Judge Rules Transsexual in Custody Case Is Male

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 case to proceed to trial sometime next year.

“We couldn’t be happier,” said Taylor Flynn, an American Civil Liberties Union staff attorney who is 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 sex change surgery 20 years ago. He and Kristie Vecchione, 27, of Rancho Santa Margarita, were married in 1990 and divorced five years later. During the 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 maintains she did not know that her former husband was born a woman but thought he was 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 and deny him joint custody of their daughter.

In a written opinion, Orange County Superior Court Judge Gary Ryan wrote that California recognizes the postoperative gender of all transsexual people.

No trial date has been set for the custody case.

Associated Press contributed to this story.