Printer Friendly

Transparent: when legal fictions and judicial imagination make facts disappear, they enforce transphobic discrimination.

APPENDIX I

Suggested information to use in educating judges about transgender people

Language

All professions' members talk to each other in their own special language. The law is no exception. In the law, we sometimes use what appear to be ordinary words in extraordinary ways. (180) Words have power.

   [W]ords in the law, their meaning, their selection, and order, are
   paramount. The particular selection and sequence of the words in
   the law are the source of its power. A single, well-chosen word can
   win a case, or a heart, or enforce a contract. A single, ill-chosen
   word or comment can, on the other hand, breach a contract, destroy
   a relationship, or lose a case. (181)


Though words have power to connect us, they also have power to exclude. Some people are outsiders, excluded from the heart of community life, by the words used to define them.

Pronouns.

"People should be treated according to their self-identified gender.... While most people have never questioned their gender identity, some people have spent a great deal of time struggling over it," trying to reconcile how they feel with how they look, trying to decide how to cope with the discrepancy, how to tell family and friends. (182) Living differently from one's sex assigned at birth "is not undertaken lightly." (183) Simple respect requires referring to people with the words they prefer. Some activists advocate using gender-neutral pronouns: ze (pronounced zee) or sie (pronounced see) in place of he or she, and hir (pronounced heer) in place of his or her. However, some have fought very hard to claim a gendered pronoun and prefer to use that hard-won pronoun. Identification defined by others can negatively affect transgender people. "Because it connects people to data, identification attaches informational baggage to people. This alters what others learn about people as they engage in various transactions and activities." (184)

"Transgender" is an "umbrella term" for "a wide range of identities" including what some sources describe as transsexual people, regardless of whether they undergo or plan to undergo hormone treatment or sex reassignment surgery. (185) In its most inclusive sense, transgender means not conforming to gender expectations. In an award-winning play entitled Clearly Marked, S. Bear Bergman (186) asks the audience, "Who here with a vagina has repaired something?" and "Who here with a penis has helped raise a child?" (187) When audience members raise their hands in response, Bergman points at them and names them "transgender, transgender, transgender, transgender." (188)

Although anyone who transgresses or transcends gender lines could be characterized as transgender, the term is also often used to refer to individuals whose sex assignment at birth is incongruent with their gender identity.

"Cisgender" (pronounced sizz-gender) refers to a person whose sex assignment at birth is congruent with her or his gender identity. (189) Along with that congruence comes an ease, an unquestioning comfort, not generally available to transgender people. (190)

A schema for analyzing dimensions of human sexual identity. (191)

For clarity, it may be useful to consider four distinct dimensions related to human sexual identity: sex, gender identity, gender expression, and sexual orientation. None of these dimensions is necessarily binary, and, although some are more highly correlated, all are capable of functioning independently.

Sex is defined biologically, with reference to chromosomes, genitalia, internal sex organs, secondary sex characteristics, and hormones. (192) Sex is generally regarded as a binary, i.e., male or female. (193)

Chromosomes are the only biological characteristics used to define sex that cannot be changed medically. (194) Chromosomes are not divisible into binary categories. (195) Using chromosomes to define sex is problematic, because they are not readily visible. Testing is intrusive and violates privacy and the results are not always unambiguous. (196)

Genitalia can be changed medically. (197) They are not always divisible into binary categories. (198) Using genitalia to define sex is problematic because testing is intrusive and violates privacy, and the results are not always unambiguous.

Internal sex organs can be changed medically. (199) They are not always divisible into binary categories. (200) Using internal sex organs to define sex is problematic because testing is intrusive and violates privacy, and the results are not always unambiguous. (201)

Secondary sex characteristics, such as a beard and breasts, can be changed medically. (202) They are not necessarily divisible into binary categories. (203) They are not necessarily reliable indicators of a person's biological sex. (204)

Hormones can be changed medically. (205) They are not divisible into binary categories, and in fact all humans have the same sex hormones, but in different quantity. (206) Using hormones to define sex is problematic because testing is intrusive and violates privacy, and the results are not always unambiguous. (207)

United States jurisprudence provides some protection against discrimination based on sex: i.e., sex is a category subjected to heightened scrutiny for equal protection analysis. (208)

Gender identity (man / woman / androgynous (209) / genderqueer (210) / boi (211) / transgender / trans / transman / transwoman etc.) is self-defined. (212) It is possibly the only truly immutable dimension of the four identified here. Some courts have recognized its immutable quality. (213) For example, the Ninth Circuit Court of Appeals said, "Sexual orientation and sexual identity are immutable; they are so fundamental to one's identity that a person should not be required to abandon them." (214) In considering whether persecution based on transgender status qualified an immigrant for asylum, the court concluded as a matter of law that the plaintiff's "female sexual identity is immutable because it is inherent in his identity; in any event, he should not be required to change it." (215) The court noted, in response to descriptions of persecution, that the plaintiff's "female sexual identity must be fundamental, or he would not have suffered this persecution and would have changed years ago." (216)

Gender identity cannot be changed by psychotherapy or by medical intervention. (217)

Gender identity receives no protection from employment discrimination under federal law. (218) It does receive protection under the laws of eighteen states, (219) the District of Columbia, (220) and at least (225) cities and towns. (221)

Gender expression (masculine, feminine, androgynous, butch, femme) encompasses appearance, demeanor, mannerisms, and various other trappings that communicate gender. It is a gloss laid on and perceivable by others. It includes some voluntary and some involuntary elements. For example, how one dresses is usually within the individual's control; how dress is culturally defined and assigned according to sex is not within the individual's control. Gender expression receives some protection in the employment context. (222)

Cultural notions of gender are fluid and evolving, and include arbitrary assignment of gender meaning to things that have no inherent gender. For example, pink, considered a feminine color today, was considered a masculine color in the (1800) s. (223) Judith Butler refers to our gender performances as "ritual social drama." (224) Hafiz says, "I view gender as a beautiful animal that people often take for a walk on a leash and might try to enter in some odd contest to try to win prizes." (225)

Gender expression is one area where transgender individuals can be distinguished from those who "cross-dress." It is possible to play with the costuming of a sex without desiring to be or believing oneself to be of that sex.

Sexual orientation (heterosexual, homosexual, bisexual, asexual, pansexual) is often defined in a purely binary framework (heterosexual or not heterosexual), referring to the object(s) of one's physical and emotional attraction. The binary provides categories that are over-inclusive and may simultaneously be under-inclusive. Sexual orientation functions independently of the other dimensions. It is not necessarily binary. It appears to have a biological base. (226) It appears to be immutable. Whom "we love and why we love them is often as mysterious and as unfathomable as we are." (227) There is no general protection under federal law against employment discrimination based on sexual orientation, though "[t]he federal government and a large majority of states bar sexual orientation discrimination in government employment; nearly half the states and more than (100) municipalities bar such discrimination by private employers." (228)

Transgender people tend to be included with gay, lesbian, and bisexual people, but this is not necessarily a logical inclusion. A transgender person can have any of the possible sexual orientations. The sexual orientation of some transgender people changes as a result of going through sex reassignment treatment. (229) However, people living on the margins of "ordinary" sexual definitions tend to be more accepting of transgender individuals and issues than those who live squarely within what is considered "normal." S. Bear Bergman refers to transgender rights and gay and lesbian rights as two separate boats. (230) "As a person with one foot in each boat, I have a vested interest in being sure they stay close together," Bergman says. (231) Depending on how and when a person's sex is defined, a trans person attracted exclusively to men could be characterized as exclusively heterosexual or exclusively gay.

Some feminists, while supporting gay and lesbian rights, object to regarding transgender women as women. (232) The objections seem to have two bases. One basis for objection is the notion that a transgender woman has participated in patriarchal privilege as a biological man and therefore cannot belong to the group that is defined partly by its members being targets of oppression. (233) But trans women are not full participants in patriarchal privilege and are outsiders of a different kind. It is short-sighted to look at only one dimension, when oppression is multi-dimensional. A second basis for objection is that trans women seek out that which they regard as feminine, while some feminists deconstruct and reject femininity; they see transgender women as undoing all of their hard work. I heard a woman who identified herself as a feminist lesbian protest to a group of transgender women, "I've been working so hard to take apart the gender box and here you are, trying to climb in it."

Cisgender people are generally more able than trans people to choose, with few psychological consequences, whether to go along with their expected gender expression or to defy it. Because of the shared experience of marginalization, it makes practical sense for transgender people to ally with gay, lesbian, and bisexual people, even though it does not make logical sense.

APPENDIX II

Statutes, court rules, administrative regulations, and documents adopted pursuant to them, addressing imputing income to unemployed parents for setting child support obligations

Emphasis added to highlight portions relevant to imputing or attributing income to an unemployed parent.

Alabama

Ala. R. Jud. Admin. 32, Child Support Guidelines (B)(5)

(B) Definitions.

(1) Income. For purposes of the guidelines established by this rule, "income" means actual gross income of a parent, if the parent is employed to full capacity, or the actual gross income the parent has the ability to earn if the parent is unemployed or underemployed.

...

(5) Unemployment; Underemployment. If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent's imputed income. In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent's recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community. The court may take into account the presence of a young or physically or mentally disabled child necessitating the parent's need to stay in the home and therefore the inability to work.

Alaska

Alaska R. Civ. P. 90.3(a)(4)

(4) Potential Income. The court may calculate child support based on a determination of the potential income of a parent who voluntarily and unreasonably is unemployed or underemployed. A determination of potential income may not be made for a parent who is physically or mentally incapacitated, or who is caring for a child under two years of age to whom the parents owe a joint legal responsibility. Potential income will be based upon the parent's work history, qualifications, and job opportunities. The court also may impute potential income for non-income or low income producing assets.

Arizona

Ariz. Rev. Stat. Ann. [section] 25-320 (West 2014)

N. The court shall presume, in the absence of contrary testimony, that a parent is capable of full-time employment at least at the applicable state or federal adult minimum wage, whichever is higher. This presumption does not apply to noncustodial parents who are under eighteen years of age and who are attending high school.

Ariz. Sup. Ct. Child Support Guidelines, amended by Admin Order 2011-46 (2011)

E. If a parent is unemployed or working below full earning capacity, the court may consider the reasons. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a parent up to his or her earning capacity. If the reduction in income is voluntary but reasonable, the court shall balance that parent's decision and benefits there from against the impact the reduction in that parent's share of child support has on the children's best interest. In accordance with Arizona Revised Statutes Section 25-320, income of at least minimum wage shall be attributed to a parent ordered to pay child support. If income is attributed to the parent receiving child support, appropriate childcare expenses may also be attributed.

The court may decline to attribute income to either parent. Examples of cases in which it may be inappropriate to attribute income include, but are not limited to, the following circumstances:

1. A parent is physically or mentally disabled,

2. A parent is engaged in reasonable career or occupational training to establish basic skills or reasonably calculated to enhance earning capacity,

3. Unusual emotional or physical needs of a natural or adopted child require that parent's presence in the home, or

4. The parent is a current recipient of Temporary Assistance to Needy Families.

California

Cal. Fam. Code [section] 4058 (West 2015)

[section] 4058. Annual gross income of parents

(b) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children.

Colorado

Colo. Rev. Stat. Ann. [section] 14-10-115 (West 2015)

3(c) "Income" means the actual gross income of a parent, if employed to full capacity, or potential income, if unemployed or underemployed. Gross income of each parent shall be determined according to subsection (5) of this section.

...

5(b)(1) If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income; except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a child under the age of thirty months for whom the parents owe a joint legal responsibility or for an incarcerated parent sentenced to one year or more.

Connecticut

No explicit provision for imputing income to unemployed parent, but

Conn. Gen. Stat. Ann. [section] 46b-84 (a), (d), (f)(1) (West 2015)

(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.

...

(d) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.

...

(f)(1) After the granting of a decree annulling or dissolving the marriage or ordering a legal separation, and upon complaint or motion with order and summons made to the Superior Court by either parent or by the Commissioner of Administrative Services in any case arising under subsection (a) or (b) of this section, the court shall inquire into the child's need of maintenance and the respective abilities of the parents to supply maintenance. The court shall make and enforce the decree for the maintenance of the child as it considers just, and may direct security to be given therefor, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.

Delaware

Del. Fam. Ct. R. Civ. R 501(a)-(c)

Rule 501. Income attribution.

(a) General. In determining each parent's ability to pay support the Court considers the health, income and financial circumstances, and earning capacity of each parent, the manner of living to which the parents had been accustomed as a family unit and the general equities inherent in the situation.

(b) Actual income. A parent employed full-time in a manner commensurate with his or her training, education and experience shall be presumed to have reached their reasonable earning capacity.

(c) Attribution. Unemployment or underemployment either voluntary or due to misconduct or failure to provide sufficient evidence or failure to appear for a hearing or mediation conference may cause income to be attributed. The Court may examine earnings history, employment qualifications and the current job market. The Court may take judicial notice of Department of Labor wage surveys for individual occupations to estimate or corroborate earning capacity. Where no better information exists, a parent may be attributed at least as much income as the other party.

District of Columbia

D.C. Code [section] 16-916.01(d)(10) (2015)

(10) If the judicial officer finds that a parent is voluntarily unemployed or underemployed as a result of the parent's bad faith or deliberate effort to suppress income, to avoid or minimize the parent's child support obligation, or to maximize the other parent's obligation, the judicial officer may impute income to this parent and calculate the child support obligation based on the imputed income. The judicial officer shall not impute income to a parent who is physically or mentally unable to work or who is receiving means-tested public assistance benefits. The judicial officer shall issue written factual findings stating the reasons for imputing income at the specified amount.

Florida

Fla. Stat. Ann. [section] 61.30(2)(b)-(c) (West 2015)

61.30. Child support guidelines; retroactive child support

(2)(b) Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent's part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. If the information concerning a parent's income is unavailable, a parent fails to participate in a child support proceeding, or a parent fails to supply adequate financial information in a child support proceeding, income shall be automatically imputed to the parent and there is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census. However, the court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation or as set forth below:

1. In order for the court to impute income at an amount other than the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census, the court must make specific findings of fact consistent with the requirements of this paragraph. The party seeking to impute income has the burden to present competent, substantial evidence that:

a. The unemployment or underemployment is voluntary; and

b. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties' time-sharing schedule and their historical exercise of the timesharing provided in the parenting plan or relevant order.

2. Except as set forth in subparagraph 1, income may not be imputed based upon:

a. Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or

b. Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties' existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

(c) Public assistance as defined in s. 409.2554 shall be excluded from gross income.

Georgia

Ga. Code Ann. [section] 19-6-15 (f)(4)(D)(i)-(vi) (West 2015)

(D) Willful or voluntary unemployment or underemployment. In determining whether a parent is willfully or voluntarily unemployed or underemployed, the court or the jury shall ascertain the reasons for the parent's occupational choices and assess the reasonableness of these choices in light of the parent's responsibility to support his or her child and whether such choices benefit the child. A determination of willful or voluntary unemployment or underemployment shall not be limited to occupational choices motivated only by an intent to avoid or reduce the payment of child support but can be based on any intentional choice or act that affects a parent's income. In determining willful or voluntary unemployment or underemployment, the court may examine whether there is a substantial likelihood that the parent could, with reasonable effort, apply his or her education, skills, or training to produce income. Specific factors for the court to consider when determining willful or voluntary unemployment or underemployment include, but are not limited to:

(i) The parent's past and present employment;

(ii) The parent's education and training;

(iii) Whether unemployment or underemployment for the purpose of pursuing additional training or education is reasonable in light of the parent's responsibility to support his or her child and, to this end, whether the training or education may ultimately benefit the child in the case immediately under consideration by increasing the parent's level of support for that child in the future;

(iv) A parent's ownership of valuable assets and resources, such as an expensive home or automobile, that appear inappropriate or unreasonable for the income claimed by the parent;

(v) The parent's own health and ability to work outside the home; and

(vi) The parent's role as caretaker of a child of that parent, a disabled or seriously ill child of that parent, or a disabled or seriously ill adult child of that parent, or any other disabled or seriously ill relative for whom that parent has assumed the role of caretaker, which eliminates or substantially reduces the parent's ability to work outside the home, and the need of that parent to continue in the role of caretaker in the future. When considering the income potential of a parent whose work experience is limited due to the caretaker role of that parent, the court shall consider the following factors:

(I) Whether the parent acted in the role of full-time caretaker immediately prior to separation by the married parties or prior to the divorce or annulment of the marriage or dissolution of another relationship in which the parent was a full-time caretaker;

(II) The length of time the parent staying at home has remained out of the work force for this purpose;

(III) The parent's education, training, and ability to work; and

(IV) Whether the parent is caring for a child who is four years of age or younger. If the court or the jury determines that a parent is willfully or voluntarily unemployed or underemployed, child support shall be calculated based on a determination of earning capacity, as evidenced by educational level or previous work experience. In the absence of any other reliable evidence, income may be imputed to the parent pursuant to a determination that gross income for the current year is based on a 40 hour workweek at minimum wage.

A determination of willful and voluntary unemployment or underemployment shall not be made when an individual is activated from the National Guard or other armed forces unit or enlists or is drafted for full-time service in the armed forces of the United States.

