PSYCHIATRY IN THE COURTROOM: RELYING ON THE
AMERICAN PSYCHIATRIC ASSOCIATION’S MANUALS

TO RESOLVE DISPUTES ABOUT PERSONAL STATUS

JANET DOLGIN*

INTRODUCTION

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.1 Most of those cases
involve criminal defendants.2 This Article considers judicial reliance on DSM
diagnostic categories in cases involving matters of personal status.3 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,4 the right to
obtain employment,5 the right to obtain gender-conforming documentation such

* 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. I am indebted to Hofstra law school for the support that

made completion of this Article possible, to Isaac Samuels, Reference Librarian, Hofstra law

school, for his skill at identifying bibliographic references and his generous guidance with research;

to Jean Krebs, joint JD-MPH degree student, Hofstra University, for her careful research assistance;

and to Jennifer Calautti and Michelle Wallace, administrative assistants at Hofstra law school, for

their capable work and generous help.

1. Ralph Slovenko, The DSM in Litigation and Legislation, 39 J. AM. ACAD. PSYCHIATRY

& L. 6 (2011).

2. Id. at 6-8.

3. Courts have relied on psychiatric testimony and on the American Psychiatric

Association’s Diagnostic and Statistical Manuals in cases involving criminal responsibility, civil

commitment, disability determinations, and termination of parental rights, among other matters.

See, e.g., Slovenko, supra note 1. Psychologists join psychiatrists in relying on and interpreting

DSM diagnostic categories. 

4. See, e.g., Flack v. Wis. Dept. of Health Servs., 328 F. Supp. 3d 931 (W.D. Wis. 2018)

(finding for plaintiff seeking preliminary injunction to prevent state Medicaid program from

excluding “transsexual surgery” from medical coverage); see infra, Part III(B)(3).

5. See, e.g., Equal Emp’t Opportunity Comm’n v. R.G. & G.R. Funeral Homes, Inc., 884

F.3d 560 (2018) (allowing Equal Employment Opportunity Commission to move forward with Title

VII claim against employer on “the theory that Stephen’s failure to conform to sex stereotypes was



546 INDIANA LAW REVIEW [Vol. 53:545

as a birth certificate).6 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.7 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.8 The consequences can be draconian for
children and their parents.9 

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 involving

the driving force behind the termination). In 2020, the U.S. Supreme Court concluded that Title VII

protects employees fired on the basis of transgender status. Bostock v. Clayton County, Ga, 140

S. Ct. 1731, 590 U.S. __ (2020). 

6. See, e.g., F.V. v. Barron, 286 F. Supp. 3d 1131 (2018) (issuing injunction to preclude

state employees from refusing to recognize gender change applications from sex noted on birth

certificate).

7. See infra, Part III.

8. See infra, Part IV.

9. Similar reliance on psychiatric testimony and similar references to provisions in

successive editions of the American Psychiatric Association’s Diagnostic and Statistical Manual

of Mental Disorders could be offered in the context of other sorts of cases in which essential liberty

rights are at stake. See William M. Brooks, The Tail Still Wags the Dog: The Pervasive and

Inappropriate Influence by the Psychiatric Profession on the Civil Commitment Process, 86 N.D.L.

REV. 259 (2010). Brooks questions the role of psychiatrists in civil commitment proceedings. He

suggests that their “bias toward treatment,” and their inability successfully to assess the risk of a

person’s dangerousness can preclude fairness for a person being assessed for civil commitment. Id.

at 264.

10. The first four DSM editions were designated with Roman numerals (DSM-I, DSM-II,

DSM-III, and DSM-IV). The most recent edition was designated with an Arabic numeral (DSM-5).

See infra, note 13.



2020] PSYCHIATRY IN THE COURTROOM 547

diagnosis 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. 

