Capacity to Gender Identify

Talk about cutting edge cases…

How about this one out of Jackson County: 60 year-old biological male with history of developmental disabilities and psychiatric events, decides he wants to become a woman. Family recognizes he has a history of gender confusion but believes that this recent push is the function of his trying to impress a certain caregiver and get attention – and that s/he doesn’t have the capacity to fully comprehend the implications of the decision.

The matter comes to court as a petition for a DD Guardianship, for an adult who heretofore has functioned independently with supports, but without a court appointed fiduciary.

This tees up the question: What is the standard for capacity to identify one’s own gender? Intuitively one would expect that capacity to gender identify would be one of the lowest standards in the law (like capacity to marry); but what if it is a passing delusion of a fragile mind? It entails serious medical implications and is irreversible.

Even better that the case was handled by two wonderful young lawyers: Chris Smith of CT’s Southfield Office, an officer of the Elder Law and Disability Rights Section of the State Bar v Rick Mills with Marcoux Allen in Jackson (and formerly of CT), a member of the council of the Probate and Estate Planning Section of the State Bar. The case was well pled and prepared on both sides.

Ultimately, the trial Court adopted the recommendation of the court-appointed expert to appoint a neutral guardian with specific instructions to investigate the extent to which the desire to transgender is fully appreciated by the man/woman who is the subject of the petition. Kudos to Dr. Lisa Ficker, psychologist out of the Wayne State University Institute of Gerontology for an excellent report.

Reasonable result. Great issue. Makes you think.