Hawaii

Haw. Fam. Ct. Mem.: 2010 Hawaii Child Support Guidelines (IV)(I)(2) (2010), available at http://www.courts.state.hi.us/docs/form/maui/2CE248.pdf [http://perma.cc/Q4EE-M9T4]

IV. TERMS AND DEFINITIONS

I. Income

(2) IMPUTED INCOME may be used when a parent is not employed full-time or is employed below full earning capacity. The reasons for this limitation must be considered. If a parent's income is limited in order to care for the child(ren) to whom the parents owe a joint legal responsibility, at least one of whom is 3 years of age or younger, then no additional income will be imputed to that parent. If all of the subject child(ren) are over 3 years of age, and the parent that receives support is mentally and physically able to work, and remains at home and does not work, then thirty (30) hours or less of weekly earnings at the minimum wage may be imputed to that parent.

If a parent's income is limited for any other reason, the parent's income will be determined according to his or her income capacity in the local job market, considering both the reasonable needs of the child(ren) and the reasonable work aspirations of the parent.

Idaho

Idaho R. Fam. L. P. 126(F)(3)(a)(i)--(ii) (2015)

Rule 126. Child Support Guidelines

F. Guidelines income determination--income defined.

3. Potential Income.

a. Potential earned income. If a parent is voluntarily unemployed or underemployed, child support shall be based on gross potential income, except that potential income should not be included for a parent that is physically or mentally incapacitated. A parent shall not be deemed under-employed if gainfully employed on a full-time basis at the same or similar occupation in which he/she was employed for more than six months before the filing of the action or separation of the parties, whichever occurs first. On post-judgment motions, the six month period is calculated from the date the motion is filed. Ordinarily, a parent shall not be deemed underemployed if the parent is caring for a child not more than 6 months of age. Determination of potential income shall be made according to any or all of the following methods, as appropriate:

i. Determine employment potential and probable earnings level based on the parent's work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community.

ii. Where a parent is a student, potential monthly income during the school term may be determined by considering student loans from any source.

Illinois

750 Ill. Comp. Stat. Ann. 5/505(a)(5) (West 2015)

(5) If the net income cannot be determined because of default or any other reason, the court shall order support in an amount considered reasonable in the particular case. The final order in all cases shall state the support level in dollar amounts. However, if the court finds that the child support amount cannot be expressed exclusively as a dollar amount because all or a portion of the payor's net income is uncertain as to source, time of payment, or amount, the court may order a percentage amount of support in addition to a specific dollar amount and enter such other orders as may be necessary to determine and enforce, on a timely basis, the applicable support ordered.

Indiana

Ind. R. Ct. Child Support Rules and Guidelines 3.A.I. 3. (amended 2010), available at http://www.in.gov/judiciary/rules/child_support/ [http://perma.cc/5CQF-Y4KT]

GUIDELINE 3. DETERMINATION OF CHILD SUPPORT AMOUNT

A. Definition of Weekly Gross Income.

1. Definition of Weekly Gross Income (Line 1 of Worksheet). For purposes of these Guidelines, "weekly gross income" is defined as actual Weekly Gross Income of the parent if employed to full capacity, potential income if unemployed or underemployed, and imputed income based upon "in-kind" benefits. Weekly Gross Income of each parent includes income from any source, except as excluded below, and includes, but is not limited to, income from salaries, wages, commissions, bonuses, overtime, partnership distributions, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workmen's compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, inheritance, prizes, and alimony or maintenance received from other marriages. Social Security disability benefits paid for the benefit of the child must be included in the disabled parent's gross income. The disabled parent is entitled to a credit for the amount of Social Security disability benefits paid for the benefit of the child. Specifically excluded are benefits from means-tested public assistance programs, including, but not limited to, Temporary Aid To Needy Families (TANF), Supplemental Security Income, and Food Stamps. Also excluded are survivor benefits received by or for other children residing in either parent's home.

...

3. Unemployed, Underemployed and Potential Income. If a court finds a parent is voluntarily unemployed or underemployed without just cause, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. If there is no work history and no higher education or vocational training, the facts of the case may indicate that Weekly Gross Income be set at least at the federal minimum wage level.

COMMENTARY TO GUIDELINE 3A

Weekly Gross Income.

...

2c. Potential Income. Potential income may be determined if a parent has no income, or only means-tested income, and is capable of earning income or capable of earning more. Obviously, a great deal of discretion will have to be used in this determination. One purpose of potential income is to discourage a parent from taking a lower paying job to avoid the payment of significant support. Another purpose is to fairly allocate the support obligation when one parent remarries and, because of the income of the new spouse, chooses not to be employed. However, attributing potential income that results in an unrealistic child support obligation may cause the accumulation of an excessive arrearage, and be contrary to the best interests of the child(ren). Research shows that on average more noncustodial parental involvement is associated with greater child educational attainment and lower juvenile delinquency. Ordering support for low-income parents at levels they can reasonably pay may improve noncustodial parent-child contact; and in turn, the outcomes for their children. The six examples which follow illustrate some of the considerations affecting attributing potential income to an unemployed or underemployed parent.

(1) When a custodial parent with young children at home has no significant skills or education and is unemployed, he or she may not be capable of entering the work force and earning enough to even cover the cost of child care. Hence, it may be inappropriate to attribute any potential income to that parent. It is not the intention of the Guidelines to force all custodial parents into the work force. Therefore, discretion must be exercised on an individual case basis to determine if it is fair under the circumstances to attribute potential income to a particular nonworking or underemployed custodial parent. The need for a custodial parent to contribute to the financial support of a child must be carefully balanced against the need for the parent's full-time presence in the home.

(2) When a parent has some history of working and is capable of entering the work force, but without just cause voluntarily fails or refuses to work or to be employed in a capacity in keeping with his or her capabilities, such a parent's potential income shall be included in the gross income of that parent. The amount to be attributed as potential income in such a case may be the amount that the evidence demonstrates he or she was capable of earning in the past. If for example the custodial parent had been a nurse or a licensed engineer, it may be unreasonable to determine his or her potential at the minimum wage level. Discretion must be exercised on an individual case basis to determine whether under the circumstances there is just cause to attribute potential income to a particular unemployed or underemployed parent.

(3) Even though an unemployed parent has never worked before, potential income should be considered for that parent if he or she voluntarily remains unemployed without justification. Absent any other evidence of potential earnings of such a parent, the federal minimum wage should be used in calculating potential income for that parent. However, the court should not add child care expense that is not actually incurred.

(4) When a parent is unemployed by reason of involuntary layoff or job termination, it still may be appropriate to include an amount in gross income representing that parent's potential income. If the involuntary layoff can be reasonably expected to be brief, potential income should be used at or near that parent's historical earning level. If the involuntary layoff will be extensive in duration, potential income may be determined based upon such factors as the parent's unemployment compensation, job capabilities, education and whether other employment is available. Potential income equivalent to the federal minimum wage may be attributed to that parent.

(5) When a parent is unable to obtain employment because that parent suffers from debilitating mental illness, a debilitating health issue, or is caring for a disabled child, it may be inappropriate to attribute any potential income to that parent. Another example may be when the cost of child care makes employment economically unreasonable.

(6) When a parent is incarcerated and has no assets or other source of income, potential income should not be attributed.

Iowa

Iowa Ct. R. 9.11(4)

9.11(4) The court may impute income in appropriate cases subject to the requirements of rule 9.5. If the court finds that a parent is voluntarily unemployed or underemployed without just cause, child support may be calculated based on a determination of earning capacity. A determination of earning capacity may be made by determining employment potential and probable earnings level based on work history, occupational qualifications, prevailing job opportunities, earning levels in the community, and other relevant factors. The court shall not use earning capacity rather than actual earnings or otherwise impute income unless a written determination is made that, if actual earnings were used, substantial injustice would occur or adjustments would be necessary to provide for the needs of the child(ren) or to do justice between the parties.

Kansas

Kan. Sup. Ct. R. Child Support Guidelines II.F(1)--(2), available at http://www.kscourts. org/rules-procedures-forms/child-support-guidelines [http://perma.cc/8VGR-XMLS]

II. DEFINITIONS AND EXPLANATION

F. Imputed Income

1. Income may be imputed to the parent not having primary residency in appropriate circumstances, including the following:

a. Absent substantial justification, it should be assumed that a parent is able to earn at least the federal minimum wage and to work 40 hours per week. Incarceration does not constitute substantial justification.

b. When a parent is deliberately unemployed, although capable of working full-time, employment potential and probable earnings may be based on the parent's recent work history, occupational skills, and the prevailing job opportunities in the community.

c. If a parent is terminated from employment for misconduct, rather than laid off, their previous wage may be imputed, but shall not be less than federal minimum wage.

d. When a parent receives significant in-kind payment that reduces personal living expenses as a result of employment, such as a company car, free housing, or reimbursed meals, the value of such reimbursement should be added to gross income.

e. When there is evidence that a parent is deliberately underemployed for the purpose of avoiding child support, the court may evaluate the circumstances to determine whether actual or potential earnings should be used.

2. Income may be imputed to the parent having primary residency in appropriate circumstances, but should not result in a higher support obligation for the other parent.

Kentucky

Ky. Rev. Stat. Ann. [section] 403.212(l)-(2) (West 2015)

403.212 Child support guidelines; terms to be applied in calculations; table

(1) The following provisions and child support table shall be the child support guidelines established for the Commonwealth of Kentucky.

(2) For the purposes of the child support guidelines:

(a) "Income" means actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed.

...

(d) If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility. Potential income shall be determined based upon employment potential and probable earnings level based on the obligor's or obligee's recent work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community. A court may find a parent to be voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation.

Louisiana

La. Rev. Stat. Ann. [section] 9:315:2(B) (2015)

315:2. Calculation of basic child support obligation

B. If a party is voluntarily unemployed or underemployed, his or her gross income shall be determined as set forth in R.S. 9:315.11.

La. Rev. Stat. Ann. [section] 9:315.11(A)-(C) (2015)

[section]315.11. Voluntarily unemployed or underemployed party

A. If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. In determining the party's income earning potential, the court may consider the most recently published Louisiana Occupational Employment Wage Survey.

B. The amount of the basic child support obligation calculated in accordance with Subsection A of this Section shall not exceed the amount which the party paying support would have owed had a determination of the other party's income earning potential not been made.

C. A party shall not be deemed voluntarily unemployed or underemployed if he or she has been temporarily unable to find work or has been temporarily forced to take a lower paying job as a direct result of Hurricane Katrina or Rita.

Maine

Me. Rev. Stat. Ann. tit. 19-a, [section] 2001 5.D. (2015)

[section] 2001. Definitions

5.D. Gross income may include the difference between the amount a party is earning and that party's earning capacity when the party voluntarily becomes or remains unemployed or underemployed, if sufficient evidence is introduced concerning a party's current earning capacity.

Maryland

Md. Code Ann., Fam. Law [section] 12-201(1) (West 2015)

[section] 12-201. Definitions

Potential income

(1) (234) "Potential income" means income attributed to a parent determined by the parent's employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community.

Massachusetts

Mass. Gen. Laws Ann. Child Support Guidelines E. (West 2015)

E. Attribution of Income

Income may be attributed where a finding has been made that either party is capable of working and is unemployed or underemployed. The Court shall consider all relevant factors including without limitation the education, training, health, past employment history of the party, and the availability of employment at the attributed income level.

The Court shall also consider the age, number, needs and care of the children covered by this order. If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order.

Michigan

Friend of the Court Bureau, 2013 Michigan Child Support Formula Manual, available at http://courts.mi.gov/Administration/SCAO/OfficesPrograms/FOC/Pages/Child Support-Formula.aspx [http://perma.cc/C52E-7ZSY]

2.01(G) Potential Income

When a parent is voluntarily unemployed or underemployed, or has an unexercised ability to earn, income includes the potential income that parent could earn, subject to that parent's actual ability.

(1) The amount of potential income imputed should be sufficient to bring that parent's income up to the level it would have been if the parent had not voluntarily reduced or waived income.

(a) The amount of potential income imputed (1) should not exceed the level it would have been if there was no reduction in income, (2) not be based on more than a 40 hour work week, and (3) not include potential overtime or shift premiums.

(b) Imputation is not appropriate where an individual is employed full time (35 or more hours per week), but has chosen to cease working additional hours (such as leaving a second job or refusing overtime). Actual earnings for overtime, second job, and shift premiums are considered income.

(2) Use relevant factors both to determine whether the parent in question has an actual ability to earn and a reasonable likelihood of earning the potential income. To figure the amount of potential income that parent could earn, consider the following:

(a) Prior employment experience and history, including reasons for any termination or changes in employment.

(b) Educational level and any special skills or training.

(c) Physical and mental disabilities that may affect a parent's ability to obtain or maintain gainful employment.

(d) Availability for work (exclude periods when a parent could not work or seek work, e.g., hospitalization, incarceration, debilitating illness, etc.).

(e) Availability of opportunities to work in the local geographical area.

(f) The prevailing wage rates in the local geographical area.

(g) Diligence exercised in seeking appropriate employment.

(h) Evidence that the parent in question is able to earn the imputed income.

(i) Personal history, including present marital status and present means of support.

(j) The presence of the parties' children in the parent's home and its impact on that parent's earnings.

(k) Whether there has been a significant reduction in income compared to the period that preceded the filing of the initial complaint or the motion for modification.

(3) Imputation of potential income should account for the additional costs associated with earning the potential income such as child care and taxes that a parent would pay on the imputed income.

(4) The court makes the final determination whether imputing a potential income is appropriate in a particular case.

Minnesota

Minn. Stat. Ann. [section] 518A.32 (West 2015)

Subdivision 1. General. This section applies to child support orders, including orders for past support or reimbursement of public assistance, issued under this chapter, chapter 256, 257, 518B, or 518C. If a parent is voluntarily unemployed, underemployed, or employed on a less than full-time basis, or there is no direct evidence of any income, child support must be calculated based on a determination of potential income. For purposes of this determination, it is rebuttably presumed that a parent can be gainfully employed on a full-time basis. As used in this section, "full time" means 40 hours of work in a week except in those industries, trades, or professions in which most employers, due to custom, practice, or agreement, use a normal work week of more or less than 40 hours in a week. Subd. 2. Methods. Determination of potential income must be made according to one of three methods, as appropriate:

(1) the parent's probable earnings level based on employment potential, recent work history, and occupational qualifications in light of prevailing job opportunities and earnings levels in the community;

(2) if a parent is receiving unemployment compensation or workers' compensation, that parent's income may be calculated using the actual amount of the unemployment compensation or workers' compensation benefit received; or

(3) the amount of income a parent could earn working full time at 150 percent of the current federal or state minimum wage, whichever is higher.

Subd. 3. Parent not considered voluntarily unemployed, underemployed, or employed on a less than full-time basis. A parent is not considered voluntarily unemployed, underemployed, or employed on a less than full-time basis upon a showing by the parent that:

(1) the unemployment, underemployment, or employment on a less than full-time basis is temporary and will ultimately lead to an increase in income;

(2) the unemployment, underemployment, or employment on a less than full-time basis represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child; or

(3) the unemployment, underemployment, or employment on a less than full-time basis is because a parent is physically or mentally incapacitated or due to incarceration, except where the reason for incarceration is the parent's nonpayment of support. Subd. 4. TANF recipient. If the parent of a joint child is a recipient of a temporary assistance to a needy family (TANF) cash grant, no potential income is to be imputed to that parent.

Subd. 5. Caretaker. If a parent stays at home to care for a child who is subject to the child support order, the court may consider the following factors when determining whether the parent is voluntarily unemployed, underemployed, or employed on a less than full-time basis:

(1) the parties' parenting and child care arrangements before the child support action;

(2) the stay-at-home parent's employment history, recency of employment, earnings, and the availability of jobs within the community for an individual with the parent's qualifications;

(3) the relationship between the employment-related expenses, including, but not limited to, child care and transportation costs required for the parent to be employed, and the income the stay-at-home parent could receive from available jobs within the community for an individual with the parent's qualifications;

(4) the child's age and health, including whether the child is physically or mentally disabled; and

(5) the availability of child care providers.

This subdivision does not apply if the parent stays at home only to care for other nonjoint children.

Subd. 6. Economic conditions. A self-employed parent is not considered to be voluntarily unemployed, underemployed, or employed on a less than full-time basis if that parent can show that the parent's net self-employment income is lower because of economic conditions that are directly related to the source or sources of that parent's income.

Mississippi

Miss. Code Ann. [section]43-19-101 (West 2015)

[section] 43-19-101. Calculating support

3) The amount of "adjusted gross income" as that term is used in subsection (1) of this section shall be calculated as follows:

(a) Determine gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; absent parent's portion of any joint income of both parents; workers' compensation, disability, unemployment, annuity and retirement benefits, including an Individual Retirement Account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent's current spouse;

Missouri

Mo. Sup. Ct. R. 88.01

Rule 88.01. Presumed Child Support Amount

(a) When determining the correct amount of child support, a court or administrative agency shall consider all relevant factors, including all relevant statutory factors.

(b) There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the correct amount of child support to be awarded in any judicial or administrative proceeding.

Mo. Sup. Ct. R. Civ. Proc. Form 14

Form 14. Presumed Child Support Amount Calculation Worksheet

Line 1: Gross income

DIRECTION: Enter one-twelfth of the parent's yearly gross income.

"Gross income" includes, but is not limited to, salaries, wages, commissions, dividends, severance pay, pensions, interest, trust income, annuities, partnership distributions, social security benefits, retirement benefits, workers' compensation benefits, unemployment compensation benefits, disability insurance benefits, social security disability benefits (SSD) due to a parent's disability, veterans' disability benefits and military allowances for subsistence and quarters.

Overtime compensation, bonuses, earnings from secondary employment, recurring capital gains, prizes, retained earnings and significant employment-related benefits may be included, in whole or in part, in "gross income" in appropriate circumstances.

If a parent is unemployed or found to be underemployed, "gross income" may be based on imputed income.

Montana

Mont. Admin R. 37.62.106 (2015)

(1) "Imputed income" means income not actually earned by a parent, but which is attributed to the parent based on the provisions of this rule. It is presumed that all parents are capable of working at least 40 hours per week at minimum wage, absent evidence to the contrary.

(2) It is appropriate to impute income to a parent, subject to the provisions of (6) of this rule, when the parent:

(a) is unemployed;

(b) is underemployed;

(c) fails to produce sufficient proof of income;

(d) has an unknown employment status; or

(e) is a student.

(3) In all cases where imputed income is appropriate, the amount is based on the following:

(a) the parent's recent work history;

(b) the parent's occupational and professional qualifications; and

(c) existing job opportunities and associated earning levels in the community or the local trade area.

(4) Imputed income may be in addition to actual income and may not necessarily reflect the same rate of pay as the actual income.

(5) Income is imputed according to a parent's status as a full- or part-time student, whose education or retraining will result, within a reasonable time, in an economic benefit to the child for whom the support obligation is determined, unless actual income is greater. If the student is:

(a) full-time, the parent's earning capacity is based on full-time employment for 13 weeks and approximately half of full-time employment for the remaining 39 weeks of a 12-month period; or

(b) part-time, the parent's earning capacity is based on full-time employment for a 12-month period.

(6) Income is not imputed if any of the following conditions exist:

(a) the reasonable and unreimbursed costs of child care for dependents in the parent's household would offset in whole or in substantial part, that parent's imputed income;

(b) a parent is physically or mentally disabled to the extent that the parent cannot earn income;

(c) unusual emotional and/or physical needs of a legal dependent require the parent's presence in the home;

(d) the parent has made diligent efforts to find and accept suitable work or to return to customary self-employment, to no avail; or

(e) the court or hearing officer makes a finding that other circumstances exist which make the imputation of income inequitable. However, the amount of imputed income shall be decreased only to the extent required to remove such inequity.

Nebraska

Neb. Ct. R. [section] 4-204

... If applicable, earning capacity may be considered in lieu of a parent's actual, present income and may include factors such as work history, education, occupational skills, and job opportunities. Earning capacity is not limited to wage-earning capacity, but includes moneys available from all sources.

Nevada

Nev. Rev. Stat. Ann. [section] 125B.080 (West 2015)

Amount of payment: Determination.

8. If a parent who has an obligation for support is willfully underemployed or unemployed to avoid an obligation for support of a child, that obligation must be based upon the parent's true potential earning capacity.

New Hampshire

N.H. Rev. Stat. Ann. [section] 458-C:2 (2015)

458-C:2 Definitions.

In this chapter:

iv. (a) The court, in its discretion, may consider as gross income the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated.

New Jersey

N.J. Ct. R. 5:6A [Child Support Guidelines]

The guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that an injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.

N.J. Ct. R. Prac. App. 9-A

APPENDIX IX-A. CONSIDERATIONS IN THE USE OF CHILD SUPPORT. GUIDELINES

10. Adjustments to the Support Obligation--The factors listed below may require an adjustment to the basic child support obligation.

a. Other Legal Dependents of Either Parent. These guidelines include a mechanism to apportion a parent's income to all of his or her legal dependents regardless of the timing of their birth or family association (i.e., if a divorced parent remarries and has children, that parent's income should be shared by all children born to that parent). Legal dependents include adopted or natural children of either parent who are less than 18 years of age or more than 18 years of age and still attending high school or other secondary school. Stepchildren are not considered legal dependents unless a court has found that the stepparent has a legal responsibility for the stepchildren. When considering the use of this adjustment, the following principles shall apply:

(1) this adjustment shall be used only if requested by a serial-family parent and the income, if any, of the other parent of the secondary family is provided to the court;

(2) if the other parent in the secondary family is voluntarily unemployed or underemployed, the court shall impute income to that person (see paragraph 12) to determine the serial family parent's obligation to the children in the secondary family;

(3) this adjustment may be applied to other dependents born before or after the child for whom support is being determined;

(4) this adjustment may be requested by either or both parents (custodial and/or noncustodial);

(5) the adjustment may be applied when the initial award is entered or during subsequent modifications of the support order.

...

12. Imputing Income to Parents. The fairness of a child support award resulting from the application of these guidelines is dependent on the accurate determination of a parent's net income. If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent according to the following priorities:

a. impute income based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent's former income at that person's usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL);

b. if potential earnings cannot be determined, impute income based on the parent's most recent wage or benefit record (a minimum of two calendar quarters) on file with the NJDOL (note: NJDOL records include wage and benefit income only and, thus, may differ from the parent's actual income); or

c. if a NJDOL wage or benefit record is not available, impute income based on the full-time employment (40 hours) at the New Jersey minimum wage ($7.25 per hour). In determining whether income should be imputed to a parent and the amount of such income, the court should consider: (1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed,

(2) the reason and intent for the voluntary underemployment or unemployment,

(3) the availability of other assets that may be used to pay support, and (4) the ages of any children in the parent's household and child-care alternatives. The determination of imputed income shall not be based on the gender or custodial position of the parent. Income of other household members, current spouses, and children shall not be used to impute income to either parent except when determining the other-dependent credit. When imputing income to a parent who is caring for young children, the parent's income share of child-care costs necessary to allow that person to work outside the home shall be deducted from the imputed income.

New Mexico

N.M. Stat. Ann. [section]40-4-11.1 (West 2015)

[section] 40-4-11.1. Child support; guidelines

C. For purposes of the guidelines specified in this section:

(1) "income" means actual gross income of a parent if employed to full capacity or potential income if unemployed or underemployed. Income need not be imputed to the primary custodial parent actively caring for a child of the parties who is under the age of six or disabled. If income is imputed, a reasonable child care expense may be imputed. The gross income of a parent means only the income and earnings of that parent and not the income of subsequent spouses, notwithstanding the community nature of both incomes after remarriage;

New York

N.Y. Fam. Ct. Act [section] 413 (McKinney 2015)

[section] 413. Parents' duty to support child

1.(b) (5) "Income" shall mean,. . . (v) an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support;

North Carolina

Conf. of Chief District Judges, N.C. Child Support Guidelines, January 1, 2011, http://www.nccourts.org/forms/documents/1226.pdf [http://perma.cc/JZ33-K8RV] Income: (3) Potential or Imputed Income. If the court finds that a parent's voluntary unemployment or underemployment is the result of the parent's bad faith or deliberate suppression of income to avoid or minimize his or her child support obligation, child support may be calculated based on the parent's potential, rather than actual, income. Potential income may not be imputed to a parent who is physically or mentally incapacitated or is caring for a child who is under the age of three years and for whom child support is being determined.

The amount of potential income imputed to a parent must be based on the parent's employment potential and probable earnings level based on the parent's recent work history, occupational qualifications and prevailing job opportunities and earning levels in the community. If the parent has no recent work history or vocational training, potential income should not be less than the minimum hourly wage for a 40-hour work week.

North Dakota

N.D. Admin Code 75-02-04.1-01 (2015)

Definitions. 4.b.

b. Examples of gross income include salaries, wages, overtime wages, commissions, bonuses, employee benefits, currently deferred income, dividends, severance pay, pensions, interest, trust income, annuities income, gains, social security benefits, workers 'compensation benefits, unemployment insurance benefits, distributions of retirement benefits, receipt of previously deferred income to the extent not previously considered in determining a child support obligation for the child whose support is under consideration, veterans' benefits (including gratuitous benefits), gifts and prizes to the extent they annually exceed one thousand dollars in value, spousal support payments received, refundable tax credits, value of in-kind income received on a regular basis, children's benefits, income imputed based upon earning capacity, military subsistence payments, and net income from self-employment.

Ohio

Ohio Rev. Code Ann. [section] 3119.01(5), (11) (West 2015)

Calculation of child support obligation definitions.

(5) "Income" means either of the following:

(a) For a parent who is employed to full capacity, the gross income of the parent;

(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent.

...

(11) "Potential income" means both of the following for a parent who the court pursuant to a court support order, or a child support enforcement agency pursuant to an administrative child support order, determines is voluntarily unemployed or voluntarily underemployed:

(a) Imputed income that the court or agency determines the parent would have earned if fully employed as determined from the following criteria:

(i) The parent's prior employment experience;

(ii) The parent's education;

(iii) The parent's physical and mental disabilities, if any;

(iv) The availability of employment in the geographic area in which the parent resides;

(v) The prevailing wage and salary levels in the geographic area in which the parent resides;

(vi) The parent's special skills and training;

(vii) Whether there is evidence that the parent has the ability to earn the imputed income;

(viii) The age and special needs of the child for whom child support is being calculated under this section;

(ix) The parent's increased earning capacity because of experience;

(x) The parent's decreased earning capacity because of a felony conviction;

(xi) Any other relevant factor.

Oklahoma

Okla. Stat. Ann. tit. 43, [section] 118B(D) (West 2015)

D. Imputed income.

1. Instead of using the actual or average income of a parent, the court may impute gross income to a parent under the provisions of this section if equitable.

2. The following factors may be considered by the court when making a determination of willful and voluntary underemployment or unemployment:

a. whether a parent has been determined by the court to be willfully or voluntarily underemployed or unemployed, including whether unemployment or underemployment for the purpose of pursuing additional training or education is reasonable in light of the obligation of the parent to support his or her children and, to this end, whether the training or education will ultimately benefit the child in the case immediately under consideration by increasing the parent's level of support for that child in the future,

b. when there is no reliable evidence of income,

c. the past and present employment of the parent,

d. the education, training, and ability to work of the parent,

e. the lifestyle of the parent, including ownership of valuable assets and resources, whether in the name of the parent or the current spouse of the parent, that appears inappropriate or unreasonable for the income claimed by the parent,

f. the role of the parent as caretaker of a handicapped or seriously ill child of that parent, or any other handicapped or seriously ill relative for whom that parent has assumed the role of caretaker which eliminates or substantially reduces the ability of the parent to work outside the home, and the need of that parent to continue in that role in the future, or

g. any additional factors deemed relevant to the particular circumstances of the case.

Oregon

Or. Rev. Stat. Ann. [section] 25.275(l)(a)-(b) (West 2015)

Criteria for determining amount of child support awards

(1) The Division of Child Support of the Department of Justice shall establish by rule a formula for determining child support awards in any judicial or administrative proceeding. In establishing the formula, the division shall take into consideration the following criteria:

(a) All earnings, income and resources of each parent, including real and personal property;

(b) The earnings history and potential of each parent;

Or. Admin. R. 137-050-0715

(1) "Income" means the actual or potential gross income of a parent as determined in this rule. Actual and potential income may be combined when a parent has actual income and is unemployed or employed at less than the parent's potential.

...

(3) "Potential income" means the parent's ability to earn based on relevant work history, including hours typically worked by or available to the parent, occupational qualifications, education, physical and mental health, employment potential in light of prevailing job opportunities and earnings levels in the community, and any other relevant factors. A determination of potential income includes potential income from any source described in section 4 of this rule.

...

(6) If a parent's actual income is less than the parent's potential income, the court, administrator, or administrative law judge may impute potential income to the parent.

(7) If insufficient information about the parent's income history is available to make a determination of actual or potential income, the parent's income is the amount the parent could earn working full-time at the minimum wage in the state in which the parent resides.

(8) Potential income may not be imputed to:

(a) A parent unable to work full-time due to a verified disability;

(b) A parent receiving workers' compensation benefits;

(c) An incarcerated obligor as defined in OAR 137-055-3300; or

(d) A parent whose order is being temporarily modified under ORS 416.425(13).

Pennsylvania

Pa. R. Civ. P. 1910.16-2

Support Guidelines. Calculation of Net Income

(d) Reduced or Fluctuating Income.

(1) Voluntary Reduction of Income. When either party voluntarily assumes a lower paying job, quits a job, leaves employment, changes occupations or changes employment status to pursue an education, or is fired for cause, there generally will be no effect on the support obligation.

(2) Involuntary Reduction of, and Fluctuations in, Income. No adjustments in support payments will be made for normal fluctuations in earnings. However, appropriate adjustments will be made for substantial continuing involuntary decreases in income, including but not limited to the result of illness, lay-off, termination, job elimination or some other employment situation over which the party has no control unless the trier of fact finds that such a reduction in income was willfully undertaken in an attempt to avoid or reduce the support obligation.

(3) Seasonal Employees. Support orders for seasonal employees, such as construction workers, shall ordinarily be based upon a yearly average.

(4) Earning Capacity. If the trier of fact determines that a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that party an income equal to the party's earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record. Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full-time position. Determination of what constitutes a reasonable work regimen depends upon all relevant circumstances including the choice of jobs available within a particular occupation, working hours, working conditions and whether a party has exerted substantial good faith efforts to find employment.

Rhode Island

R.I. Gen. Laws 1956 [section] 15-5-16.2(f) (2015)

[section] 15-5-16.2. Child support

(f) In any proceeding to establish support, or in any case in which an obligor owes past due support, for a child or children receiving public assistance pursuant to chapter 5.1 of title 40, the court or its magistrate, upon a finding that an able bodied absent parent obligor is unemployed, underemployed or lacks sufficient income or resources from which to make payment of support equal to the public assistance payment for the child or children, or is unable to pay the arrearages in accordance with a payment plan, may order that parent to perform unpaid community service for at least twenty (20) hours per week through community service placements arranged and supervised by the department of human services or to participate in any work activities that the court deems appropriate. The performance of community service shall not be a basis for retroactive suspension of arrears due and owing.

South Carolina

Child Support Guidelines, http://www.state.sc.us/dss/csed/forms/2006guidelines.pdf [http://perma.ee/R33E-7SWC]

3. DETERMINATION OF CHILD SUPPORT AWARDS

3.1 Income

3.1.1 Definition

The guidelines define income as the actual gross income of the parent, if employed to full capacity, or potential income if unemployed or underemployed.

...

3.1.5 Potential Income

If the court finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income which would otherwise ordinarily be available to the parent. If income is imputed to a custodial parent, the court may also impute reasonable day care expenses. Although Temporary Assistance to Needy Families (TANF) and other means-tested public assistance benefits are not included in gross income, income may be imputed to these recipients. However, the court may take into account the presence of young children or handicapped children who must be cared for by the parent, necessitating the parent's inability to work.

1. The court may also wish to factor in considerations of rehabilitative alimony in order to enable the parent to become employed.

2. In order to impute income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earnings level of the parent based on that parent's recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.

South Dakota

S.D. Codified Laws [section] 25-7-6.4 (2015)

25-7-6.4. Rebuttable presumption of employment at minimum wage Except in cases of physical or mental disability, it is presumed for the purposes of determination of child support that a parent is capable of being employed at the minimum wage, including while incarcerated, and the parent's child support obligation shall be computed at a rate not less than full-time employment at the state minimum wage. Evidence to rebut this presumption may be presented by either parent.

Tennessee

Tenn. Code Ann. [section] 36-5-101(a)(8) (West 2015)

[section] 36-5-101. Orders for support and maintenance; modifications; enforcement (a)(8) When a court having jurisdiction determines child support pursuant to the Tennessee child support guidelines, based on either the actual income or the court's findings of an obligor's ability to earn income, the final child support order shall create an inference in any subsequent proceeding that the obligor has the ability to pay the ordered amount until such time as the obligor files an application with the court to modify the ordered amount.

Texas

Tex. Fam. Code Ann. [section] 154.066(a)-(b) (West 2015)

(a) If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor.

(b) In determining whether an obligor is intentionally unemployed or underemployed, the court may consider evidence that the obligor is a veteran, as defined by 38 U.S.C. Section 101(2), who is seeking or has been awarded:

(1) United States Department of Veterans Affairs disability benefits, as defined by 38 U.S.C. Section 101(16); or

(2) non-service-connected disability pension benefits, as defined by 38 U.S.C. Section 101(17).

Utah

Utah Code Ann. [section] 78B-12-203(6)-(7) (West 2012)

[section] 78B-12-203. Determination of gross income--Imputed income

(6) Gross income includes income imputed to the parent under Subsection (7).

(7) (a) Income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held and the judge in a judicial proceeding or the presiding officer in an administrative proceeding enters findings of fact as to the evidentiary basis for the imputation.

(b) If income is imputed to a parent, the income shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics.

(c) If a parent has no recent work history or a parent's occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week. To impute a greater income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.

(d) Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:

(i) the reasonable costs of child care for the parents' minor children approach or equal the amount of income the custodial parent can earn;

(ii) a parent is physically or mentally unable to earn minimum wage;

(iii) a parent is engaged in career or occupational training to establish basic job skills; or

(iv) unusual emotional or physical needs of a child require the custodial parent's presence in the home.

Vermont

Vt. Stat. Ann. tit. 15 [section] 653(5)(A) (West 2015)

[section] 653. Definitions

5) "Gross income" means actual gross income of a parent.

(A) Gross income shall include:

(iii) the potential income of a parent who is voluntarily unemployed or underemployed, unless:

(I) the parent is physically or mentally incapacitated; or

(II) the parent is attending a vocational or career technical education program related to current employment, or a job training program sponsored by the Department of Labor, the Department of Economic Development, or the Agency of Human Services; or

(III) the unemployment or underemployment of the parent is in the best interest of the child;

Virginia

Va. Code Ann. [section] 20-108.1(B)(3) (West 2015)

[section] 20-108.1. Determination of child or spousal support

B. In any proceeding on the issue of determining child support under this title, Title 16.1, or Title 63.2, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. . . The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:

....

3. Imputed income to a party who is voluntarily unemployed or voluntarily underemployed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party's employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party's earning potential;

Washington

Wash. Rev. Code Ann. 26.19.071(6) (West 2015)

(6) Imputation of income. The court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed. The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent's work history, education, health, and age, or any other relevant factors. A court shall not impute income to a parent who is gainfully employed on a full-time basis, unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent's child support obligation. Income shall not be imputed for an unemployable parent. Income shall not be imputed to a parent to the extent the parent is unemployed or significantly underemployed due to the parent's efforts to comply with court-ordered reunification efforts under chapter 13.34 RCW or under a voluntary placement agreement with an agency supervising the child. In the absence of information to the contrary, a parent's imputed income shall be based on the median income of year-round full-time workers as derived from the United States bureau of census, current populations reports, or such replacement reports as published by the bureau of census.

West Virginia

W. Va. Code Ann. [section] 48-13-804(a)-(b) (West 2015)

[section] 48-13-804. Default orders

(a) In any proceeding in which support is to be established, if a party has been served with proper pleadings and notified of the date, time and place of a hearing before a family court judge and does not enter an appearance or file a response, the family court judge shall prepare a default order for entry establishing the defaulting party's child support obligation consistent with the child support guidelines contained in this article.

(1) When applying the child support guidelines, the court may accept financial information from the other party as accurate, pursuant to rule 13(b) of the Rules of Practice and Procedure for Family Court; or

(2) If financial information is not available, the court may attribute income to the party based upon either:

(i) The party's work history;

(ii) Minimum wage, if appropriate; or

(iii) At a minimum, enter a child support order in a nominal amount unless, in the court's discretion, a zero support order should be entered.

(b) All orders shall provide for automatic withholding from income of the obligor pursuant to part 4, article fourteen of this chapter.

W. Va. Code Ann. [section] 48-l-205(a)-(d) (West 2015)

[section] 48-1-205. Attributed income defined

(a) "Attributed income" means income not actually earned by a parent but which may be attributed to the parent because he or she is unemployed, is not working full time or is working below full earning capacity or has nonperforming or underperforming assets. Income may be attributed to a parent if the court evaluates the parent's earning capacity in the local economy (giving consideration to relevant evidence that pertains to the parent's work history, qualifications, education and physical or mental condition) and determines that the parent is unemployed, is not working full time or is working below full earning capacity. Income may also be attributed to a parent if the court finds that the obligor has nonperforming or underperforming assets.

(b) If an obligor: (1) Voluntarily leaves employment or voluntarily alters his or her pattern of employment so as to be unemployed, underemployed or employed below full earning capacity; (2) is able to work and is available for full-time work for which he or she is fitted by prior training or experience; and (3) is not seeking employment in the manner that a reasonably prudent person in his or her circumstances would do, then an alternative method for the court to determine gross income is to attribute to the person an earning capacity based on his or her previous income. If the obligor's work history, qualifications, education or physical or mental condition cannot be determined, or if there is an inadequate record of the obligor's previous income, the court may, as a minimum, base attributed income on full-time employment (at forty hours per week) at the federal minimum wage in effect at the time the support obligation is established. In order for the court to consider attribution of income, it is not necessary for the court to find that the obligor's termination or alteration of employment was for the purpose of evading a support obligation.

(c) Income shall not be attributed to an obligor who is unemployed or underemployed or is otherwise working below full earning capacity if any of the following conditions exist:

(1) The parent is providing care required by the children to whom both of the parties owe a legal responsibility for support and such children are of preschool age or are handicapped or otherwise in a situation requiring particular care by the parent;

(2) The parent is pursuing a plan of economic self-improvement which will result, within a reasonable time, in an economic benefit to the children to whom the support obligation is owed, including, but not limited to, self-employment or education: Provided, That if the parent is involved in an educational program, the court shall ascertain that the person is making substantial progress toward completion of the program;

(3) The parent is, for valid medical reasons, earning an income in an amount less than previously earned; or

(4) The court makes a written finding that other circumstances exist which would make the attribution of income inequitable: Provided, That in such case the court may decrease the amount of attributed income to an extent required to remove such inequity,

(d) The court may attribute income to a parent's nonperforming or underperforming assets, other than the parent's primary residence. Assets may be considered to be nonperforming or underperforming to the extent that they do not produce income at a rate equivalent to the current six-month certificate of deposit rate or such other rate that the court determines is reasonable.

Wisconsin

Wis. Stat. Ann. [section] 767.511 (West 2015)

767.511. Child support

(lg) Consideration of financial information. In determining child support payments, the court may consider all relevant financial information or other information relevant to the parent's earning capacity, including information reported under s. 49.22(2m) to the department or the county child support agency under s. 59.53(5).

(lj) Percentage standard generally required. Except as provided in sub. (lm), the court shall determine child support payments by using the percentage standard established by the department under s. 49.22(9).

(lm) Deviation from standard; factors. Upon request by a party, the court may modify the amount of child support payments determined under sub. (lj) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties:

(a) The financial resources of the child.

(b) The financial resources of both parents.

(bj) Maintenance received by either party.

(bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under 42 U.S.C [section] 9902(2).

(bz) The needs of any person, other than the child, whom either party is legally obligated to support.

(c) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.

(d) The desirability that the custodian remain in the home as a full-time parent.

(e) The cost of child care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.

(ej) The award of substantial periods of physical placement to both parents.

(em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.41.

(f) The physical, mental, and emotional health needs of the child, including any costs for health insurance as provided for under s. 767.513.

(g) The child's educational needs.

(h) The tax consequences to each party.

(hm) The best interests of the child.

(hs) The earning capacity of each parent, based on each parent's education, training and work experience and the availability of work in or near the parent's community.

(i) Any other factors which the court in each case determines are relevant.

Wis. Admin. Code DCF [section] 150.04

(3) DETERMINING INCOME IMPUTED BASED ON EARNING CAPACITY. In situations where the income of a parent is less than the parent's earning capacity or is unknown, the court may impute income to the parent at an amount that represents the parent's ability to earn, based on the parent's education, training and recent work experience, earnings during previous periods, current physical and mental health, history of child care responsibilities as the parent with primary physical placement, and the availability of work in or near the parent's community. If evidence is presented that due diligence has been exercised to ascertain information on the parent's actual income or ability to earn and that information is unavailable, the court may impute to the parent the income that a person would earn by working 35 hours per week for the higher of the federal minimum hourly wage under 29 USC 206 (a) (1) or the state minimum wage in s. DWD 272.03. If a parent has gross income or income modified for business expenses below his or her earning capacity, the income imputed based on earning capacity shall be the difference between the parent's earning capacity and the parent's gross income or income modified for business expenses.

Wyoming

Wyo. Stat. Ann. [section] 20-2-303(a)(ii) (West 2015)

[section] 20-2-303. Definitions

(a)(ii) Gross income also means potential income of parents who are voluntarily unemployed or underemployed[.]

GAIL HAMMER, Interim Clinic Director and Assistant Professor at Gonzaga University School of Law. Particular thanks to Kim Stankovich, Anne Dietz-LaVoie, Cassie Dietz-LaVoie, Krista Benson, Willow Moline, Kelly Hammer, and Patrick White, for inspiration; to Kelly Malone, David Beyer, and Pam Hartman-Beyer, for legal work on Kim's case; to Kim Hai Pearson, for comments; to Liz Guerra, Jessica Pagoaga Couser, Genna Sue Hibbs, and Jason Schow, for legal research; and especially to Beth Carter, for legal research, inspiration, and humor.

(1) Kim's story is told with her permission. My clinic students and I represented her in appealing the amount of her child support obligation. For an interview with Kim, see Gender Talk: Program 522 (Aug. 6, 2005), http://www.gendertalk.com/real/500/gt522.shtml [http://perma.cc/M7RF-3PU4].

(2) Although Kim's assigned sex at birth was male, her self-identity is female. Out of simple respect for the people behind the pronouns, this Article uses pronouns according to the preference of the persons to whom the pronouns refer.

(3) Black's Law Dictionary (10th ed. 2014) ("A presumption may be defined to be an inference as to the existence of one fact from the existence of some other fact founded upon a previous experience of their connection.") (citing William P. Richardson, The Law of Evidence [section] 53, at 25 (3d ed. 1928) ('"Conclusive presumptions' or 'irrebuttable presumptions' are usually mere fictions, to disguise a rule of substantive law [e.g., the conclusive presumption of malice from an unexcused defamation]; and when they are not fictions, they are usually repudiated by modern courts.")); John H. Wigmore, A Students' Textbook of the Law of Evidence 454 (1935) ("Conclusive presumptions, sometimes called irrebuttable presumptions of law, are really rules of law. Thus it is said that a child under the age of fourteen years is conclusively presumed to be incapable of committing rape. This is only another way of saying that such a child cannot be found guilty of rape."); Richard Eggleston, Evidence, Proof and Probability 92 (1978).

(4) Not all transgender people plan to go through sex reassignment surgery. Pre-operative, post-operative, and non-operative statuses are relevant only to some transgender people. Those statuses have been treated as highly relevant by some courts.

(5) Eve Ensler, The Vagina Monologues (2008).

(6) Eve Ensler, They Beat the Girl Out of My Boy ... Or So They Tried, in The Vagina Monologues, supra note 5, at 141, available at http://umassvagina.wordpress.com/2010/12/30/ they-beat-the-girl-out-of-my-boyor-so-they-triedkelsey-pratto-and-sam-creedintronikki-simpson/ [http://perma.ee/QH2H-995H]. The play The Vagina Monologues includes optional pieces that change from year to year. They Beat the Girl Out of My Boy ... Or So They Tried is one of the optional pieces.

(7) Sex is biological; gender identity is psychological. See Appendix I for a fuller description of the distinction between sex and gender identity.

(8) The term "cisgender" refers to a person whose sex assignment at birth is congruent with her or his gender identity. See Appendix I for further discussion.

(9) This Article uses "spouse" rather than "wife" because using "wife" would give the appearance of a same-sex marriage, when, at the time of the marriage, under the law of any state that had examined the validity of transgender marriage, Kim's marriage would not be considered a same-sex marriage. See Kantaras v. Kantaras, 884 So.2d 155 (Fla. Dist. Ct. App. 2004), where the Florida District Court of Appeal held the nine-year marriage between Michael Kantaras, a transgender man, and his wife, void ab initio; see also Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App. 1999), where the Court of Appeals of Texas found that although Christie, a transgender woman, had a legal name change, a complete sex reassignment, and had married a man in Kentucky with whom she lived until his death, the court concluded, "We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Fler marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse." See also Goodwin v. United Kingdom (No. 28957/95), 2002-VI Eur. Ct. H.R. 3 (considering many restrictions on a post-operative transgender woman's ability to live as a woman). The European Court of Human Rights held that forbidding a transgender woman's marriage to a biological male violated her rights under the European Convention. Id. at 93, 104. The court said, "a test of congruent biological factors can no longer be decisive in denying legal rights" to a post-operative transgender person. Id. at 100. For an interesting discussion of approaches to using international law to analyze same sex marriage, see Anjuli Willis McReynolds, Commentary, What International Experience Can Tell U.S. Courts About Same-Sex Marriage, 53 UCLA L. Rev. 1073, 1073 (2006). McReynolds analyzes doctrinal, empirical, and dialogic approaches to using international materials. Id. at 1102-04.

(10) Washington does not use "custody" and "visitation" but instead uses the concept of a parenting plan, which outlines when the children will spend time with each parent, allocates decision-making authority, and determines how disputes in administering the parenting plan will be resolved. Wash. Rev. Code Ann. [section] 26.09.184 (West 2015).

(11) Wash. Rev. Code Ann. [section] 26.09.090 (West 2015) (providing for spousal maintenance).

(12) Transcript of Record at 45, Stankovich v. Stankovich, No. 04-3-01492-0 (Wash. Super. Ct. Aug. 31, 2005).

(13) Wash. Rev. Code Ann. [section] 26.19.071(6) (West 2015):

(6) Imputation of income. The court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed. The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent's work history, education, health, and age, or any other relevant factors. A court shall not impute income to a parent who is gainfully employed on a full-time basis, unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent's child support obligation. Income shall not be imputed for an unemployable parent. Income shall not be imputed to a parent to the extent the parent is unemployed or significantly underemployed due to the parent's efforts to comply with court-ordered reunification efforts under chapter 13.34 RCW or under a voluntary placement agreement with an agency supervising the child. In the absence of records of a parent's actual earnings, the court shall impute a parent's income in the following order of priority:

(a) Full-time earnings at the current rate of pay;

(b) Full-time earnings at the historical rate of pay based on reliable information, such as employment security department data;

(c) Full-time earnings at a past rate of pay where information is incomplete or sporadic;

(d) Full-time earnings at minimum wage in the jurisdiction where the parent resides if the parent has a recent history of minimum wage earnings, is recently coming off public assistance, aged, blind, or disabled assistance benefits, pregnant women assistance benefits, essential needs and housing support, supplemental security income, or disability, has recently been released from incarceration, or is a high school student;

(e) Median net monthly income of year-round full-time workers as derived from the United States bureau of census, current population reports, or such replacement report as published by the bureau of census.

See Appendix II, infra, for all other states' rules or statutes on imputing income.

(14) Id.

(15) The Superior Court is Washington State's court of general jurisdiction. Wash. Rev. Code Ann. [section] 2.08.010 (West 2015).

(16) A commissioner is a judicial officer with the same duties as a judge. Wash. Rev. Code Ann. [section][section] 2.24.010( 1), 2.24.040 (West 2015). A commissioner's decisions may be subject to revision by a Superior Court judge. Wash. Rev. Code Ann. [section] 2.24.050 (West 2015).

(17) Transcript of Record at 12, Stanovich v. Stankovich, No. 04-3-01492-0 (Wash. Super. Ct. Aug. 6, 2004).

(18) A study of 3,474 transgender people in the United States found that children were generally supportive of their parents who came out as transgender. Genny Beemyn & Susan Rankin, The Lives of Transgender People 11,71 (2011).

(19) Wash. Rev. Code Ann. [section] 2.24.050 governs revision procedure, stating, "Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner... ",

(20) Minutes and Order, Stankovich v. Stankovich, No.04-3-01492-0 (Wash. Super. Ct. Sept. 30, 2004).

(21) Inability to comply with an order is a defense to contempt. See Stablein v. Stablein, 368 P.2d 174, 175 (Wash. 1962).

(22) Minutes, Stankovich v. Stankovich, No. 04-3-01492-0 (Wash. Super. Ct. Apr. 1,2005).

(23) Declaration of Kimberly Stankovich in Response to Motion for Contempt, Stankovich v. Stankovich, No. 04-3-01492-0 (Wash. Super. Ct. Aug. 6, 2004).

(24) These are two true statements, which can lead to a false conclusion, if other important, relevant statements (i.e., that she can no longer perform the work associated with her mechanic skill, and that she is unable to find an employer willing to hire her for any of the jobs that require little to no skills) are omitted.

(25) Transcript of Record at 15, Stankovich v. Stankovich, No. 04-3-01492-0 (Wash. Super. Ct. July 1, 2005).

(26) "How is what your client did any different from deciding that she wants to be a punk rocker and she has her hair spiked and died purple and has body piercings and dresses in godly black and tries to get a job and is turned down?" Id. at 8.

(27) See Wash. Rev. Code Ann. [section] 46.20.205 (West 2015) (procedure for changing one's name). See also Wash. Admin. Code [section] 308-104-014 (West 2015) (procedure for applications for driver's licenses).

(28) The Prison Rape Elimination Act, 42 U.S.C. [section][section] 15601-15609 (2003), was passed unanimously by Congress in 2003, with final enabling regulations enacted in 2012 at 28 C.F.R. Part 115. The enabling regulations provide that decisions about where a transgender person may be housed must be dealt with on a case-bycase basis, 28 C.F.R. [section] 115.42(c) (2012), with the prisoner's expressed safety concerns taken into account. 28 C.F.R. [section] 115.42(e) (2012). The standards require assessing all available alternatives before placing transgender prisoners involuntarily into "protective custody" (which can be a form of torture). 28 C.F.R. [section] 115.43(a) (2012). See Nat'l Ctr. for Transgender Equal., LGBT People and the Prison Rape Elimination Act (2012), http://transequality.org/sites/default/files/docs/resources/PREA_July2012.pdf [http://perma.cc/WX2G-NUFL].

(29) The group's name came from founder Anne Dietz-LaVoie's desire to stop the clock that counts out how often a woman or girl is raped in the United States. Various conversations between Anne Dietz-LaVoie and the author in Spokane, Wash. (Feb. 2005).

(30) Transgender people often use hormonal therapy to induce or maintain the physical and psychological characteristics of the sex that matches the person's gender identity. Univ. of Cal., San Francisco, Dep't of Family & Community Medicine, Primary Care Protocol for Transgender Patient Care, Ctr. of Excellence for Transoender Health (2011), http://transhealth.ucsf.edu/trans?page=protocol-hormones [http://perma.ee/A832-23RM]. Hormonal therapy for male to female transgender people may include anti-androgen therapy, which blocks testosterone, estrogen therapy, and progesterone. Id.

(31) This number is low only due to the generosity of Kelly Malone of the Maxey Law Firm. Ms. Malone responded to multiple motions, which each required responsive declarations (the equivalent of affidavits under Wash. Rev. Code Ann. [section] 9A.72.085) (West 2015)) and made multiple court appearances, including arguing at seven separate contested motion hearings, before the case even got to trial.

(32) Transcript of Record at 99, Stankovich v. Stankovich, No. 04-3-01492-0 (Wash. Super. Ct. Aug. 31, 2005).

(33) Id. at 100.

(34) Wash. Rev. Code Ann. [section] 26.19.065 (West 2015) limits the amount of child support a parent must pay to no more than 45% of actual income, with an exception for good cause, which includes substantial wealth, day care expenses, special medical need, educational need, psychological need, and larger families.

(35) When Kim's case went to trial, the version of Wash. Rev. Code [section] 26.19 in effect, at 183-84, http://leg.wa.gov/CodeReviser/RCWArchive/Documents/2005/Final05SuppBody.pdf [http://perma.cc/HSU7 H3QF], authorized administrative creation of the child support guidelines. Wash. Admin. Code [section] 388-14A 3400 (2005) at 210, http://leg.wa.gov/CodeReviser/WACArchive/Documents/2005/WAC388.pdf [http:// perma.ee/Y3VL-A6RX], provided that, unless there are special circumstances, the monthly support amount cannot reduce a parent's income below the need standard for one person, as defined in Wash. Admin. Code [section] 388-478-0015 (2005) at 909, http://leg.wa.gov/CodeReviser/WACArchive/Documents/2005/WAC388.pdf [http://perma.cc/Y3VL-A6RX]. At that time, the need standard for one person was SI,021.

(36) Wash. Rev. Code Ann. [section] 26.19.075 (West 2015) permits deviations from the presumptive child support amount for specified reasons.

(37) Wash. Rev. Code Ann. [section] 26.19.035 (West 2015) provides that worksheets must be used to calculate child support obligations.

(38) For a discussion of hiding status, see generally Kenji Yoshino, Covering, 111 Yale L.J. 769, 772 (2002) (identifying three demands on members of low-status groups: 1) conversion, or altering one's identity; 2) passing, or hiding one's identity and pretending that one's identity is different; and 3) covering, or not flaunting one's identity).

(39) Incarceration presents complicated issues, such as how transgender individuals should be housed and whether they should be permitted to continue hormone treatment. See, e.g., Praylor v. Tex. Dep't of Criminal Just., 430 F.3d 1208, 1209 (5th Cir. 2005) (holding that a transgender inmate had no Eighth Amendment right to hormone therapy and that the prison's refusal to provide hormone therapy did not constitute deliberate indifference to a serious medical need, because the inmate had been evaluated and "did not qualify" for hormone treatment); White v. Farrier, 849 F.2d 322,325,328 (8th Cir. 1988) (determining that "transsexualism is a serious medical need" but reversing the district court's grant of summary judgment in favor of the prisoner, stating, "[H]ere there is a question whether White is a transsexual and whether treatment is required."); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) ("We therefore conclude that plaintiff has stated a valid claim under the Eighth Amendment which, if proven, would entitle her to some kind of medical treatment. It is important to emphasize, however, that she does not have a right to any particular type of treatment, such as estrogen therapy which appears to be the focus of her complaint."); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (refusing to recognize a constitutional right under the Eighth Amendment to estrogen therapy provided that some other treatment option is made available).

(40) In January of 2006, S.H.B. No. 2661 was signed into law, amending the law against discrimination to include sexual orientation, and defining sexual orientation to include "gender expression or identity." S.H.B. 2661,59th Leg., Reg. Sess. (Wash. 2006), Wash. Rev. Code Ann. [section] 49.60.030 (West 2015). As of June 7, 2006, it is illegal in Washington State to discriminate in employment, housing, public accommodations, credit and lending, and insurance, based on race, color, national origin, creed, sex, sexual orientation, disability, familial status, marital status, and age. All employers with eight or more employees, except tribes and religious nonprofit institutions, are covered by the law. See Wash. Rev. Code Ann. [section] 49.60.040 (West 2015).

(41) California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont, and Washington. See Non-Discrimination Laws: State By State, ACLU, https://www.aclu.org/map/ non-discrimination-laws-statestate-information-map [https://perma.cc/GG7V-F7ZH] (last visited June 11, 2015).

(42) See Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity, HRC, http://www.hrc.org/resources/entry/cities-and-counties-with-non-discrimination-ordinances-that-include-gender [http://perma.cc/CAA9-FDWE] (showing 225 cities and counties as of January 28, 2015).

(43) I base this conclusion on twenty-seven years of practicing family law in four different states, during which I have been astonished to hear judges use precisely this type of reasoning: if the law says something is true, then it is true. In other words, if the law says discrimination is illegal, then either it does not happen or else there are other means to address it and it is not the judge's concern.

(44) Kevin Graman, Controversy follows transgendered father, Spokesman-Review (Aug. 5, 2005), http://www.spokesman.com/stories/2005/aug/05/controversy-follows-transgendered-father [http://perma.ee/ JT52-HGQT],

(45) See Leticia Nieto & Margot F. Boyer, Understanding Oppression: Strategies in Addressing Power and Privilege, Colors Nw. Mao., Mar. 2006, at 30, available at http://beyondinclusionbeyondempowerment.com/ about-the-book [http://perma.ee/7DHZ-QNFTN]. See also Leticia Nieto et al., Beyond Inclusion, Beyond Empowerment: A Developmental Strategy to Liberate Everyone (2010). In her workshops, Ms. Nieto sometimes makes the point that race is an artificial construct, but it has very real effects. Oppression can result from paying too much attention to either part of this paradox. Id. See also Yoshino, supra note 38, at 781.

(46) See, e.g., McGee v. McGee, 262 S.W.3d 622, 626 (Ark. Ct. App. 2007) (citing Akins v. Mofield, 132 S.W.3d 760, 767 (Ark. 2003)); Hartman v. Stassis, 504 N.W.2d 129, 134 (Iowa Ct. App. 1993) (citing In re Marriage of Carney, 206 N.W.2d 107, 112 (Iowa 1973)).

(47) See generally 59 Am. Jur. 2d Parent and Child [section] 45 (2015).

(48) For example, in Washington the following remedies may be used to enforce the payment of child support: contempt of court, execution, garnishment, ne exeat, receivership, appointment of a commissioner, injunction, obtaining a specific judgment or lien, recourse to statutory proceedings, action on contract or for specific performance, wage assignments, and the use of a lis pendens. See Kenneth W. Weber et al., 20 Wash. Prac. Fam. & Cmty. Prop. L. [section] 36.7 (2014). Wash. Rev. Code Ann. [section] 74.20A.324 allows suspending a license for a parent who is not in compliance with a child support order. Federal law permits state child support agencies to intercept federal tax returns for child support debt. Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, [section] 2331, 95 Stat. 357. The Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, [section] 3720C, 110 Stat. 1321, contains important provisions for collecting past-due child support obligations, which were further strengthened by an Executive Order directing the Secretary of Treasury, in consultation with the Secretary of Health and Human Services, to develop and implement procedures necessary to collect child support debts by administrative offset. Supporting Families: Collecting Delinquent Child Support Obligations, Exec. Order No. 13019, 61 Fed. Reg. 51,763 (Sept. 28, 1996). Federal law provides for passports to be denied, revoked, or limited if a parent owes more than $5,000 in child support. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, [section] 370, 110 Stat. 2105.

(49) When I worked for the Montana Child Support Enforcement Division, we termed large child support debt that we knew a parent would never be able to pay "mirage debt." We adopted a policy of reducing mirage debt to a more realistic amount, because research and our experience showed that a parent with a realistic child support obligation was much more likely to actually pay at least some child support. If the obligation was set too high, parents were more likely to pay nothing at all, even if they could afford to pay some.

(50) Interview with Kim Stankovich in Spokane, Wash. (Oct. 2005).

(51) In re Marriage of Stankovich, No. 24647-7-III, 2007 WL 241794 (Wash. Ct. App. Jan. 30, 2007), rev. denied, 175 P.3d 1094 (Wash. 2008).

(52) 175 P.3d at 1094.

(53) A fuller conversation would include Kim and the children.

(54) John Bowlby, Maternal Care and Mental Health 84 (1951), available at http://apps.who.int/ iris/bitstream/10665/40724/2/WHO_MONO_2_%28part2%29.pdf?ua=l [http://perma.cc/DDJ2-REP5] (summarizing multiple studies in different countries on the adverse effects on children of maternal deprivation). Part 1 of the monograph is available at http://apps.who.int/iris/bitstream/10665/40724/l/WHO_ MONO_2_%28part 1 %29.pdf?ua= 1 [http://perma.cc/B94Y-5DWP].

(55) See Elizabeth M. Glazer & Zachary A. Kramer, Trans Fat (Feb. 3,2009) (unpublished manuscript) (on file with Hofstra University Maurice A. Deane School of Law and Penn State University Dickson School of Law), available at http://papers.ssm.com/sol3/papers.cfm?abstract_id= 1337129 [http://perma.cc/72BB-576M]. The authors extend an analysis of fat discrimination to transgender discrimination, arguing, among other things, that fat and transgender employees should not have to negotiate their identities to win anti-discrimination lawsuits.

(56) Transgender status is explicitly not covered under the Americans with Disabilities Act. Section 512 provides:

   Definitions: (a) Homosexuality and Bisexuality. For purposes of the
   definition of "disability" in section 3(2), homosexuality and
   bisexuality are not impairments and as such are not disabilities
   under this Act. (b) certain conditions. Under this Act, the term
   "disability" shall not include--(1) transvestism, transsexualism,
   pedophilia, exhibitionism, voyeurism, gender-identity disorders not
   resulting from physical impairments, or other sexual behaviour
   disorder.


Americans with Disabilities Act of 1990 [section] 511, 42 U.S.C. [section][section] 12207-12211 (2005) (renumbered [section] 512, 42 U.S.C. [section] 12211, as of Sept. 25, 2008). A common element for homosexuality, bisexuality, and transsexualism is that they all "violate the heteronormative ideal." Fedwa Malti-Douglas, Legal Cross-Dressing: Sexuality and the Americans with Disabilities Act, 15 Colum. J. Gender & L. 114, 121 (2006).

   The specter that haunts the ADA is a collapsing of categories and a
   swirl of marginalities. Struggling with the issue of mainstreaming
   different forms of marginality (and with the changes in our
   relations to our bodies and reproduction offered by modern
   medicine), we are unsure of our ability to keep each thing in its
   proper place.... Transvestism is the perfect emblem of the
   paradigmatic anxiety. A person of one category is clothed in the
   garment of the other. One social category masquerades as another.
   This creates something even more threatening than marginality:
   ambiguity.


Id. at 136-37 (citing Claude Levi-Strauss, The Savage Mind 10 (1966) (taking objects out of their place threatens the entire order of the universe)). See Zach Strassburger, Note, Disability Law and the Disability Rights Movement for Transpeople, 24 Yale J.L. & Feminism 337 (2012) for an analysis of the limitations and possible uses of disability law for anti-discrimination protection. See also S. Elizabeth Malloy, What Best to Protect Transsexuals From Discrimination: Using Current Legislation of Adopting a New Judicial Framework, 32 Women's Rts. L. Rep. 283, 315-16 (2011), for a discussion of the tension between disability law and discrimination law.

(57) See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). The United States Supreme Court found that a Texas school finance system was constitutional because "residence in districts that happen to have less taxable wealth than other districts" did not create a suspect class. Id. at 28. The court also rejected the idea that education was "a fundamental right or liberty." Id. at 37.

(58) See Kate Lorenz, Do Pretty People Earn More? Research, Reality Can be at Odds Over the Ugly Truth, CNN (July 11, 2005, 1:06 PM), http://www.cnn.com/2005AJS/Careers/07/08/looks/ [http://perma.ee/PAP4L35B] ("The ugly truth, according to economics professors Daniel Hamermesh of the University of Texas and Jeff Biddle of Michigan State University, is that plain people earn 5 percent to 10 percent less than people of average looks, who in turn earn 3 percent to 8 percent less than those deemed good-looking.").

(59) Marilyn Watkins, Washington's Working Women 2010: Progress Stalled without New Workplace Policies, Economic Opportunity Inst. (Apr. 2010), http://www.eoionline.org/wp/wp-content/uploads/state-economy/ Washington WorkingWomen-May2010.pdf [http://perma.cc/C5FP-GNJW].

(60) Joseph L. Heller, Catch-22 46 (1961):

   There was only one catch and that was Catch-22, which specified
   that a concern for one's safety in the face of dangers that were
   real and immediate was the process of a rational mind. Orr was
   crazy and could be grounded. All he had to do was ask; and as soon
   as he did, he would no longer be crazy and would have to fly more
   missions. Orr would be crazy to fly more missions and sane if he
   didn't, but if he was sane he had to fly them. If he flew them he
   was crazy and didn't have to; but if he didn't want to he was sane
   and had to. Yossarian was moved very deeply by the absolute
   simplicity of this clause of Catch-22 and let out a respectful
   whistle.

   "That's some catch, that Catch-22," he observed.

   "It's the best there is," Doc Daneeka agreed.


In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), the United States Supreme Court condemned the double bind Ann Hopkins was in--she could not be a partner unless she was aggressive and masculine, and she could not be a partner because she was not feminine enough.

(61) See generally Martha A. Fineman, The Public and Private Faces of Family Law: Article: Progress and Progression in Family Law, 2004 U. Chi. Legal F. 1.

   My point is that the pressures generated by uncontrolled market
   institutions are at least as relevant to the health and well-being
   of children and families as are uncontrolled mothers and fathers.
   The irresponsibility of the state in not regulating or mediating
   the excesses of market activities is at least as devastating to a
   child as the irresponsibility of any unwed or divorced parent. We
   must count the costs to the family and its children of increased
   income disparity, wage stagnation for middle- and lower-income wage
   earners, and persistent impoverishment for too many of our nation's
   families.


Id. at 19. "Perhaps the real danger to civic society is the runaway nature of contemporary American capitalism and the inequities it has generated." Id. at 24.

(62) The federal minimum wage in 2005 was $5.15 per hour. History of Changes to the Minimum Wage Law, U.S. Dep't of Labor, http://www.dol.gov/whd/minwage/coverage.htm [http://perma.cc/AG44-XV3X] (last visited Apr. 24, 2015).

(63) See id.

(64) Using the inflation calculator found on the website of the U.S. Bureau of Labor Statistics, $100 in 1997 had the same buying power as $ 125.61 in 2006. The website explains the calculator as follows:

   The CPI inflation calculator uses the average Consumer Price Index
   for a given calendar year. This data represents changes in prices
   of all goods and services purchased for consumption by urban
   households. This index value has been calculated every year since
   1913. For the current year, the latest monthly index value is used.


CPI Inflation Calculator, U.S. Bureau of Labor Statistics, http://www.bls.gov/data/inflation_calculator. htm [http://perma.cc/LYR3-LZAQ] (last visited Apr. 27, 2015). Proposed Senate Amendment 4322, which would have raised the federal minimum wage, was withdrawn pursuant to an order of June 20, 2006. See Congress.gov, https://www.congress.gov/amendment/109th-congress/senate-amendment/4322 [https:// perma.cc/87LC-YGNX] (last visited Apr. 25, 2015). Since July 24, 2009, the federal minimum wage has been $7.25 per hour. See History of Changes to the Minimum Wage Law, U.S. Dep't of Labor, supra note 62. However, gasoline, for example, has doubled in cost. According to the U.S. Bureau of Labor Statistics, a gallon of unleaded gasoline in January of 2009 cost $1,787, compared to $3,277 per gallon in December 2013. See Consumer Price Index-Average Price Data: Gasoline, unleaded regular, per gallon/3.785 liters, U.S. Bureau of Labor Statistics, http://data.bls.gov/timeseries/APU000074714 [http://perma.cc/RJJ6-76QE] (last visited Apr. 27, 2015). As of January 2015, Washington State's minimum wage was $9.47 per hour. See History of Washington Minimum Wage, Wash. State Dep't of Labor & Indus., http://www.lni.wa.gov/WorkplaceRights/ Wages/Minimum/History/default.asp [http://perma.cc/D8Z8-FU7H] (last visited Apr. 25, 2015); Minimum Wage Laws in the States - January 1, 2015, U.S. Dep't of Labor, http://www.dol.gov/whd/minwage/america. htm [http://perma.cc/2FS7-PEN2] (last visited Mar. 31, 2014).

(65) History of Washington Minimum Wage, Wash. State Dep't of Labor & Indus., supra note 64.

(66) Figure reached by multiplying $7.35 by 40 hours per week and 4.3 weeks per month.

(67) This amount of net income derives from deducting $126.00 for income taxes and $96.71 for FICA. See Internal Revenue Service 2006 Tax Table, Internal Revenue Serv., http://www.irs.gov/pub/irsprior/i 1040tt-2005.pdf [http://perma.cc/NFW9-PBJB]; 2005 Social Security Changes, Social Security, http://www.socialsecurity.gov/cola/colafacts2005.htm [http://perma.cc/7LK9-75LR].

(68) Wash. Admin. Code [section] 388-478-0015 (2015); Wash. Rev. Code Ann. [section] 74.04.770 (West 2015).

(69) Wash. Rev. Code Ann. [section] 26.19.065 (2) (West 2015); Wash. Admin. Code [section] 388,l4A-3400(b) (2015).

(70) Diana M. Pierce, The Self-Sufficiency Standard For Washington State 1 (2007), http://www.wowonline.org/ourprograms/fess/state-resources/documents/WASSSfullreport6-29-07.pdf [http://perma.cc/4T58-CVFC].

(71) Telephone conversation with Kim Stankovich (Mar. 4, 2014); Conversation with Kim Stankovich in Spokane, Wash. (Apr. 5, 2014).

(72) Kelly is now my adopted son, and a source of great joy and inspiration.