I. THE DIAGNOSTIC AND STATISTICAL MANUALS AND THEIR
USE IN COURTROOMS

Lawmakers generally do not – and for the most part, should not – presume
to understand the scope and implications of the terms “mental illness” or “mental
disorder” beyond the understanding of the public generally. Legislators and
judges look to psychiatrists for guidance. But there is more than one elephant in
that room: psychiatrists, themselves, do not speak with a unified voice in
assessing instances of presumptive mental illness or even in describing the
symptoms and implications of mental illnesses. Furthermore, psychiatrists may
be reluctant to apply the diagnostic categories with which they work for forensic
purposes.11 That is troubling insofar as DSM diagnostic categories, as well as
changes in the DSM over time, may “have an impact on the liberties of
individuals by providing the justification for decisions related to coercive
treatments, assertive outpatient treatment, preventative commitment, or the
termination of parental rights,” as well as other matters.12

The Diagnostic and Statistical Manuals of the APA – first published as DSM-
I in 1952 and most recently as DSM-5 in 201313 – are primarily intended, as the

11. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL-IV-TR

xxx (2000) [hereinafter DSM-IV-TR].

12. Dominic Sisti & Rebecca Johnson, Revision and Representation: The Controversial Case

of DSM-5, 29 PUBLIC AFF. Q. 76, 79 (2015) (noting that the “DSM is a manual that carries indirect

coercive authority”).

13. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS (DSM-5) (2013) [hereinafter DSM-5]. The APA published DSM-I in 1952;

DSM-II in 1968; DSM-III in 1980; DSM-III-R in 1987; DSM-IV in 1994; DSM-IV-TR in 2000;

and DSM-5 in 2013; See infra, Part II (reviewing history of the APA’s publication of successive



548 INDIANA LAW REVIEW [Vol. 53:545

title suggests, to summarize a broad panoply of psychiatric diagnoses using a
plethora of psychiatric diagnostic categories.14 The DSM editions have delineated
diagnostic categories for use throughout the nation and in other nations. They
have offered a road map for psychiatric and psychological research and have
provided diagnostic categories for use by insurance companies and other
healthcare payors.

By the end of the first decade of the present century, one edition or another
of the DSM had been cited in more than 5,500 court decisions.15 Courts have
looked to psychiatric diagnostic categories for a variety of purposes16 in cases
involving, among other matters, issues about criminal responsibility,17 disability,18

insurance coverage,19 civil commitment to mental health facilities,20 transgender
rights,21 and termination of parental rights.22 The DSM has aided– and sometimes
confused – courts in each sort of case in their efforts to interpret statutory and
judicial uses of phrases such as “mental illness” and “mental disorder” by
offering psychiatrists’ understandings of those and related, cognate phrases.
Understanding the interplay between developments in psychiatry and the law’s
reliance on DSM diagnostic categories requires historical contextualization.

The history of the DSM’s construction arguably goes back to the mid-
nineteenth century, long before the appearance of the first Diagnostic and

DSM editions).

14. See generally JEFFREY A. LIEBERMAN, SHRINKS: THE UNTOLD STORY OF PSYCHIATRY

(2015).

15. Slovenko, supra note 1 (noting as well that during the same time period, the Manual was

cited over 320 times in legislation).

16. Id. at 6.

17. See, e.g., Com. v. Montanez, 769 N.E.2d 784, 796 (Mass. App. Ct. 2002) (reversing

conviction for second degree murder and noting that a mental disorder’s not being “codified as a

specific diagnostic category in DSM-IV does not mean that it is not a recognized disorder”).

18. See, e.g., Special Disability Trust Fund, Dept. of Labor & Employment Security v. P.B.

Newspaper/United Self Insured, 697 So.2d 1226, 1227 (Fla. Dist. Ct. App. 1997) (appellant “Trust

Fund” appealed order concluding that claimant Lane’s injury “merged” with “preexisting

psychological disorder;” court noted that DSM-IV did not list “any psychological disorder . . . as

a disease”).

19. Fitts v. Unum Life Ins. Co. of Am., 520 F.3d 499 (2008) (questioning terms of disability

insurance policy for employee diagnosed with bipolar disorder).

20. See, e.g., Dodd v. Hughes, 81 Nev. 43, 46 (Nev. 1965) (Dodd, seeking to be released

from mental hospital, argued that “a person must exhibit one of the psychotic reactions as classified

by the American Psychiatric Association before he may be considered mentally ill”).

21. See, e.g., Doe v. Mass. Dep’t Correction, 2018 U.S. Dist. LEXIS 99295 (D. Mass 2018)

(considering prison housing of transwoman); Gonzalez v. Nevares, 305 F. Supp. 3d 327 (D.P.R.

2018) (transgender individuals and organizations sought right to correct birth certificates so that

they would reflect gender identity); see infra Part III.

22. See, e.g., Matter of Commitment of Timothy Maurice B., 626 N.Y.S.2d 665 (N.Y. Fam.

Ct. 1995).



2020] PSYCHIATRY IN THE COURTROOM 549

Statistical Manual of Mental Disorders (DSM-I) in 1952.23 The first DSM (DSM-
I) tracked the World Health Organization’s International Classification of
Diseases (ICD-6), focusing on diagnosis of psychiatric conditions.2 4 The second
edition of the DSM (DSM-II), published in 1968, followed the model of the first,
offering very few changes.25 Then DSM-III, first published in 1980, included
significant innovations.26 Among them, this edition largely abandoned the
psychoanalytic approach that had dominated American psychiatry until that time
and that had informed the first two editions of the DSM.27 The members of the
APA Task Force charged with revising DSM-II, relied on “symptoms-based
criteria” for identifying psychiatric disorders.28 Historian Edward Shorter
described the volume that resulted as “a redirection of the discipline towards a
scientific course.”29 DSM-IV (published in 1994) and its revision, DSM-IV-TR
(published in 2000) relied on the framework presented in DSM-III.30

The fourth edition stated explicitly that the manual, while “provid[ing] a
classification of mental disorders,” did not “specif[y] precise boundaries for the
concept of ‘mental disorder.’”31 DSM-IV-TR continued to use the term mental
disorder but explained that choice as a result of the absence of a satisfying
alternative term.32 The text’s Introduction explained the term and its meaning by
referring to its preservation from DSM-III. It noted that “it is as useful as” any
other option.33

None of the manuals was crafted with legal conundrums in mind. That was

23. Annemarie Goldstein Jutel, Putting a Name to It: Diagnosis in Contemporary Society 6

(2011) (noting that the “predecessor” to the DSM offered a “statistical classification” of patients

and “was designed to improve communication about the types of patients cared for in [mental]

hospitals.”) The Association of Medical Superintendents of American Institutions for the Insane

recognized psychiatry as a medical specialty in the mid- nineteenth century. Alina Suris, Ryan

Holliday & Carol S. North, The Evolution of the Classification of Psychiatric Disorders,

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4810039/ [https://perma.cc/K555-PVBW]. The

first organized effort to categorize mental disorders in the U.S. began through the work of the U.S.

Census Bureau, interested in discerning the level of mental illness in the U.S. for the census taken

in 1920. Id.

24. DSM History, AMERICAN PSYCHIATRIC ASSOCIATION, https://www.psychiatry.org/

psychiatrists/practice/dsm/history-of-the-dsm [https://perma.cc/97UV-U467] (last visited Mar. 23,

2020).

25. Id.

26. Id.

27. JEFFREY A. LIEBERMAN, SHRINKS: THE UNTOLD STORY OF PSYCHIATRY 134 (2015).

28. Id. at 135.

29. EDWARD SHORTER, HISTORY OF PSYCHIATRY: FROM THE ERA OF THE ASYLUM TO THE

AGE OF PROZAC 302 (1997).

30. Lieberman, supra note 27, at 271.

31. Diagnostic And Statistical Manual-IV-TR, supra note 11.

32. Id. (noting that “unfortunately the term [“mental disorder”] persists in the title of DSM-IV

because we have not found an appropriate substitute”).

33. Id. at xxxi.



550 INDIANA LAW REVIEW [Vol. 53:545

explicit in both DSM-IV-TR (2000) and its replacement, DSM-5 (2013). Both
editions assert openly – almost by way of a warning – that DSM diagnoses were
not crafted for use in forensic settings. DSM-5, echoing DSM-IV-TR,34 refers to
the “risk that diagnostic information will be misused or misunderstood” when
invoked “in forensic settings.”35 Thus, lawmakers, looking for clarification about
the implications of a mental illness (“mental disorder”)36 and diagnoses of mental
illnesses may be disappointed or confused when they turn to the DSM for
guidance or may, unwittingly, rely on concepts devised for responding to very
different situations than those at stake in most legal contexts.

Further, judicial and legislative reliance on DSM categories must be assessed
in light of disagreements about DSM diagnostic categories among psychiatrists.
The most recent edition, DSM-5, published in 2013, has been particularly
controversial within the profession and among non-psychiatrists.37 Before
compilation of DSM-5, its authors promised to ground psychiatry in biology.38

That did not happen, at least in part because the science needed to effect that
ambition “was not on hand.”39 Just before the edition’s official publication, the
Director of the National Institute of Mental Health (NIHM) expressed
disappointment in the effort to revise the fourth edition of the DSM and
proclaimed that NIHM would “be re-orienting its research away from DSM
categories . . . to begin to develop a better system.”40 He explained:

[W]e cannot design a system based on biomarkers or cognitive
performance because we lack the data . . . The diagnostic system has to
be based on the emerging research data, not on the current symptom-
based categories. Imagine deciding that EKGs were not useful because
many patients with chest pain did not have EKG changes. That is what
we have been doing for decades when we reject a biomarker because it
does not detect a DSM category.41

Yet, DSM-5 made significant changes to DSM-IV-TR (the 2000 revision of the

34. Id. at xxxii-xxxiii.

35. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL (DSM-

5) at 25 (2013). 

36. The Diagnostic and Statistical Manuals use the term “mental disorder,” rather than

“mental illness,” in their titles and refer throughout to “mental disorders.” But courts and the public

often use the term “mental illness” rather than “mental disorder.”

37. Lieberman, supra note 27, at 274-76.

38. ANNE HARRINGTON, MIND FIXERS: PSYCHIATRY’S TROUBLED SEARCH FOR THE BIOLOGY

OF MENTAL ILLNESS 268 (2019).

39. Id. at 269.

40. Id. at 267 (quoting and citing Tom Insel, Transforming Diagnosis, NIMH Director’s

BlogPosts from April 29, 2013).

41. Thomas Insel, Transforming Diagnosis, NIMH BLOG POSTS (April 29, 2013),

https://www.nimh.nih.gov/about/directors/thomas-insel/blog/2013/transforming-diagnosis.shtml

[https://perma.cc/WT7L-J534].



2020] PSYCHIATRY IN THE COURTROOM 551

fourth DSM edition). These included an expansion of diagnostic categories,42 new
explanations for those categories, including attention to “societal impact,”43

significant shifts in accounting for and diagnosing depressive disorders,44 and a
focus on “degrees of severity” of a mental disorder.45 DSM-5 also abandoned the
multiaxial system on which DSM-IV hinged.46 The public took an interest in the
shape of DSM-5. National news media reported on some of the changes reflected
in DSM-5 and the disagreements that those changes occasioned within
psychiatry.47

Both Dr. Robert Spitzer, the psychiatrist who led the effort that produced
DSM-III and Dr. Allen Francis, chair of the team that worked on revisions that
led to DSM-IV, criticized the process that led to DSM-5 as well as some of the
changes it contained.48

These criticisms and internal disagreements held consequences for society
beyond the domain of psychiatric care. That becomes clear in the cases examined
in this Article. Diagnosis with a mental illness can alter lives. It can occasion
clinical attention and treatment, stigmatization and ostracism, relief from
responsibility, even financial benefits or hardship as well as general relief and/or
increased stress. One psychiatric diagnosis may facilitate a person’s receiving

42. J.S. Blumenthal-Barby, Psychiatry’s New Manual (DSM-5): Ethical and Conceptual

Dimensions, 40 J. MED. ETHICS 531 (2014). The fifth edition included diagnoses not found in DSM-

IV and DSM-IV-TR, including “binge eating disorder, internet gaming disorder, caffeine use

disorder, hoarding disorder, premenstrual dysphoric disorder.” Id. at 531.

43. Id.

44. Jerome C. Wakefield, DSM-5: An Overview of Changes and Controversies, 41 CLIN. SOC.

WORK J. 139, 140 (2013) (asserting that this set of alterations constituted “some of the most

incendiary proposals and far-reaching changes” in DSM-5). Shifts in the chapter on depressive

disorders included the elimination of the DSM-IV exclusion for depression occasioned by grief (the

so-called “bereavement exclusion”). Id. at 148. Elimination of this exclusion created concern about

pathologizing a set of responses that seemed common and perfectly normal – something “central

to human experience.” Id.

45. Blumenthal-Barby, supra note 42, at 531. Correlatively, DSM-5 provided for various

diagnoses based on a lower number of symptoms than was the case with DSM-IV and DSM-IV-R;

Eric G. Waldon, DSM-5: Changes and Controversies, 32 MUSIC THERAPY PERSPECT IVES 78, 79

(2014). 

46. Wakefield, supra note 44, at 140 (noting that the change was largely instituted to render

psychiatry “more like general medicine and the need to coordinate with the ICD”). ICD is the

World Health Organization’s “International Classification Of Diseases.”

47. Benedict Carey, Grief Could Join List of Disorders, N.Y. TIMES (Jan. 24, 2012) (noting

“skirmish over the definition of depression” occasioned by “proposed change to the diagnosis [that]

would characterize grieving as a disorder and greatly increase the number of people treated for it”).

The article noted that many of the proposed changes for DSM-5 were “deeply contentious in the

field.” Id. Drafts of proposed alterations for DSM-5 were publicized online before the edition

appeared. Id.

48. Id.



552 INDIANA LAW REVIEW [Vol. 53:545

social and public benefits and another may preclude that.49 Even more, diagnostic
options may influence the “design of services.”50 The sociologist Annemarie
Goldstein Jutel asserted that “[t]he social impact of having a particular diagnosis
is considerable.”51 She continued:

Beyond its organizational role and the access it provides to resources,
diagnosis can stigmatize as well as legitimize, with psychiatry often
guarding the boundaries between deviance and disease. Unexplained
physical distress is often expressed as a psychiatric diagnosis. With few
exceptions, only the medical profession has the power to diagnose
disease; this medical custodianship of diagnosis reinforces medical
authority.52

Furthermore, the Chair of the DSM-IV committee that was responsible for
revisions that led to that edition of the DSM contended that the new diagnoses in
DSM-5 threatened to “‘radically and recklessly’” expand psychiatric authority.53

Some have viewed the expansion of diagnostic categories to pose especially
worrisome risks, especially insofar as many psychiatric diagnoses are made by
primary care physicians rather than by psychiatrists.54 Equally concerning, that
expansion may have been connected with financial conflicts of interest among
panel members who developed the DSM-IV and DSM-5. Those conflicts have
raised widespread concern.55 Some fear that these conflicts limited the usefulness
of certain new diagnostic categories for patients56 and that the expansion of
diagnostic categories is more likely to benefit the pharmaceutical industry than
people in need of psychiatric help.57

49. Martyn D. Pickersgill, Debating DSM-5: Diagnosis and the Sociology of Critique, 40 J.

MED. ETHICS 524 (2014).

50. Id.

51. ANNEMARIE GOLDSTEIN JUTEL, PUTTING A NAME TO IT: DIAGNOSIS IN CONTEMPORARY

SOCIETY xiii (The Johns Hopkins Univ. Press, 2011).

52. Id.

53. Katie Moisse, DSM-5 Criticized for Financial Conflicts of Interest, ABC NEWS NETWORK

(Mar. 13, 2012), https://abcnews.go.com/Health/MindMoodNews/dsm-fire-financial-conflicts/

story?id=15909673 [https://perma.cc/2LD9-AAW7] (quoting Dr. Allen Francis, who chaired the

revisions committee for the DSM-IV).

54. Id.

55. Id. (reporting that many members of the task force and expert panels that developed

DSM-5 received pay from the pharmaceutical industry as “spokespeople or scientific advisors for

drug companies”).

56. Lisa Cosgrove & Sheldon Krimsky, A Comparison of DSM-IV and DSM-5 Panel

Members’ Financial Associations with Industry: A Pernicious Problem Persists, PLOS MED 9(3)

(2012).

57. Lisa Cosgrove et al., Tripartite Conflicts of Interest and High Stakes Patent Extensions

in the DSM-5., 83 PSYCHOTHERAPY & PSYCHOSOMATICS 106 (2014). Cosgrove et al. report that

27 percent of DSM-5 working group members had one or more financial conflicts of interest

because of a connection to a drug manufacturer, and 61 percent of task force members had a



2020] PSYCHIATRY IN THE COURTROOM 553

All of these factors may limit the usefulness of DSM categories in legal
settings. That concern is exacerbated by the APA’s own disclaimer and warning
that the Association’s diagnostic manuals aim to assist in clinical diagnoses and
not to serve lawmakers in establishing individuals’ competence, responsibility or
disability.58 The introduction to DSM-IV explains that position:

When the DSM-IV categories, criteria, and textual descriptions are
employed for forensic purposes, there are significant risks that diagnostic
information will be misused or misunderstood. These dangers arise
because of the imperfect fit between the questions of ultimate concern to
the law and the information contained in a clinical diagnosis. In most
situations, the clinical diagnosis of a DSM-IV mental disorder is not
sufficient to establish the existence for legal purposes of a “mental
disorder,” “mental disability,” “mental disease,” or “mental defect.” In
determining whether an individual meets a specified legal standard (e.g.,
for competence, criminal responsibility, or disability), additional
information is usually required beyond that contained in the DSM-IV
diagnosis.59

Ralph Slovenko, a psychologist and lawyer who studied the use of DSM
diagnostic categories in forensic settings,60 suggested that this caveat (repeated
in DSM-5)61 may primarily serve as “a safeguard against liability.”62 Yet, as if to
mitigate its own warning about the use of DSM diagnostic categories in legal
contexts, DSM-IV-TR immediately followed the warning by suggesting the
Manual’s usefulness in such settings:

When used appropriately, diagnoses and diagnostic information can
assist decision makers in their determinations. For example, when the
presence of a mental disorder is the predicate for a subsequent legal
determination (e.g., involuntary civil commitment), the use of an
established system of diagnosis enhances the value and reliability of the
determination. By providing a compendium based on a review of the

financial conflict because of a connection with a drug manufacturer. Id. at 109. With regard to the

development of DSM-5, Lisa Cosgrove and co-authors found that, “[T]here may be a risk of

industry influence on the DSM revision process. Additionally, our findings of FCOI of PIs running

the clinical trials suggest that there also may be a risk of industry influence on the clinical decision-

making process for identifying interventions to treat these new ‘disorders.’” Id. at 112.

58. In re Timothy Maurice B., 165 Misc. 2d 122, 128 (1995).

59. DSM-IV-TR, supra note 11, at xxxii-xxxiii. DSM-IV-TR is an undated version of DSM-

IV, not a new edition. The central change involved “updating the diagnostic codes to be compatible

with ICD-9.” Diagnostic and Statistical Manual of Mental Disorders: DSM-IV vs. DSM-IV-TR, A

HISTORY OF THE DSM THROUGH CASE STUDIES, http://dsmistory.umwblogs.org/dsm-iv/influential-

people-and-studies/ [https://perma.cc/WM5U-U4TA].

