girl ipsa loquitur: A Rule Unused is a Useless Rule ~ <span style="font-size:85%;">a new friend, process vs. result and trans-sexual fatherhood</span> Email me!

Tuesday, March 08, 2005

A Rule Unused is a Useless Rule ~ a new friend, process vs. result and trans-sexual fatherhood

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I recently had a conversation with a new friend, who possesses the spectacular quality of not thinking just like me! Imagine that. Someone with a different point of view. We determined that he is very process oriented. Rather completely unlike Girl Ipsa who is an anal-retentive-goal-oriented-control-freak, but we knew that already.

So, we're talking about interesting legal stuff and the "Ten Commandments in Court" issue arises. We boil it down to the idea that there is a technically correct bit and a technically incorrect bit but the vast majority of the matter is just "who cares"? My friend is not a law student. In fact, if he were a law student he might spontaneously burst into flames. I know this because this is the question he posed: "If it doesn't matter, really, then why don't they just leave well enough alone?"

A question like this is the antithesis of the legal process. We like details. We like minutiae. WE LIKE RULES. What good is a rule if you can not invoke it! And this particular issue stands firmly on a constitutional rule, no less. A rule from the constitution! This is not just any rule. This is the super supreme rule of all rules... Well, you can imagine in what ways my friend and I must differ. and in what ways legal study would torture my artistic, process loving friend.

In an honest attempt to answer his question I responded in the only way possible by saying "Why, because it is the technically correct RESULT."

Meaning, of course, that a rule unused is a useless rule.

Friends of Girl Ipsa know where I stand on this particular issue. A giant multi-ton concrete edifice, boldly emblazoned with the Ten Commandments** has no business in our court houses. Nor does the tastefully rendered-on-parchment Ten Commandments. Nor the collector plate lovingly painted with Jesus and a lamb and the Ten Commandments spelled out in fluffy clouds... Technically we ought to slap some separation in there.

But new friend wonders why anyone even bothers to complain, not really valuing the technicality. And I have to wonder with him as I read about this whole trans-sexual fatherhood quagmire.

There are dozens of interesting things going on in this case. Scientific stuff, social stuff, expert evidence stuff and lots of legal stuff. But the part I am interested in today is the technical correctness of the decision. To my mind, a man has been denied his parental rights to his 7 year old child -- on a technicality. (Or several technicalities if you wanna get specific)

The wife/mother (Jennifer Simmons) married this guy knowing exactly what he was. She chose to have a child with him and explicitly, by written contract, affirmed his rights as father and his obligations as father. She then went ahead and had the child and spent 7 years raising her with this man as her dad. Now, all of a sudden because mom's changed her mind, she is asserting technical defenses to his fatherhood.

He is not biologically a father since he has no testicles and could never have impregnated a woman. However, there are teaming hordes of men who can not impregnate their wives. This alone had never been a basis on which to deny them parental rights. Can you see it?
"Well, Mr. Jones. The court sees that you were married to the biological mother, held her hand while she was artificially inseminated, wiped her tears when she cried each time it didn't "take", held her hair while she vomited for 6 months straight, got out of bed at 2 in the morning to go get ice cream and wasabi, suffered a shoulder dis-location while helping her push that baby out, took 4 weeks off of work to help, got up a dozen times a night to wipe milk spit-up and change diapers, sat in the emergency room for 16 hours while the fever was lowered, taught that kid to ride a bike, read a book and change the oil in the car... However, you are not biologically his father and therefore you have no rights whatsoever. Better luck next time. Maybe you should try cloning?"

It's ridiculous. So what's left? Well, there is a presumption of fatherhood of any child conceived during marriage. That should offer our hapless parent some protection, right? But this is where another technicality rears its ugly head.

Mom says "Sure, but since you are biologically a woman then we had a gay marriage and that's not legal so we had no marriage and tough luck to you!"

Interesting that when she was happy with her man she didn't let that whole biological-gay-illegal thing stand in the way. Back when she loved him she was fine with his interesting gender. Back when she wanted him to be financially responsible for her child she was fine with his gender. But now that she'd rather get on with out him it all becomes of the highest importance. And she is using all these technicalities to deny him his child.

A rule unused is a useless rule.

Girl Ipsa is distressed. On the one hand I am a by-the-book girl. But on the other hand somethings just speak for themselves. For instance, it's wrong to tell a seven year old child that she no longer has a daddy because mommy is technically correct (and pissed off) . Further, it's wrong for the social movement against gay marriage, homosexual relationships and all those scary "gender disorders" to harm children in the name of protecting them.

The court in this case may be technically correct. Jennifer Simmons may be technically correct. But I hope they are ashamed of themselves.

**I capitalize Ten Commandments out of respect for theology, not grammar.


Blogger Satin Jenni said...

Well spoken Girl.
I personally don't agree with the courts perspective on this matter.
I hope the biological parent realizes the harm she is creating and reverses her decision to exclude her partner of many years from her childs life.
As for transgender disorders,(I may be the judge)...I can't imagine being denied access to my children simply because I don't fit the appropriate societal label of the day. Custodial access should be determined with the childs sole interests paramount. Limiting child access to the traditional family is antiquated and reeks of the religious and political right.

6:07 PM  
Blogger B said...

It's unconscionable to separate a child from his or her parent for any reasons unrelated to abuse or neglect. And people do it every day. It's grotesque. But I really stopped by to tell you that I'd linked to your blog here.

12:47 PM  
Anonymous Eve said...

Very interesting stuff - thanks for sharing.

6:14 PM  
Blogger Charone said...

Rock on!

5:11 PM  
Blogger Old Guy said...

First, I totally disagree with you regarding the 10 commandments and the court room. Despite your law background, I know I'd give you a run for your money on that one. However, what I find ironic or odd is that on the one hand you WANT things to be "by the book" the rule, the law. On the other hand when the "book" screws a guy like it is in this case you bemoan that fact. Yes, it seems that he is being screwed by the system (personally I think the mother was whack to choose him in the first place). However, you don't like it, you change the system/the laws, you don't bemoan what is - otherwise we end up with essentially a lawless society which doesn't amount to much of a society.

3:54 PM  
Blogger Girl Ipsa said...

Old Guy ~

I'm not sure I bemoaned anything. I'll look into that. As for the Ten Commandments issue I think it would be great if you gave me a run for my money. Shoot it to my email and I'll post the whole she-bang.

While you're at it, though, make sure you review the establishment clause and the free exercise clause of the US Constitution (and the subsequent judicial interpretation of those rules). I want to be sure we're talking the same language.

I can agree with out reservation that the way to "bemoan" rules is to change them. I'm not sure the rules which applied in this case were ever meant to address this case. It's a whole new ballgame.

Thanks for Reading! Girl Ipsa

4:44 PM  

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