acted as parents to the child, and following separation, the partner exercised liberal access to the child. The child later, by agreement, went to live mostly with the biological mother's partner. The court found the child to have benefited from the care of both women, and ordered joint custody with the primary residence of the child to be with the biological mother of the child. Negligible access was given to the father in light of a history of disinterest in the child. No weight was given to the mother's sexual orientation.</blockquote>

<blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote>

''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):

<blockquote>Application by mother to vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote>

<blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote>

<blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote>

<blockquote>A mother and father both sought sole custody of their children. The parties were of Aboriginal Mohawk ancestry. The father argued that it was in the children's best interests to reside with him as the mother's new same-sex relationship was "incompatible with traditional Mohawk ways." </blockquote>

<blockquote>The court acknowledged that some of the many reasons couples choose to marry are intimacy, companionship, and societal recognition. These reasons are independent of the sex or gender of the individuals. Both same-sex and opposite-sex couples are capable of forming loving and lasting relationships. </blockquote>

<blockquote>The sexual preference of a parent is but one of the many factors courts consider in determining the best interests of children. While the father had recently been charged in relation to his substance abuse, the mother had found a home and a job, obtained counselling for the children, and enrolled the children in extracurricular activities. The best interests of the children were better served by residing with the mother. The court awarded sole custody to the mother.</blockquote>

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.

If you have a family law problem and your orientation, gender, or identity becomes an issue, <span class="noglossary">contact</span> a lawyer known to be sympathetic or one who is an activist on the issue, such as barbara findlay or another lawyer she can refer you to.

Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like "Will and Grace," "The Birdcage," and "The L Word" have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the transgender community.  

On the bright side, the single reported case I was able to find in researching transgender and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision: