Category: LGBTQ
6.7.25
Navigating parenthood can be complex, and for transgender parents, the legal landscape often adds additional layers of uncertainty. Illinois provides several important protections for trans parents, whether they are seeking to affirm their legal parentage, adopt a child, or safeguard their parental rights during a divorce. While the law continues to evolve, Illinois has taken meaningful steps toward recognizing and upholding the rights of LGBTQ+ families.
This post provides an overview of key protections and considerations for trans parents in Illinois, focusing on second-parent adoption, legal parentage, and issues that may arise during divorce and custody proceedings.
Establishing legal parentage is foundational to ensure that a parent’s rights and responsibilities are recognized under the law. In Illinois, parentage is governed by the Illinois Parentage Act of 2015, which provides gender-neutral definitions of parents. 750 ILCS 46/103(n). This is a significant benefit for transgender and nonbinary parents, as it recognizes that parenting roles do not need to be tied to gender identity or biology.
Under the law, a person is presumed to be the legal parent of a child if:
750 ILCS 46/204(a). This presumption applies regardless of the gender identity of the parents. For example, a transgender man married to a woman who gives birth is presumed to be the child’s legal parent, even if he is not genetically related to the child.
However, this presumption can be challenged, particularly in situations involving assisted reproduction or surrogacy. To strengthen legal protections, many LGBTQ+ couples and trans parents turn to second-parent adoption, even when legal parentage is presumed.
In Illinois, second-parent adoption allows a person to adopt their partner’s child without terminating the legal rights of the birth parent. This process is often used by LGBTQ+ families, including trans parents, to ensure that both partners have legally recognized parental rights—regardless of biological or marital status.
Second-parent adoption is particularly important in cases where:
Although Illinois recognizes the parentage of non-biological, same-sex, and trans parents under the Parentage Act, second parent adoption provides an extra layer of legal security. This is especially useful when traveling or relocating to states that may not be as protective of LGBTQ+ family rights.
The second-parent adoption process where the non-biological parent is married to the birth parent at the time of birth typically involves: filing a petition for adoption and submitting documents such as the child’s birth certificate, marriage certificate, affidavits, and a letter from the medical team that performed the insemination. In Cook County, these types of cases do not require a court appearance if certain requirements are met.
Adoption where the parents were not married at the time of birth (also known as stepparent adoption) typically involves a background check, a short investigation by a Guardian ad Litem, and a court hearing. While this may seem burdensome, it is a crucial step in safeguarding parental rights.
Transgender parents who conceive using assisted reproductive technology (ART)—such as sperm or egg donation, IVF, or surrogacy—should be aware of how Illinois law addresses parentage in these situations.
Illinois law provides that intended parents who consent to ART are the legal parents of the child. 750 ILCS 47/15. This applies regardless of gender identity or marital status. That means a trans man who uses donor sperm to conceive with a partner may be recognized as the legal parent if both parties consented to the process, provided that they have a written agreement to that effect or are already presumed to be the child’s legal parent for another reason, such as marriage.
However, documentation is key. Parents should ensure that they work with an attorney to enter into a valid donor agreement or gestational surrogacy agreement prior to conception to safeguard their parental rights. For transgender or nonbinary individuals who are not gestational or biological parents, second-parent adoption is again a recommended route.
Divorce can raise particularly sensitive issues for trans parents. Fortunately, Illinois courts are prohibited from discriminating on the basis of gender identity or sexual orientation. 775 ILCS 5/1 101 et seq.; Illinois Rules of Professional Conduct Rule 8.4(j). When it comes to decisions regarding custody (legally known as “allocation of parental responsibilities”), the guiding principle is always the best interests of the child.
Key factors considered by the court include, but are not limited to:
750 ILCS 5/602.7(b). A parent’s gender identity, by itself, is not a valid reason to limit parenting time or deny custody. Courts must base decisions on evidence, not bias or assumptions. 750 ILCS 5/602.7(b). However, trans parents may still face implicit bias from opposing parties or court personnel, which makes it all the more important to work with attorneys who are familiar with LGBTQ+ family law and can advocate effectively.
If a parenting plan is already in place and a parent transitions after the fact, it does not automatically alter their parental rights or require a modification. However, if there are substantial changes in circumstances (including relocations or changes in the child’s needs), a parent can petition to modify the parenting plan. 750 ILCS 5/610.5. Again, the focus will remain on the child’s best interests—not on a parent’s gender transition. Id.
Illinois law prohibits discrimination based on gender identity under the Illinois Human Rights Act. 775 ILCS 5/1 101 et seq. This protection extends to housing, employment, public accommodations, and—increasingly—family law contexts. Judges, child welfare agencies, and other professionals involved in the legal system are expected to respect a trans parent’s identity, including correct name and pronouns. See Illinois Rules of Professional Conduct Rule 8.4(j).
Unfortunately, not all discrimination is overt. Trans parents may experience subtle forms of bias, such as invasive questioning or skepticism about their parenting capabilities. Legal counsel can help address these challenges and ensure that the court process remains fair and respectful.
For trans parents in Illinois, the legal framework is steadily becoming more inclusive and affirming. But legal protections are only effective when parents understand their rights and take proactive steps to secure them. Whether you’re planning to adopt, going through a divorce, or simply seeking to confirm your legal relationship with your child, having knowledgeable legal support is essential.
At its heart, family law is about protecting relationships between parents and children, regardless of how those families are formed. Trans parents deserve the same recognition, respect, and protection under the law as any other parent.
If you have questions about your parental rights as a transgender individual in Illinois, consider reaching out to a family law attorney with experience in LGBTQ+ legal matters. Your family matters, and O. Long Law, LLC is here to help protect it. Contact one of our experienced family law attorneys to learn more.
Category: LGBTQ
5.20.25