There are very few cases addressing the rights of transgender parents. Thus, parents who are transgender have less established legal protection than lesbian and gay parents. The ACLU believes that the Constitution does not permit family courts to discriminate against parents based on their gender identity, but most courts have not addressed this issue.

For transgender people who became biological parents during relationships prior to transitioning and coming out as transgender, the main issue is the right to maintain custody or visitation with their children. Some courts have denied transgender parents visitation with their children or allowed visitation only on the condition that the parent present as their birth gender—a practice the ACLU believes is wrong.

For transgender people who become parents after transitioning, an important issue is the legal status of their marriages, upon which their parental rights sometimes rest. For example, one way a transgender man may become a parent is that his wife bears a child through donor insemination. In many states, if a married woman has a child through donor insemination, her husband is automatically legally recognized as the father or he may adopt the child. But if the woman lives with her male partner but is not married to him, she is the sole legal parent, and in some states, her partner would not be permitted to adopt the child. Thus, a transgender man’s parental status will often turn on whether his marriage is deemed to be valid (based on whether he is recognized as male). For transgender men and women who seek to jointly adopt a child with their spouses, the legal status of their marriages may be determinative of their ability to do so. That is because in many states, only married couples may jointly adopt a child.

In recent years, some state courts have invalidated marriages between a transgender man and his wife or between a transgender woman and her husband, refusing to recognize the transgender spouse’s actual gender and declaring the marriage void as a same-sex marriage. This has resulted in some transgender parents being treated as legal strangers to their children. The “psychological parenthood” doctrine (discussed in the previous section) may serve to protect transgender parents’ relationships with their children in some states.