Transsexual in Custody Suit Is Ruled a Male

ORANGE — A judge ruled Tuesday that a transsexual embroiled in a child custody battle must be legally recognized as a male, a decision that paves the way for the bizarre case to proceed to trial sometime next year.

“We couldn’t be happier,” said Taylor Flynn, an American Civil Liberties Union staff attorney representing Joshua Vecchione in a battle to seek joint custody. “This ruling means that Joshua has rights equal to those of any parent. The court’s opinion recognizes that blood doesn’t make a family; love does.”

Vecchione, 40, of San Clemente, was born a female and called Janine until undergoing sexual reassignment surgery 20 years ago. He and Kristie Vecchione, 27, of Rancho Santa Margarita were married in 1990 and divorced five years later. During their marriage, Kristie Vecchione gave birth to a daughter, now 3, who was conceived through artificial insemination using sperm from Joshua Vecchione’s brother.

Kristie Vecchione and her attorney, Larry Ross, could not be reached for comment Tuesday.

They had argued in court that the marriage was invalid, maintaining that despite the operation, Joshua Vecchione is still a female and California doesn’t recognize same-sex marriages.

Kristie Vecchione also maintains that she did not know that her former husband was born a woman but instead thought he had been born with the genitalia of both sexes. She has said it was not her choice to marry a transsexual.

Her former husband insists that his ex-wife knew all along about his history and is only now using the information as a “weapon” to try to deny him joint custody of their daughter.

In a written opinion, Orange County Superior Court Judge Gary Ryan wrote that California recognizes the post-operative gender of all transsexual persons.

“The post-operative anatomy of Mr. Vecchione is male except that he is sterile and unable to conceive children,” Ryan’s opinion read in part.

The judge’s ruling means that the case will proceed just as any other custody case with the gender dispute no longer at issue, Flynn said.

Joshua Vecchione was not speaking about the ruling Tuesday but released a statement through the ACLU saying he was “thrilled” by the decision but saddened by his former wife’s attempts to deny him joint custody of their daughter.

“I feel like a person now,” he said in the statement.

No trial date has been set for the custody case.

Also contributing to this report was the Associated Press.