JANET DOLGIN

Jack and Freda Dicker Distinguished Professor of Health Care Law, Maurice A. Deane School of Law at Hofstra University

Professor of Science Education, Donald and Barbara Zucker School of Medicine at Hofstra/Northwell. 

Successive editions of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) have provided a useful, if challenging, reference for courts in cases that require assessments of mental health. Most of those cases involve criminal defendants. This Article considers judicial reliance on DSM diagnostic categories in cases involving matters of personal status. It examines the potential benefits as well as the disadvantages of that reliance.

The Article explores two substantive domains. The first includes cases in which transgender people have sought the right to be identified legally in harmony with gender identity rather than the sex assigned to them at birth and to be treated fairly as members of the gender conforming with their identity rather than their sex at birth. The second domain includes cases implicating parental status.

Each set of cases involves momentous consequences for those involved. Transgender litigants often depend on a medical diagnosis in seeking a wide variety of legal rights (e.g., the right to coverage for medical care, the right to obtain employment, the right to obtain gender-conforming documentation such as a birth certificate). The law’s failure to recognize and protect the right of transgender populations to live in conformity with gender identity can pose onerous burdens on transmen and transwomen in almost every domain of everyday life. The most recent edition of the DSM (DSM-5) offers transgender people a mitigated diagnosis that provides a basis for seeking coverage for medical transition and that avoids serious stigmatization of the sort that accompanied reliance on earlier DSM editions. In contrast, in the second set of cases examined in this Article, a parent’s having been diagnosed with a mental disorder is not likely to serve that parent in litigation threatening him or her with the termination of parental rights. The consequences can be draconian for children and their parents.

For judges, asked to assess the implications of gender identity for transgender litigants or to discern the scope and implications of a parent’s mental disorder in parental termination cases, DSM diagnostic categories provide a useful frame of reference. Judicial reliance on the DSM serves some litigants more than others. As a general matter, at least since the appearance of the fifth edition of the DSM in 2013, courts’ reliance on DSM diagnostic categories has served transgender litigants seeking broader rights. The DSM may also serve parents seeking to retain parental rights but, at least as often, the manual provides judicial justification for terminating parental rights. In both types of cases, judicial reliance on DSM diagnostic categories can have profound consequences for litigants.

Part II of this Article summarizes the development of the DSM from the appearance of DSM-I in 1952 until the most recent edition, DSM-5, published in 2013.10 It considers use of DSM diagnostic categories in cases involvingdiagnosis and assessment of parties’ mental status. Further, it introduces and analyzes some of the benefits and the limitations of judicial reliance on DSM diagnostic categories. Parts III and IV respectively review judicial reliance on the DSM in cases involving transgender populations and in cases involving potential loss of parental rights. Judicial reliance on DSM diagnoses in cases about transgender rights increased significantly after appearance of DSM-5 in 2013. That reflects increased tolerance toward transgender people within society as well as significant changes in the American Psychiatric Association’s (APA’s) understanding of gender identity. Reliance on DSM diagnoses in cases involving parents at risk of losing their children goes back further in time. The Article focuses on two distinct types of termination cases – those involving parents diagnosed with substance abuse disorder (categorized as a mental disorder in the DSM) and a case in which an expert, relying on DSM diagnostic categories, diagnosed a surrogate mother, facing loss of parentage, with a mental disorder. Finally, Part V reviews the benefits and disadvantages of judicial reliance on DSM diagnostic categories in cases occasioned by both sorts of personal status disputes reviewed in the Article  [Read entire Article here].