Gender, Sexuality and Parental Rights — Two Texas Cases

Posted on December 3rd, 2012 by Lauren Gutterman

Lauren Gutterman is Assistant Director at the Center for Gender and Sexuality Law. She is working on a book manuscript about the personal experiences and public representation of wives who desired women between 1945 and 1979.

Jessica Lynn, a transgender woman, is charting new territory as she fights to maintain the right to see her son in Dallas, Texas. Jessica and her ex-wife divorced in California in 1996 and shared custody of their three sons for several years afterwards. In 2009, Jessica’s ex moved with their two younger sons to Texas, while the oldest remained in California with Jessica. Jessica’s older two sons are aware of her transition, but she and her ex have kept the news from their youngest child. Jessica believes her youngest son, now 13, is old enough to know that his father has become a woman. But Jessica’s ex disagrees and filed paperwork in October seeking to terminate Jessica’s parental rights on the basis of emotional abuse and abandonment. While transgender parents in other states have faced similar custody battles, according to a recent article in the Dallas Voice, there is little case law on transgender parents’ rights in Texas.

Jessica’s case calls to mind that of another unconventional mother, Mary Jo Risher, who similarly fought for custody of her young son in Dallas in 1976. Mary Jo was not transgender, but like Jessica began a major life transition after securing a divorce: she came out as a lesbian and embarked on a serious romantic relationship with another divorced mother, Ann Foreman. Eventually, Mary Jo and Ann moved in together, along with Ann’s daughter and Risher’s two sons. Soon afterwards, Mary Jo’s ex-husband reopened their custody case and instigated a bitter fight for their youngest child, alleging that Mary Jo’s lesbianism made her an unfit parent. Among the earliest lesbian mothers’ custody battles, Mary Jo’s case attracted national attention and even inspired a sympathetic television movie, A Question of Love (1978).

Lesbian mothers who succeeded in winning child custody in the 1970s typically stressed their children’s gender and sexual conformity: the fact that their daughter loved wearing dresses and play-acted at getting married, or that their son excelled at sports and had a girlfriend. They often brought in psychological experts to testify that having a lesbian mother would not cause a child to become homosexual. Certainly, these mothers and their lawyers were acting under considerable constraints and fighting overwhelming discrimination in the courts. Many of these women probably were, personally and politically, critical of mainstream notions of masculinity and femininity. In their homes, they may well have sought to challenge conventional ideas about what it means to be a man or a woman. Nonetheless, in court they upheld the notion that good mothers raised their children according to normative gender roles. They choose not to directly address the question of whether a mother—lesbian or otherwise—who undermines rigid gender binaries is a fit parent.

This lingering question has had repercussions for both Mary Jo and Jessica. One of the most important factors in the outcome of Mary Jo’s case was the testimony of a court appointed psychologist who criticized Mary Jo’s masculine clothing and her decision to dress her son in “girls’” clothes: a YWCA T-shirt on one occasion, and a denim jacket and pants belonging to Ann’s daughter on another. The psychologist argued that these choices, not Mary Jo’s homosexuality, indicated her poor judgment as a parent, and Mary Jo ultimately lost custody of her 11-year-old son.  Now, more than thirty-five years later, Jessica faces similar accusations that her gender non-conformity is “dangerous to the mental health and emotional well-being” of her son. While discrimination against gay and lesbian parents has lessened since the 1970s, sadly, parents who trouble gender boundaries–whatever their sexual orientation–continue to be perceived as a hazard to their children.


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