This newsletter would be exceptionally boring (even more so, I mean) if I shied away from hot-button issues, but I try to avoid writing about the great transgender debate that’s consumed social media these past few years.
It’s not that I don’t know much about the issue - when has that stopped me before? - but that the argument has been completely dominated by extremes who will try to get you cancelled if you step out of line.
On one side are right-wing social conservatives and provocateurs who refuse to acknowledge that anyone, especially a minor, can be transgender, or at least have hit on a red-meat issue that lets them rile up the base without talking about anything actually important. And in the other corner, we have extreme-left wokelings who interpret any criticism or questioning, no matter the intention - say, “are we sure giving hormone blockers to young people won’t have any long-term consequences?” - as literal genocide.
Honestly, just by calling it a “debate” I might have already offended someone. I probably won’t get any invites to speak at McGill Law School any time soon.1
But sometimes a story comes up that I can’t not discuss, especially when it touches on my day job, like this one from Vice:
A cisgender man in Ecuador legally changed his gender to female in an attempt to gain custody of his two daughters. But LGBTQ groups are concerned about the man’s use of a law designed to promote transgender rights, and what effect it could have in the future.
René Salinas Ramos, 47, told local media that the change was not related to his sexuality or identity, but rather that the Ecuadorian legal system gives preferable rights to mothers over fathers when it comes to the custody of children.
“The laws say that the one who has the right is the woman. As of this moment, I am female. Now I’m also a mom, that’s how I consider myself,” Salinas Ramos told La Voz del Tomebamba outside the Civil Registry office on December 30 in the city of Cuenca. “I am very sure of my sexuality. What I have sought is that I want to be a mother, so that I can also give the love and protection of a mother.”
Salinas Ramos alleged that his daughters live in an abusive environment with their mother and that he hasn’t seen his children in over five months.
“Being a father in this country, Ecuador, is punished and I’m only seen as a provider,” said Salinas Ramos.
Transgender activists in Ecuador are crying foul:
But the man’s legal change from male to female has surprised and concerned LGBTQ activists who fought to have Ecuadorian laws changed in 2015 to allow the change of gender.
“This man’s private matter, to obtain custody of his daughters, isn’t the spirit of the law,” Diane Rodríguez, one of Ecuador’s most prominent trans activists and the national director of the Ecuadorian Federation of Organizations LGBTI, told VICE World News.
Rodríguez, who became Ecuador’s first trans Assembly person from 2018 to 2021 and also helped spearhead the 2015 law, said that with her understanding of the law, a judge would certainly not give custody because of a change of gender “because it does not make sense that you have changed your gender in the identity document without being a trans person, only with the objective of taking advantage to obtain custody.”
She’s probably right about Ramos’ intent and how it’s likely to affect his case. If a family court judge is so set in his ways that he’d automatically grant custody of a child to the mother, he’s unlikely to be impressed by a father who’s abruptly declared that, actually, he’s a mother, too. Er, she’s a mother, too.
But, as Greta Aurora notes in UnHerd, the case does raise some questions about changing one’s gender through “self-identification”:
Diane Rodriguez, a notable trans activist in Ecuador, asserted that Salinas Ramos’s legal change wasn’t in “the spirit of the law” but, in reality, his bid to be recognised as a woman exposes loopholes in the policy of self-ID.
Feminists concerned about self-ID laws tend to focus on the dangers of biological males entering women’s single-sex spaces and competing in women’s sports. They argue that gender recognition laws like the one recently passed in Scotland make it easier for men with malicious intentions or severe mental health conditions to attack or disturb women and girls at places where they are at their most vulnerable.
But this case shows that there are other ways in which the self-ID system can be exploited. As Salinas Ramos’s case shows, criminal intent is not the only reason biological men may choose to misuse an easily accessible ‘woman’ label.
It’s not just in the courtroom where biological males can benefit from the system either. Identifying as female could also grant biological males access to advantages in education and employment. EU countries allowing self-ID may see a rise in men identifying as women once employers start implementing the gender quota law recently passed by the European Parliament. The new directive will require 40% of non-executive board positions and 33% of executive seats to be filled by women in the bloc’s 27 countries. The earlier female retirement age may also appeal to many men. Will other biological males transition to advance their own careers?
I remain skeptical that large numbers of men would take this drastic a step just to gain an advantage in sports or some other situation, and don’t think the existence of outlier cases should form the basis for public policy.
That said, as with the alleged Club Q shooter, it would be nice to have some ground rules for when “self-ID” is legitimate, aside from political convenience.
As for Ramos’ Hail-Mary legal strategy, would it work here in Canada? Probably not. Part of the reason is because, at least in my experience as a family lawyer, the trope that “women always get the kids” isn’t really true.
In most cases I’ve worked on, yes, primary care of the child usually ends up with the mother. But that has less to do with any bias against fathers’ child-rearing abilities and more to do with simple reality, which is that mothers are more likely to put their careers on hold to raise children while fathers continue working full-time.
This isn’t as true as it used to be, but it’s still more common than the reverse. And it makes sense that a child’s “primary caregiver” will have the child in her care more often than her ex.
But “shared parenting” arrangements, in which each parent has the child in his or her care for close to equal amounts of time, are becoming much more common. And do we ever have cases where it’s the father who is awarded custody of children?
We certainly do, more often than most people think.
The overriding concern in any family law matter is the best interests of the children, and that encompasses a nearly endless list of factors. In my own practice, I’ve seen many cases where the children are old enough to state their preferences and have them strongly considered by the court, and they choose to live with their fathers. I’ve seen mothers who’ve been caught up in the criminal justice system or struggling with addictions and mental health problems, where they simply are not able to care for children.
I’ve even seen cases where mothers just…walk away, leaving the father to look after the kids and then try to pursue her for child support. (I try using the phrase “deadbeat parents,” not “deadbeat dads,” because I’ve struggled through many cases where we’re trying to get absent mothers to financial support their kids. And in some unfortunate situations, I’ve been the person representing these people. Lucky me.)
As a father who shares custody of his children, I take considerable interest in making sure my male family law clients don’t resign themselves to just assuming they won’t be part of their children’s lives. It’s not always easy - not naming names, but dealing with some judges and fellow lawyers is like playing pigeon chess - but the only way to definitely lose is to give up before the match has even started.
That McGill law students are a censorious mob is sadly unsurprising. That the law school dean is - for now - standing up for freedom of expression at his school is a pleasant surprise.