(73) See generally Gerald F. FIess & Steven Friedland, Techniques for Teaching Law 5-7 (1999) (discussing William Perry's schema of intellectual and ethical development and its implications for legal education).

(74) Perry's schema includes four categories of development: Dualism (students see the world as a set of absolutes of right/wrong, good/bad, true/false), Multiplicity (students confront disagreements and uncertainty and come to acknowledge three categories of knowledge: right, wrong, unknown), Contextual Relativism (students begin to recognize themselves as legitimate sources of knowledge/truth), and Commitment in Relativism (students accept complexity, think analytically, and make informed decisions for which they take responsibility). Id.

(75) Nothing inherent in a name makes it male or female--we have arbitrarily assigned some names to both male and female (e.g., Lee, Chris, Shawn, Kelly, Gail, Pat) and some to only one (e.g., Rachel, Mary, John, Tiffany, Joshua). The assignments can change (e.g., Shirley, Leslie).

(76) See, e.g., Abigail W. Lloyd, Defining the Human: Are Transgendered People Strangers to the Law?, 20 Berkeley J. Gender L. & Just. 150, 160-71 (2005); Jason Allen, A Quest for Acceptance: The Real ID Act and the Need for Comprehensive Gender Recognition Legislation in the United States, 14 Mich. J. Gender & L. 169, 178-80 (2008) (discussing cases that invalidated marriages by transgender persons, effectively disinheriting some individuals or denying benefits to others, despite informed spouses and stable relationships of substantial duration).

(77) See Scott O. Lilienfield & Hal Arkowitz, Are Men the More Belligerent Sex?, Sci. Am. (Apr. 1, 2010), http://www.scientificamerican.com/article.cfm?id=are-men-the-more-belligerent-sex [http://perma.cc/74T2 SM96],

   In the U.S., the rate of violent crime for girls and women aged 10
   and older is one in 56; the corresponding figure among their male
   counterparts is one in nine. Men commit close to 90 percent of the
   murders in the U.S. and more murders than women in all the
   countries researchers have examined, according to a 1999 report by
   psychologist Anne Campbell of Durham University in England.


Id.

(78) Allen, supra note 76, at 178-80.

(79) See, e.g., Shannon H. Tan, Note, When Steve is Fired for Becoming Susan: Why Courts and Legislators Need to Protect Transgender Employeesfrom Discrimination, 37 Stetson L. Rev. 579,583 (2008) ("Transgender people face discrimination in many areas other than employment ... [and] are often the victims of brutal hate crimes."). See also Jack Harrison-Quintana et al., Injustice at Every Turn: A look at multiracial respondents in the National Transgender Discrimination Survey, Nat'l Ctr. for Transgender Equality & Nat'l Gay and Lesbian Task Force (Nov. 2013), http://www.nwnetwork.org/wp-content/uploads/2014/02/ntds_multiracial_ respondents.pdf [http://perma.cc/99S2-B9A3].

(80) See Lisa Mottet & John M. Ohle, Transitioning Our Shelters: A Guide to Making Homeless Shelters Safe for Transgender People, Nat'l Coalition for the Homeless & Nat'l Gay & Lesbian Task Force Pol'y Inst. 3-4 (2003), http://srlp.org/wp-content/uploads/2012/08/TransitioningOurShelters.pdf [http://perma.cc/ WC4-24YN]:

   Transgender people are disproportionately represented in the
   homeless population because of the frequent discrimination they
   face at home, in school, and on the job. It is not uncommon for
   transgender youth to be harassed out of school and left unable to
   acquire a job because of a lack of education.... Many times,
   transgender people lose their jobs when their employers learn of
   their transgender status. Moreover, it is often very difficult to
   find employment as an openly transgender person (and it can be
   incredibly hard to conceal one's transgender status from a
   potential employer). Studies have verified that transgender people
   face severe discrimination in everyday life, increasing their need
   for shelter services.... As studies show, there are many reasons
   why transgender people have a greater need for shelter and other
   social services. These factors interact with one another, and the
   cumulative effect can be staggering. The factors transgender people
   may be dealing with include: Poverty due to discrimination in
   employment and chronic under-employment....


See also Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, Nat'l Ctr. for Transgender Equal. & Nat'l Gay & Lesbian Task Force 3 (2011), http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf [http://perma.cc/LD428UQR],

   Survey respondents experienced unemployment at twice the rate of
   the general population, with rates for people of color up to four
   times the national unemployment rate.... Forty-seven percent (47%)
   said they had experienced an adverse job outcome, such as being
   fired, not hired or denied a promotion because of being
   transgender/gender non-conforming. Over one-quarter (26%) reported
   that they had lost a job due to being transgender or gender
   non-conforming.


Id. A needs assessment survey of transgender people conducted in Washington, D.C. from September 1998 to May 2000 revealed that forty-two percent were unemployed, and another thirty-one percent had income below $10,000. Jessica M. Xavier, The Washington, DC Transgender Needs Assessment Survey: Executive Summary (2000), http://www.glaa.org/archive/2000/tgneedsassessmentlll2.shtml [http://perma.cc/6MWY -PE9U], Fifteen percent reported losing a job due to discrimination in the workplace. See id.

(81) See generally Darren Lenard Hutchinson, Identity Crisis: "Intersectionality," "Multidimensionality," and the Development of an Adequate Theory of Subordination, 6 Mich. J. Race & L. 285 (2001).

(82) For an interesting discussion of the combined effects of membership in multiple low-status categories, see generally Gowri Ramachandran, Intersectionality as "Catch 22 Why Identity Performance Demands Are Neither Harmless Nor Reasonable, 69 Alb. L. Rev. 299 (2005-2006). See also Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1241 (1991) (where systems of domination converge, intervention strategies based on experiences of those who do not share backgrounds will be of limited help).

(83) Dean Spade, Be Professional!, 33 Harv. J.L. & Gender 71, 76 (2010). Although Professor Spade refers specifically to legal academic culture, the same principle operates in other employment contexts as well.

(84) Nancy J. Knauer, Gender Matters: Making the Case for Trans Inclusion, 6 Pierce L. Rev. 1, 40 (Sept. 2007) ("Although this observation reveals the assignment of gender at birth to be an imperfect science, it continues to privilege the scientific or objective assignment of gender.").

(85) Katie D. Fletcher & Judge Lola Maddox, In re Marriage of Simmons: A Case for Transsexual Marriage Recognition, 37 Loy. U. Chi. L.J. 533, 534 n.7 (2006) ("The law in the United States generally determines sex based on a person's birth-assigned sex."); Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265, 271 (1999) ("An individual's sex is established for legal purposes on a person's birth certificate. The sex designation on the birth certificate is determined by the birth attendant.").

(86) See generally Gregory Dolin, Dorothy E. Roberts, Lina M. Rodriguez & Teresa K. Woodruff, Medical Hope, Legal Pitfalls, Potential Legal Issues in the Emerging Field of Oncofertility, 46 Santa Clara L. Rev. 673, 697-98, 703 (2009) (including discussion of the requirement that parental decision-making for minor children be in the child's best interest, regarding sterilization and oncofertility).

(87) See E. Coleman et al., Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, Version 7, 13 Int'l J. Transgenderism 165-232 (2012), http://www.wpath.org/ uploaded_files/140/files/IJT%20SOC,%20V7.pdf [http://perma.cc/DUF7-UQJR].

(88) This is analogous to the ultimate rejection of Plessy v. Ferguson, 163 U.S. 537, 543 (1896) (creating "separate but equal" doctrine):

   A statute which implies merely a legal distinction between the
   white and colored races--a distinction which is founded in the
   color of the two races, and which must always exist so long as
   white men are distinguished from the other race by color--has no
   tendency to destroy the legal equality of the two races, or
   reestablish a state of involuntary servitude.


In Brown v. Board of Education, 347 U.S. 483, 495 (1955), the U.S. Supreme Court overturned Plessy v. Ferguson and the "separate but equal" doctrine, finding that it had no place in public education. Segregation was a denial of the equal protection of the laws under the Fourteenth Amendment. Separate educational facilities were inherently unequal.

(89) The patterns are familiar in other instances of legally supported discrimination. Perhaps it is true that "[w]hich has been is what will be, [t]hat which is done is what will be done, [a]nd there is nothing new under the sun." Ecclesiastes 1:9 (New King James).

(90) See, e.g., Lloyd, supra note 76, at 160 ("surgically transformed into a donkey") (quoting Ashlie v. Chester-Upland Sch. Dist., No. 78-4037, 1979 U.S. Dist. LEXIS 12516, at *1 (E.D. Pa. May 9, 1979)).

(91) See, e.g., Ulane v. E. Airlines Inc., 742 F.2d 1081, 1085, 1087 (7th Cir. 1984) (Title VII does not outlaw discrimination against an individual with a "sexual identity disorder," "even if one believes that a woman can be so easily created from what remains of a man").

(92) See, e.g., Lloyd, supra note 76, at 159-60.

(93) Lloyd, supra note 76, at 152.

(94) See Lloyd, supra note 76, at 160-71 (giving examples: "It might just as easily be argued that the right of privacy protects a person's decision to be surgically transformed into a donkey"); Ulane, 742 F.2d at 1083 n.6 ("These individuals conclude that post-operative male-to-female transsexuals do in fact qualify as females and are not merely 'facsimiles.'") (quoting testimony of Dr. Richard Green, expert witness for plaintiff, Trial Transcript for Sept. 27, 1983, 10:35 AM, at 226, 252); Ashlie, 1979 U.S. Dist. LEXIS 12516, at *14 ("Like the gargoyles of medieval architecture, with their distortion of human and animal figures, Percy wishes to fasten to his male body the female appellation of'Diane Diane.'"); In re Estate of Gardiner, 42 P.3d 120,124 (Kan. 2002); Daly v. Daly, 715 P.2d 56, 59 (Nev. 1986) ("It was strictly Tim Daly's choice to discard his fatherhood and assume the role of a female who could never be either mother or sister to his daughter."), overruled by In re Termination of Parental Rights as to N.J., 8 P.3d 126 (Nev. 2000) ("Her female anatomy, however, is still all man-made."); In re Petition of Richardson to Change Name, 23 Pa. D. & C.3d 199 (Pa. Com. PI. Sept. 24, 1982).

(95) Doe v. Boeing Co., 846 P.2d 531 (Wash. 1993).

(96) Id. at 536.

(97) Id. at 538. For other examples of courts finding that the case is not about transgender status, but is instead about some other issue, see also Ulane, 742 F.2d at 1085, 1087 (Title VII does not outlaw discrimination against an individual with a "sexual identity disorder", "even if one believes that a woman can be so easily created from what remains of a man"); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 748-49 (8th Cir. 1982) (in which a transgender woman was fired because she had "misrepresented" her gender on her application form, holding that Congress did not intend to bring transsexuals within the protection of Title VII); and Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) (holding that discrimination on the basis of the plaintiff's decision to undergo a sex change is not within the scope of Title VII).

(98) Lloyd, supra note 76, at 153.

(99) See Tan, supra note 79, at 589-92.

(100) Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion).

(101) Kimberly A. Yuracko, Soul of a Woman: The Sex Stereotyping Prohibition at Work, 161 U. Pa. L. Rev. 757, 803 (2013) (arguing that Title VII protections have been extended by reinforcing traditional gender categories).

(102) See, e.g., Broadus v. State Farm Ins. Co., No. 98-4254, 2000 WL 1585257, at *4 (W.D. Mo. Oct. 11, 2000) (distinguishing Price Waterhouse by noting that Price Waterhouse did not concern a transsexual, and "it is unclear ... whether a transsexual is protected from sex discrimination and sexual harassment under Title VII"); James v. Ranch Mart Hardware, Inc., No. 94-2235-KHV, 1994 WL 731517, at *1 (D. Kan. Dec. 23, 1994) ("Even if plaintiff is psychologically female, Congress did not intend 'to ignore anatomical classification and determine a person's sex according to the psychological makeup of that individual'") (quoting Sommers v. Budget Mktg., Inc., 677 F.2d 748, 749 (8th Cir. 1982) (reiterating that Title VII does not prohibit employment discrimination based upon transsexualism)).

(103) Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), was a case brought under the Gender Motivated Violence Act, 42 U.S.C. [section] 13981(d)(1) (1984). That statute has since been ruled unconstitutional. See United States v. Morrison, 529 U.S. 598 (2000).

(104) Schwenk, 204 F.3d at 1202.

(105) Smith v. City of Salem, Ohio, 378 F.3d 566, 572-74 (6th Cir. 2004). See also Glenn v. Brumby, 663 F.3d 1312, 1317 (11 th Cir. 2011), which explained Smith v. City of Salem:

   The Sixth Circuit likewise recognized that discrimination against a
   transgender individual because of his or her gender non-conformity
   is gender stereotyping prohibited by Title VII and the Equal
   Protection Clause. The court concluded that a transsexual
   firefighter could not be suspended because of "his transsexualism
   and its manifestations," because to do so was discrimination
   against him "based on his failure to conform to sex stereotype by
   expressing less masculine, and more feminine mannerisms and
   appearance."


(106) Glenn v. Brumby, 633 F.3d 1312, 1320 (11th Cir. 2011).

(107) Office of Civil Rights, U.S. Dep't of Educ., Questions and Answers on Title IX and Sexual Violence 5 (2014), http://www2.ed.gOv/about/offices/list/ocr/docs/qa-201404-title-ix.pdflhttp://perma.ccAV4XT-8UPM],

(108) See Nat'l Gay & Lesbian Task Force, Jurisdictions with Explicitly Transgender-Inclusive Nondiscrimination Laws (June 2012), http://www.thetaskforce.org/downloads/reports/fact_sheets/all jurisdictions_w_pop_6_12.pdf. [http://perma.ee/K5UJ-L4QF],

(109) Xavier, DC Transgender Needs Assessment Survey, supra note 80.

(110) Gail Hammer & James Celto Vache, A Conversation Between Friends: Adventures in Collaborative Planning and Teaching Ethical Issues in Representation of Children, 75 UMKC L. Rev. 1025, 1036 (2007) (discussing the nature of emotion's role in law and ethics).

(111) Cynthia Grant Bowman et al., Race and Gender in the Law Review, 100 Nw. U. L. Rev. 27, 55 (2006).

(112) See, e.g., William N. Eskridge, Jr. & Nan D. Hunter, Sexuality, Gender, and the Law (1st ed. 1997); William B. Rubenstein, Cases and Materials on Sexual Orientation and the Law (2d ed. 1997).

(113) Bowman et al., supra note 111, at 55.

(114) Charlie King, Two Good Arms, on Two Good Arms (Vaguely Reminiscent Sounds 1992) (referring to Judge Webster Thayer's speaking in the murder trial of Sacco and Vanzetti). For an interesting account of the trial, see Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen (2d ed. 1927).

(115) See generally Sue Bryant and Jean Koh Peters, Five Habits for Cross-Cultural Lawyering, in Race, Culture, Psychology & Law 47 (Kimberly Holt Barrett & William H. George eds., 2005).

(116) Audre Lorde, The Master's Tools Will Never Dismantle the Master's House, in Sister Outsider: Essays and Speeches 110, 110-14(2007).

   Those of us who stand outside the circle of this society's
   definition of acceptable women; those of us who have been forged in
   the crucibles of difference--those of us who are poor, who are
   lesbians, who are Black, who are older--know that survival is not
   an academic skill.... It is learning how to take our differences
   and make them strengths. For the master s tools will never
   dismantle the master s house. They may allow us temporarily to beat
   him at his own game, but they will never enable us to bring about
   genuine change.


Id. at 112 (emphases in original).

(117) See, e.g., Jeffrey Kosbie, (No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech, 19 Wm. & Mary J. Women & L. 187 (2013) (arguing that gender nonconformity is expressive conduct and warrants protection under the First Amendment); Amy D. Ronner, Let's Get the "Trans" and "Sex" Out of It and Free Us All, 16 J. Gender Race & Just. 859, 908 (2013) (citing various sources on therapeutic jurisprudence, and writing a happy ending to the novel Catfish and Mandala by Andrew X. Pham (1st ed. 1999)) ("[T]he law needs to banish or greatly diminish the role of strangers who get to intrude on someone else's self-definition-evolution process."). Ronner's happy ending comes as a judge's response to the question, "[W]hat sex are you?":

   I self-identify as "being" and my spouse self-identifies as "soul."
   I want you to know that I hear your voice and know how important it
   is for you to have judicial validation of your identity--as "man."
   For that reason, I will issue an order proclaiming Minh to be a
   "man." But you, of course, can voluntarily participate in what we
   see as an ongoing, fluid choice. For that reason, my order will be
   without prejudice, just in case you ever want to change the name
   you assign to yourself.


Id. at 916; Courtney Sirwatka, Note, Unlikely Partners: Tort Law as a Tool for Trans Activism, 20 Cardozo J.L. & Gender 111,136-37 (2013) (recommending connecting tort and civil rights law, recognizing sexual integrity as triggering a duty of care, reforming legal tort education, and collaboration between tort reformers and trans activists, while acknowledging that this solution is flawed because it relies on the legal system, which has not been friendly to trans people).

(118) See Dean Spade, Under the Cover of Gay Rights, 37 N.Y.U. Rev. L. & Soc. Change 79, 84-85 (2013); Dean Spade, Methodologies of Trans Resistance, in A Companion to Lesbian, Gay, Bisexual, Transgender, and Queer Studies 237, 243 (George E. Haggerty & Molly McGarry eds., 2007) (referring to the "difficult questions about reforming systems of oppression versus overturning them"); Richael Faithful, Toward the Heart of Justice, 69 Nat'l L. Guild Rev. 239, 243 (2012) ("Often, it is posed this way--is it better to work on the 'inside' or 'outside' of the system? I don't think that this framing is complete.... We are influenced by and exist within powerful institutions, even if we are actively resisting their forces.").

(119) Faithful, supra note 118, at 243.

(120) 42 U.S.C.A. [section] 602(a)(2) (West 2015) requires all states to adopt child support guidelines as a condition of federal funding for Temporary Assistance to Needy Families ("TANF") and child welfare programs. 42 U.S.C.A. [section] 667 (West 2015).

(121) Statutes contain Child Support Guidelines in California (Cal. Fam. Code [section][section] 4050-4076 (West 2015)), Colorado (Colo. Rev. Stat. Ann. [section] 14-10-115 (West 2015)), Connecticut (Conn. Gen. Stat. Ann. [section] 46b-84 (West 2015)), the District of Columbia (D.C. Code [section] 16-916.01 (2015)), Florida (Fla. Stat. Ann. [section] 61.30 (West 2015)), Georgia (Ga. Code Ann. [section] 19-6-15 (West 2015)), Illinois (750 III. Comp. Stat. Ann. 5/505 (West 2015)), Kentucky (Ky. Rev. Stat. Ann. [section] 403.212 (West 2015)), Louisiana (La. Rev. Stat. Ann. [section] 9:315 et seq. (2015)), Maine (Me. Rev. Stat.Ann. tit. 19-a (West 2015)), Maryland (Md. Code Ann., Fam. Law [section] 12-201 et seq. (West 2015)), Massachusetts (Mass. Gen. Laws Ann. Child Support Guidelines (West 2015)), Minnesota (Minn. Stat. Ann. [section] 518A.32 (West 2015)), Mississippi (Miss. Code Ann. [section] 43-19-101 (West 2015)), Nevada (Nev. Rev. Stat. Ann. [section] 125B (West 2015), New Hampshire (N.H. Rev. Stat. Ann. [section] 458-C (2015)), New Mexico (N.M. Stat. Ann. [section] 40-4-11.1 (West 2015)), New York (N.Y. Fam. Ct. Act [section] 413 (McKinney 2015)), Ohio (Ohio Rev. Code Ann. [section] 3119 (West 2015)), Oklahoma (Okla. Stat. Ann. tit. 43, [section] 118B(D) (West 2015)), South Dakota (S.D. Codified Laws [section] 25-7-6.1 et seq. (2015)), Tennessee (Tenn. Code Ann. [section] 36-5-101 (West 2015)), Texas (Tex. Fam. Code Ann. [section] 154 subchapter C (West 2015)), Utah (Utah Code Ann. [section] 78B-12-202 et seq. (2012)), Vermont (Vt. Stat. Ann. tit. 15 [section][section] 653-657 (West 2015)), Virginia (Va. Code Ann. [section] 20-108.1 et seq. (West 2015)), Washington (Wash. Rev. Code Ann. 26.19.001 et seq. (West 2015)), West Virginia (W. Va. Code Ann. [section] 48-13-101 et seq. (West 2015)), and Wyoming (Wyo. Stat. Ann. [section] 20-2-301 et seq. (West 2015)).

(122) Rules of civil procedure contain the Child Support Guidelines in Alaska (Alaska R. Civ. R 90.3), Delaware (Del. Fam. Ct. R. Civ. P. 500-507), and Pennsylvania (Pa. R. Civ. P. 1910.16).

(123) Court administrative rules or rules other than rules of civil procedure contain the Child Support Guidelines in Alabama (Ala. R. Jud. Admin. 32, Child Support Guidelines), Arizona (Ariz. Sup. Ct. Child Support Guidelines (amended by Admin. Order 2011-46(5)(B) (2011)), Hawaii (Haw. Fam. Ct. Mem.: 2010 Hawaii Child Support Guidelines (Aug. I, 2010), http://www.courts.state.hi.us/docs/form/maui/2CE248.pdf [http://perma.cc/3YEE-488W]); Idaho (Idaho. R. Fam. L. P. 126), Indiana (Ind. R. Ct. Child Support Rules and Guidelines (amended 2010), http://www.in.gov/judiciary/rules/child_support/ [http://perma.cc/S5L6FQRF]); Iowa (Iowa Ct. R. 9), Kansas (Kan. Sup. Ct. R. Child Support Guidelines, http://www.kscourts. org/rules-procedures-forms/child-support-guidelines [http://perma.cc/B22P-HYEN]); Michigan (Friend of the Court Bureau, 2013 Michigan Child Support Formula Manual, http://courts.mi.gov/Administration/SCAO/ OfficesPrograms/FOC/Pages/Child-Support-Formula.aspx [http://perma.cc/Z34Y-VMTK]); Missouri (Mo. Sup. Ct. R. 88.01 and Mo. Sup. Ct. R. Civ. Proc. Form 14), Nebraska (Neb. Ct. R. ch. 4, art. 2), New Jersey (N.J. Ct. R. Prac. App. 9), North Carolina (Conf. of Chief District Judges, N.C. Child Support Guidelines, Jan. 1, 2011, http://www.nccourts.org/forms/documents/1226.pdf [http://perma.cc/R38K-RVLF]); and Rhode Island (R.I. Fam. Ct. Code R. 2007-03, http://www.cse.ri.gov/documents/admin_order2007_03.pdf [http://perma.cc/PPP8-8Y3F]).

(124) Administrative regulations contain the Child Support Guidelines in Montana (Mont. Admin R. ch. 37.62 (2015)), North Dakota (N.D. Admin Code 75-02-04.1 (2015)), Oregon (Or. Admin. R. 135.050), South Carolina (S.C. Child Support Guidelines, http://www.state.sc.us/dss/csed/forms/2006guidelines.pdf [http://perma.cc/KFF5-SLY9]), and Wisconsin (Wis. Admin. Code DCF [section] 150).

(125) D.C. Code [section] 16-916.01 (d)( 10).

(126) Rhode Island, instead of imputing income, requires unemployed parents to perform community service. See R.I. Gen. Laws Ann. [section] 15-5-16.2(f) (West 2015).

(127) Each state's provisions related to imputing income to an unemployed parent are set out in Appendix II.

(128) Illinois (750 III. Comp. Stat. Ann. 5/505(a)(5)), Missouri (Mo. Sup. Ct. R. 88.01), Nevada (Nev. Rev. Stat. Ann. [section] 125B.080 (West 2015)), North Dakota (N.D. Admin. Code 75-02-04.1-01 (4)(b) (2015)), Oregon (Or. Rev. Stat. Ann. [section] 25.275 (West 2015)), Tennessee (Tenn. Code Ann. [section] 36-5-101), Wisconsin (Wis. Stat. Ann. [section] 767.5ll(l)(g) (West 2015)), and Wyoming (Wyo. Stat. Ann. [section] 20-2-303 (West 2015)) give broad discretion to the court to consider earning capacity or potential income.

(129) California (Cal. Fam. Code [section] 4058(b)) gives broad discretion to consider earning capacity or potential income consistent with the best interests of the children.

(130) Connecticut (Conn. Gen. Stat. Ann. [section] 46b-84(d), (f)(1) (West (2011)) gives broad discretion to consider earning capacity or potential income as the court considers just.

(131) Maine gives broad discretion to consider earning capacity or potential income if there is sufficient evidence. See Me. Rev. Stat. Ann. tit. 19-A, [section] 2001 (5)(D) (West 2015).

(132) Iowa Ct. R. 9.11(4).

(133) The District of Columbia (D.C. Code [section] 16-916.01 (2015)), and North Carolina (Conf. of Chief District Judges, N.C. Child Support Guidelines 3 (Jan. 1, 2011)) require a finding of the parent's bad faith refusal to work before imputing income.

(134) Ga. Code Ann. [section] 19-6-15 (f)(4)(d) (West 2015).

(135) Alabama (Ala. R. Jud. Admin. [section] 32(B)(5)), Minnesota (Minn. Stat. Ann. [section] 518A.32 (West 2015)), New Mexico (N.M. Stat. Ann. [section] 40-4-11.1 (C)( 1) (West 2015)), South Carolina (Child Support Guidelines 3.1.5 (2006)) permit the court to decline to impute income to parents who are custodians of young children.

(136) Arizona permits the court to decline to impute income to parents who are under eighteen and still in high school. Ariz. Rev. Stat. Ann. [section] 25-320(N) (West 2015).

(137) Ohio (Ohio Rev. Code Ann. [section] 3119.01 (C)(ll)(a)(iii) (West 2015)) and Michigan (2013 Michigan Child Support Formula Manual) permit courts to decline to impute income to parents with mental or physical illness.

(138) Alabama (Ala. R. Jud. Admin. 32(B)(5)), Montana (Mont. Admin. R. 37.62.106(6)(C) (2012)), Oklahoma (Okla. Stat. Ann. tit. 43, [section] 118B(D)(2)(f) (West 2015)), and South Carolina (Child Support Guidelines 3.1.5 (2006)) allow courts to decline to impute income to parents who have children or other dependents with special needs who need the parent's presence in the home.

(139) The District of Columbia (D.C. Code [section] 16-916.01 (2015)) and Arizona (Ariz. Sup. Ct. Child Support Guidelines (amended by Admin. Order 2011-46(5)(B) (2011))) allow courts to decline to impute income to parents who receive means-tested public assistance.

(140) Arizona allows courts to decline to impute income to parents who are engaged in education or training to enhance earning capacity. Ariz. Sup. Ct. Child Support Guidelines, amended by Admin. Order 2011-46(5) (E)(2) (2011).

(141) Texas allows courts to decline to impute income to parents who are veterans who are seeking or have been awarded disability benefits. Tex. Fam. Code Ann. [section] 154.066(b)(1) (West 2015).

(142) Montana allows courts to decline to impute income to parents who are subject to other circumstances which make imputing income inequitable. Mont. Admin R. 37.62.106 (6)(e)(2012).

(143) Alaska (Alaska R. Civ. P. 90.3(a)(4)), Colorado (Colo. Rev. Stat. Ann. [section] 14-10-115 (West 2015)), the District of Columbia ([section] 16-916.01), Florida (Fla. Stat. Ann. [section] 61.30(2)(b) (West 2015)), Kentucky (Ky. Rev. Stat. Ann. [section] 403.212(2)(d) (West 2015)), Louisiana (La. Rev. Stat. Ann. [section] 9:315.11(A) (2015)), Minnesota (Minn. Stat. Ann. [section] 518A.32 (West 2015)), Montana (Mont. Admin R. 37.62.106(6)(b) (2012)), New Flampshire (N.H. Rev. Stat. Ann. [section] 458-C:2(IV)(a) (2015)), North Carolina (Conference of Chief District Judges, N.C. Child Support Guidelines 3 (Jan. 1, 2011)), Oregon (Or. Admin. R. 137-050-0715(8)(a)), South Dakota (S.D. Codified Laws [section] 25-7-6.4 (2015)), Utah (Utah Code Ann. [section] 78B-12-203(7)(d)(2) (West 2015)), and Vermont (Vt. Stat. Ann. tit. 15 [section] 653(5)(A)(iii)(l) (West 2015)) prohibit imputing income to parents who are physically or mentally incapacitated.

(144) Colorado ([section] 14-10-115), Minnesota ([section] 518A.32) (unless the incarceration is for non-payment of child support), and Oregon (Or. Admin. R. 137-050-0715(8)(c)) prohibit imputing income to parents who are incarcerated.

(145) Florida prohibits imputing income to parents who are unemployed as a result of other circumstances beyond their control. [section] 61.30(2)(b).

(146) Hawaii (Haw. Fam. Ct. Memorandum: 2010 Hawai'i Child Support Guidelines (V)(J)(3) (Aug. 1,2010)), Kentucky ([section] 403.212(2)(d)), Louisiana ([section] 9:315.11(A)), North Carolina (Conference of Chief District Judges, North Carolina Child Support Guidelines 3 (Jan. 1, 2011)), Virginia (Va. Code Ann. [section] 20-108.1(B)(3) (West 2015)), and West Virginia (W. Va. Code Ann. [section] 48-1-205(c)(1) (West 2015)) prohibit imputing income to parents who care for young children.

(147) Minnesota prohibits imputing income to parents who receive means-tested public assistance benefits. Minn. Stat. Ann. [section] 518A.32 (West 2015).

(148) Montana (Mont. Admin. R. 37.62.106 (2015)) and Utah (Utah Code Ann. [section] 78B-12-203(7)(d)(i) (West 2015)) prohibit imputing income to parents whose imputed income would be offset in whole or substantial part by daycare costs.

(149) Montana (Mont. Admin. R. 37.62.106) and Utah (Utah Code Ann. [section] 78B-12-203(7)(d)(iv) (West 2015)) prohibit imputing income to parents who care for a dependent with special needs.

(150) Montana prohibits imputing income to parents who have made diligent efforts to find work, to no avail. Mont. Admin R. 37.62.106.

(151) Utah (Utah Code Ann. [section] 78B-12-203(7)(d)(iii) (West 2015)) and Vermont (Vt. Stat. Ann. tit. 15 [section] 653(5)(A)(iii)(II) (West 2014)) prohibit imputing income to parents who are in training related to current employment or to establish basic job skills.

(152) West Virginia prohibits imputing income to parents who are in an educational program which will result within a reasonable time in an economic benefit to the children and are making satisfactory progress. W. Va. Code Ann. [section] 48-1-205(c)(2) (West 2015).

(153) Washington prohibits imputing income to parents who are unemployed because of efforts to comply with court-ordered reunification with a child. Wash. Rev. Code Ann. [section] 26.19.071(6) (West 2015).

(154) Louisiana prohibits imputing income to parents unemployed as a result of Hurricanes Katrina or Rita. La. Rev. Stat. Ann. [section] 9:315.11 (2015).

(155) West Virginia prohibits imputing income to parents who are subject to conditions, which would otherwise make imputing income inequitable. W. Va. Code Ann. [section] 48-1 -205(c)(4) (West 2015).

(156) Vermont prohibits imputing income if the parent's unemployment is in the best interest of the child. Vt. Stat. Ann. tit. 15 [section] 653(5)(A)(iii)(III) (West 2014).

(157) See Ala. R. Jud. Admin. 32 for an example of guidelines directing imputation based on recent work history, education, and occupational qualifications.

(158) Delaware (Del. Fam. Ct. R. Civ. P. 501(c)), Hawai'i (FIaw. Fam. Ct. Memorandum: 2010 Hawai'i Child Support Guidelines (V)(J)(3)), Idaho (Idaho R. Fam. L. P. 126(F)(3)(a)(i)), Indiana (Ind. R. Ct. Child Support Rules and Guidelines 3(A)(3) (2010)), Kansas (Kan. Sup. Ct. R. Child Support Guidelines (II)(F)(l)(b)), Maryland (Md. Code Ann., Fam. Law [section] 12-201(1) (West 2015)), Massachusetts (specifically, "the availability of employment at the attributed income level") (Mass. Gen. Laws Ann., Child Support Guidelines (West 2015)), Michigan (Friend of the Court Bureau, 2013 Mich. Child Support Formula Manual [section] 2.01(G)(2)(e)), Montana (Mont. Admin. R. 37.62.106 (2015)), Nebraska (Neb. Ct. R. [section] 4-204), North Carolina (Conf. of Chief District Judges, N.C. Child Support Guidelines 3), Ohio (Ohio Rev. Code Ann. [section] 3119.01 (West 2015)), Pennsylvania (Pa. R. Civ. P. 1910.16-2(d)(4)), and South Carolina (Child Support Guidelines 3.1.5(2)) allow courts to consider the current job market in setting the amount of income to impute.

(159) Maryland ([section] 12-201(1)), Michigan (Friend of the Court Bureau, 2013 Mich. Child Support Formula Manual [section] 2.01(G)(2)(f)), Montana (Mont. Admin. R. 37.62.106), North Carolina (Conf. of Chief District Judges, N.C. Child Support Guidelines), Ohio ([section] 3119.01), South Carolina (Child Support Guidelines 3.1.5(2)), and Utah (Utah Code Ann. [section] 78B-12-203(7)(b) (West 2015)) allow courts to consider local earnings in setting the amount of income to impute.

(160) Georgia (Ga. Code Ann. [section] 19-6-15 (f)(4)(d) (West 2015)) and Oklahoma (Okla. Stat. Ann. tit. 43, [section] 118B(D)(2)(a) (West 2015)) allow courts to consider whether a parent's involvement in education is reasonable and may ultimately benefit the child in setting the amount of income to impute.

(161) Minnesota allows courts to consider whether a parent's bona fide career change will outweigh the adverse effect on the child in setting the amount of income to impute. Minn. Stat. Ann. [section] 518A.32(3)(2) (West 2015).

(162) Minnesota allows courts to consider whether the unemployment is temporary and will ultimately lead to increased income in setting the amount of income to impute. [section] 518A.32(3)(2).

(163) Michigan (Friend of the Court Bureau, 2013 Mich. Child Support Formula Manual [section] 2.01 (G)(2)(g)) and Pennsylvania (Pa. R. Civ. P. 1910.16-2(d)(4)) allow courts to consider the parent's diligence in seeking employment in setting the amount of income to impute.

(164) Michigan allows courts to consider whether there has been a significant reduction in income since the action was filed in setting the amount of income to impute. Friend of the Court Bureau, 2013 Mich. Child Support Formula Manual [section] 2.01 (G)(2)(k).

(165) Ohio allows courts to consider decreased earning capacity because of a felony conviction in setting the amount of income to impute. Ohio Rev. Code Ann. [section] 3119.01 (West 2015).

(166) Oklahoma allows courts to consider a parent's lifestyle, including ownership of assets, in setting the amount of income to impute. Okla. Stat. Ann. tit. 43, [section] 118B(D)(2)(e) (West 2015).

(167) Virginia allows courts to consider good faith and reasonableness of a parent's employment decisions in setting the amount of income to impute. Va. Code Ann. [section] 20-108.1(B)(3) (West 2015).

(168) Louisiana (La. Rev. Stat. Ann. [section] 9:315.11(A) (2015)), New Jersey (using average earnings of the person's usual or former occupation as reported by the state Department of Labor) (N.J. Ct. R. Prac. App. 9-A (29)), Utah (Utah Code Ann. [section] 78B-12-203(7)(b) (West 2015)), and Washington (Wash. Rev. Code Ann. [section] 26.19.071 (West 2015)) allow courts to consider official government documents such as median income tables in setting the amount of income to impute.

(169) Ohio (Ohio Rev. Code Ann. [section]3119.01) (West 2015)), Oklahoma (Okla. Stat. Ann. tit. 43, [section] 118B(D)(2)(g) (West 2015)), and Washington (Wash. Rev. Code Ann. [section] 26.19.071 (West 2011)) allow courts to consider any other relevant factor in setting the amount of income to impute.

(170) Fed. R. Evid. 701.

(171) For examples of courts invoking the "property owner rule" permitting property owners to testify to the value of their property without expertise beyond knowledge of the property, see Mertz v. Mertz, 858 N.W.2d 292, 299 (N.D. 2015); Reed v. Reed, 339 P.3d 1109, 1119 (Idaho 2014); City of Jacksonville v. Nixon, 442 S.W.3d 906, 911 (Ark. 2014); Briggs v. City of Palmer, 333 P.3d 746, 748 (Alaska 2014); and Worthington City Sch. Bd. ofEduc. v. Franklin Cty. Bd. of Revision, 17 N.E.3d 537, 543-44 (Ohio 2014).

(172) See Susan Etta Keller, Operations of Legal Rhetoric: Examining Transsexual and Judicial Identity, 34 Harv. C.R.- C.L. L. Rev. 329, 354 (1999) (internal quotation marks omitted).

(173) See, e.g., City of Chicago v. Wilson, 389 N.E.2d 522 (111. 1978) (finding a city ordinance prohibiting cross dressing to impermissibly infringe on the constitutional liberty of a man who was preparing for sex reassignment surgery).

(174) Nicholas M. Teich, Transgender 101: A Simple Guide to a Complex Issue 1-2(2012).

(175) See generally Kris Franklin, The "Authoritative Moment": Exploring the Boundaries of Interpretation in the Recognition of Queer Families, 32 Wm. Mitchell L. Rev. 655 (2006). Franklin attempts to map the courts' minds and analyze their thinking, showing that only some strands of thought are conscious; others are reflexive and unexamined. Charting "patterns of the relationship between the precedential, the analogical, and the methodological" reveals "the implicit factual predeterminations built into what look like exclusively procedural and jurisdictional conversations." Id. at 660. When courts examine novel questions with profound cultural implications, their choices of which topics to address are significant. See id. at 672.

(176) See generally Peters and Bryant, supra note 115.

(177) Faithful, supra note 118, at 249.

(178) Flammer & Vache, supra note 110, at 1036.

(179) As noted author Sherman Alexie observed, in commenting on the Museum of Tolerance, "Tolerance. That's aiming low. I tolerate you. Sounds like marriage." Sherman Alexie, Gonzaga University, Spokane, Washington (Jan. 30, 2007) (poetry reading, in which Alexie, a gifted storyteller and public speaker, read one poem, and reflected on various topics. He summed his talk up for the students in the audience, whom he thought might have to write a report about it, as: "There was a war. He said 'fuck.' He almost cried.").

(180) Examples of words whose legal meanings differ from their meanings in ordinary usage are "intent" and "malice."

(181) Hon. Nancy L. Coats, The Power of Words, 29 Okla. City U. L. Rev. 449, 450 (2004).

(182) Lisa Mottet & John M. Ohle, Transitioning Our Shelters: A Guide to Making Homeless Shelters Safe for Transgender People, TheNational Coalition for the Homeless and the National Gay and Lesbian Task Force Policy Institute 11-12 (2003), http://srlp.org/wp-content/uploads/2012/08/TransitioningOurShelters.pdf [http://perma.cc/VVC4-24YN] (emphasis in original).

(183) Id. at 12.

(184) Daniel J. Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 511-12 (2006) (identification documents designating sex lead to difficulties for the social and professional integration of transgender people, paraphrasing Solove's discussion of a case rather than the holding of the case). Solove discusses a case before the European Court of Human Rights, B. v. France, 232 Eur. Ct. H.R. 33 (1992). Id. at 512.

(185) Marvin Dunson III, Comment: Sex, Gender, and Transgender: The Present and Future of Employment Discrimination Law, 22 Berkeley J. Emp. & Lab. L. 465,466 n.5 (2001). Note that the term "transsexual" (also spelled transexual) is considered derogatory by some.

(186) S. Bear Bergman is a writer, theater artist, and a frequent lecturer at colleges and universities regarding issues of gender and sexuality, who has advised numerous institutions on their policies regarding transgender students. For more information, see S. Bear Bergman, http://www.sbearbergman.com [http://perma.cc/X566M38A] (last visited Apr. 13, 2015).

(187) S. Bear Bergman, Clearly Marked, play presented at Spokane Falls Community College, Spokane, Washington (June 7, 2007).

(188) Id.

(189) liana Gelfman, Because of Intersex: Intersexuality, Title VII, and the Reality of Discrimination 'Because of ... [Perceived] Sex,' 34 N.Y.U. Rev. L. & Soc. Change 55, 114 n.237 (2010) ("Cisgender people are those who are born with bodies that conform to expectations of either 'male' or 'female' and who also identify themselves with the 'matching' gender."); see also Douglas M Anderson, et al., Dorland's Illustrated Medical Dictionary (30th ed. 2003) ("Cis" is Latin for "on this side" and is "a prefix denoting on this side, on the same side, on the near side.").

(190) Knauer, supra note 84, at 24 ("Unfortunately, non-trans individuals often fail to see the extent of this commonality because, for us, it is often easy to forget that we are actively gendered. Indeed, this is precisely the problem; for many of us gender is simply a non-issue. It is not a source of daily friction and discomfort.").

(191) Sometimes what makes logical sense is not what makes practical sense. For Title VII jurisprudence, it may not be beneficial to understand the categories discussed in this section as distinct. Pulling the categories apart could lead to an even more constricted and less protective reading of Title VII's protections. The federal courts have interpreted sex in a wide variety of ways, from a narrow view including only anatomical or biological characteristics (e.g., Hamner v. St. Vincent Hosp. & Health Care Ctr., 224 F.3d 701, 704 (7th Cir. 2000) (quoting Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984))) to a reading that includes notions of gender norms and stereotyping (e.g., Nichols v. Azteca Rest. Enter., 256 F.3d 864, 874-75 (9th Cir. 2001) (allowing recovery on sexual harassment claim based on sex role stereotyping)). The Supreme Court appears to use "gender" as a synonym for "sex." See Robert A. Kearney, The Unintended Hostile Environment: Mapping the Limits of Sexual Harassment Law, 25 Berkeley J. Emp. & Lab. L. 87, 100 (2004). Commentators continue to debate the relationship between the concepts of sex and gender in the sexual harassment context. See, e.g., Andrea Meryl Kirshenbaum, "Because of ... Sex": Rethinking the Protections Afforded Under Title VII in the Post-Oncale World, 69 Alb. L. Rev. 139, 156-65, 173-74 (2005); Dunson, supra note 185, at 495.

(192) See, e.g., Sommers v. Budget Mktg., Inc., 667 F.2d 748, 749 (8th Cir. 1982) (stating the plain meaning of the word "sex" is in reference to anatomical and biological facts, which determine whether a person is male or female).

(193) The definition in Merriam-Webster's Medical Dictionary depends on the binary. It defines "sex" as: "the sum of the structural, functional, and behavioral characteristics of living things that are involved in reproduction by two interacting parents and that distinguish males and females." Sex Definition in Merriam Webster's Medical Dictionary, Dictionary.com, http://www.merriam-webster.com/medlineplus/sexes [http://perma.cc/ML9W-QDJQ] (last visited Apr. 27, 2015).

(194) This is the basis for the Texas Court of Appeals' decision in Littleton v. Prange: "Christie was created and born a male.... There are some things we cannot will into being. They just are." Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App. 1999), cert, denied, 531 U.S. 872 (2000).

(195) Medicine has recognized an intersex category, which is more recently referred to as Disorders of Sexual Development ("DSD"). Intersex is an umbrella term for the various biological characteristics that may contribute to incongruent gender assignments. See Intersex Soc'y of N. America, Clinical Guidelines for the Management of Disorders of Sex Development In Childhood 2 (Aug. 2006), http://www.dsdguidelines.org/ files/clinical.pdf [http://perma.cc/J83A-LZQH].

(196) See Terry S. Kogan, Transsexuals, Intersexuals, and Same-Sex Marriage, 18 BYU J. Pub. L. 371, 403 (2004).

(197) See Noa Ben-Asher, The Necessity of Sex Change: A Struggle for Intersex and Transsex Liberties, 29 Harv. J.L. & Gender 51,61 (2006).

(198) See id. (pediatric guidelines for treatment of intersexed infants rely on arguably arbitrary measurements for determining whether an infant has "adequate phallus," e.g., "penile length should measure at least 2 [centimeters]," and reductions should be performed on clitorises "larger than.9 centimeters") (internal quotation marks omitted).

(199) See Fletcher & Maddox, supra note 85, at 562.

(200) See Greenberg, supra note 85, at 278-79.

(201) See Greenberg, supra note 85, at 279 (stating that some individuals are born with both male and female internal sex organs).

(202) Michael L. Rosin, Intersexuality and Universal Marriage, 14 L. & Sexuality 51, 58 (2005).

(203) Greenberg, supra note 85, at 282..

(204) Natalie Brown Michaiek, Note, Littleton v. Prange: How Voiding Transexual Marriage Affects the Fundamental Right of Marriage, 52 Baylor L. Rev. 727, 732 (2000).

(205) See Dana O'Day-Senior, Note, The Forgotten Frontier? Healthcare for Transgender Detainees in Immigration and Customs Enforcement Detention, 60 Hastings L.J. 453, 458 (2008):

   [T]he most common treatment sought by transgender persons is
   hormone replacement therapy (providing male hormones to a
   female-to-male transgender person or providing female hormones to a
   male-to-female transgender person) in order to provide desired
   results in acquired secondary sex characteristics and to help the
   person's physical body to more closely match their psychological
   gender.


(206) Greenberg, supra note 85, at 281 n.84 (internal quotation marks omitted).

(207) See Jennifer M. Protas, Divesting From the Apartheid of the Closet: Toward an Enriched Legal Discourse of Sexual and Gender Identity, 38 McGeorge L. Rev. 571,585 (2007) ("[I]f hormones alone are a determining factor of gender, gender can be bought over-the-counter. Moreover, the varying degree of hormonal presence between people suggests varying degrees of gender, a notion that defies the binary system.").

(208) See Craig v. Boren, 429 U.S. 190 (1976). In that case, the U.S. Supreme Court found the gender-based prohibition under state statute regarding the sale of "nonintoxicating" 3.2% alcohol beer to males under the age of twenty-one and to females under the age of eighteen to constitute a denial of equal protection of the laws in violation of the Fourteenth Amendment for males eighteen to twenty years of age. Id. at 210. See also id. at 197 ("To withstand constitutional challenge ... classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.").

(209) Androgynous--an drog y nous, adj[.]: having the characteristics or nature of both male and female. Androgynous Definition in Merriam-Webster's Medical Dictionary, Dictionary.com, http://www.merriamwebster.com/medical/androgynous [http://perma.cc/EY2M-EELW] (last visited Apr. 27, 2015). "The truth is, a great mind must be androgynous." Samuel T. Coleridge, Specimens of the Table Talk of Samuel Taylor Coleridge 199 (1851).

(210) See Knauer, supra note 84, at 22:

   In its broadest sense, genderqueer embraces a fluidity of gender
   roles and behaviors that encompasses the type of gender variance
   generally approved within the progressive understanding of gender.
   However, genderqueer parts company with the progressive critique in
   that it rejects not simply the gender role behavior and
   expectations associated with one's gender assigned at birth, but
   the act or meaning of that assignment..


(211) See Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender That is More Inclusive of Transgender People, 11 Mich. J. Gender & L. 253, 266 (2005) ("Some transgender people identify as trans, tranny, trannyboy, trannygirl, transsexual, transgender, shinjuku boy, boi, grrl, boy-girl, girl-boy-girl, papi, third gender, fourth gender, no gender, bi-spirit, butch, dyke-fag, fairy, elf girl, glitterboy, transman, transwoman--just to name a few.").

(212) "Those who experience their gender as different from their sex are constantly aware of that difference--even if the difference is not visible to others--and they often search for ways to explain their experience." Jamison Green, Foreword to Nicholas M. Teich, Transgender 101: A Simple Guide to a Complex Issue, at i (2012).

(213) Tan, supra note 79, at 579, 591 ("The Sixth Circuit was the first circuit to explicitly hold that Title VII protected transgender employees.") (citing Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)).

(214) Hemandez-Montiel v. Immigration & Naturalization Serv., 225 F.3d 1084, 1093 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzalez, 409 F.3d 1177, 1187 (9th Cir. 2005).

(215) Hernandez-Montiel, 225 F.3d at 1087. Although the court recognized the litigant's female sexual identity, it chose to use male pronouns to refer to her.

(216) Id. at 1095.

(217) Ben-Asher, supra note 197, at 94-95.

(218) See Lloyd, supra note 76, at 177 ("Yet this hoped for revolution in transgender Title VII jurisprudence has been slow to materialize. In Title VII cases decided since Price Waterhouse, federal courts have almost without exception continued to interpret 'sex' to exclude transgendered people.").

(219) California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont, and Washington. See Non-Discrimination Laws: State By State, supra note 41.

(220) See Non-Discrimination Laws: State By State, supra note 41.

(221) See Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity, supra note 42.

(222) See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion) (a plaintiff who does not act according to the stereotypical notions of how a woman should act is protected under Title VII). See also Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), in which a pre-operative transgender female police officer who was a candidate for promotion alleged illegal sex discrimination based on failure to conform to sex stereotypes. Id. at 737. She was told she lacked a "command presence" and did not act masculine enough, was evaluated in a more intrusive and embarrassing manner than classmates, and was told by a superior officer that she would fail probation for not acting masculine enough. Id. at 734-35. The Sixth Circuit found Barnes to be a member of a protected class and held that discrimination based on gender non-conformity is illegal. Id. at 737. In Smith v. City of Salem, Ohio, 378 F.3d 566, 574-575, 578 (6th Cir. 2004), the court held that gender-non-conforming conduct is covered by sex discrimination prohibitions and that discrimination based on transgender status (which is rooted in insistence that sex organs and gender must coincide) is the very root of sex discrimination.

(223) Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex From Gender, 144 U. Pa. L. Rev. 1, 62 n.256 (1995); see also Jennifer L. Nye, The Gender Box, 13 Berkeley Women's L.J. 226, 230 (1998).

(224) Judith Butler, Gender Trouble: Feminism & the Subversion of Identity 191 (1999).

(225) Daniel Ladinsky, I Heard God Laughing: Renderings of Hafiz, 69 (1996) (internal line breaks omitted).

(226) See Kari Balog, Equal Protection for Homosexuals: Why the Immutability Argument is Necessary and How It Is Met, 53 Clev. St. L. Rev. 545, 562 (2006).

(227) E-mail from Patrick A. White, Ph.D., to the author (Sept. 9, 2006) (on file with author).

(228) William N. Eskridge, Jr., Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive, 57 UCLA L. Rev. 1333, 1349-50 (2010).

(229) Knauer, supra note 84, at 42 ("What about the transwoman who post-transition identifies as a lesbian?").

(230) See Bergman, supra note 187.

(231) S. Bear Bergman, panel discussion at Spokane Falls Community College, June 7, 2006.

(232) Knauer, supra note 84, at 1-2 ("The feminist reception to transgender issues has been arguably even less successful and, at times, has been marked by outright hostility."). Different threads of feminist thought treat transgender issues differently. A full discussion is beyond the scope of this Article.

(233) Id. at 42 ("To some feminists, the transwoman cannot be a lesbian because her gender assigned at birth was not female and, therefore, she was not a 'womyn born womyn.'") (citing Aaron H. Devor & Nicholas Matte, ONE Inc. and Reed Erickson: The Uneasy Collaboration of Gay and Trans Activism, in Transgender Stud. Reader 389 (Susan Stryker & Stephen Whittle eds., 2006)).

(234) This is a lower-case L, not the number one.
COPYRIGHT 2015 Columbia University -- JGL
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2015 Gale, Cengage Learning. All rights reserved.

 
Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:Appendix I through Appendix II, with footnotes, p. 163-203
Author:Hammer, Gail
Publication:Columbia Journal of Gender and Law
Date:Jun 22, 2015
Words:27647
Previous Article:Transparent: when legal fictions and judicial imagination make facts disappear, they enforce transphobic discrimination.
Next Article:Over-the-counter access to oral contraception: reproductive autonomy on pharmacy shelves or a political Trojan horse?
Topics:

Terms of use | Privacy policy | Copyright © 2018 Farlex, Inc. | Feedback | For webmasters