60. See Slovenko, supra note 1.

61. DSM-5, supra note 13, at 25.

62. Slovenko, supra note 1, at 6.



554 INDIANA LAW REVIEW [Vol. 53:545

pertinent clinical and research literature, DSM-IV may facilitate the legal
decision makers’ understanding of the relevant characteristics of mental
disorders . . . [D]iagnostic information regarding longitudinal course may
improve decision making when the legal issue concerns an individual’s
mental functioning at a past or future point in time.63

Thus, concerns about use of the DSM in legal settings notwithstanding, courts
and legislatures have continued to rely on DSM diagnostic categorizations. The
next two Parts of this Article consider that reliance first (in Part III), in cases
involving the status and fair treatment of transgender people and second (in Part
IV), in cases in which parents have faced the loss of parental rights. In each set
of cases, legal decisions have implicated personal status, and in each set of cases,
courts or litigants have looked to DSM diagnostic categories to draw legal
conclusions about individuals’ gender or about their right to continue parenting
their children.

II. TRANSGENDER IDENTITY AND THE DSM

Whether or not transgender status is identified as a medical condition has
important consequences for transgender populations.64 Identifying transgender
people with a psychiatric disorder can result in or exacerbate stigmatization.65

However, transgender individuals seeking medical treatment to transition
physically so that their bodies will be in harmony with their gender identities will
not be covered by health insurance policies if the condition is not defined as
medical. And more generally, it may help those seeking equal treatment for
transgender people if they are able to categorize the condition as medical, rather
than a matter of individual choice.

Within the last few years, courts have increasingly66 looked to DSM
diagnoses in cases involving the right of transgender individuals to serve prison

63. DSM-IV-TR, supra note 11, at xxxiii; see also, Slovenko, supra note 1, at 6. DSM-5

reiterates the same message, DSM-5, supra note 13, at 25. However, DSM-5 proceeds to reiterate

the risks of diagnostic categories being “misused or misunderstood” when “employed for forensic

purposes.” Id.

64. The gender identity of transgender people differs from their sex at birth. Between .2 to

.5 percent of the population is transgender. Gary J. Gates, LGBT Identity: A Demographer’s

Perspective, 45 LOY. L.A. L. REV. 693, 698 (2012) (citing Gary J. Gates, How Many People Are

Lesbian, Gay, Bisexual, and Transgender? THE WILLIAMS INSTITUTE 5 (2011), http://

williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-How-Many-People-LGBT-Apr-2011.pdf

[https://perma.cc/5LKT-583K]).

65. Recent concern has focused on the exclusion of transgender people from bathrooms,

sports teams, and locker rooms. See Janet Dolgin, Transgender Women on College Athletic Teams

– The Case of Lindsay Hecox, 383 N. ENG. J. MED. 2000 (2020); Janet Dolgin, Discriminating

Gender: Legal, Medical, and Social Presumptions About Transgender and Intersex People, 47 SW.

L. REV. 61, 96-113 (2017).

66. A WestLaw search for “transgender /p (diagnostic AND DSM)” for cases decided before

2012 identified four cases; the same search for cases decided after 2011 identified 22 cases.



2020] PSYCHIATRY IN THE COURTROOM 555

terms in gender-conforming facilities,67 to be treated fairly at work,68 to have birth
certificates modified so that they are consonant with gender identity,69 to gain
access to coverage for medical care needed to transition,70 as well as other
matters. Increasingly since the appearance of DSM-5 in 2013, litigants seeking
equity for transgender people have invoked DSM diagnostic categories. That
follows from the American Psychiatric Association’s having significantly re-
shaped its discussion of transgender status between DSM-IV and DSM-5, with
the interests of transgender people in mind.71

DSM-IV included a transgender diagnosis within a category of psychiatric
disorders referred to as “Sexual and Gender Disorders.” This diagnostic category
included three sub- categories: “Sexual Dysfunctions, the Paraphilias, and the
Gender Identity Disorders.”72

There must be evidence of a strong and persistent cross-gender
identification, which is the desire to be, or the insistence that one is, of
the other sex . . . There must also be evidence of persistent discomfort
about one’s assigned sex or a sense of inappropriateness in the gender
role of that sex. To make the diagnosis, there must be evidence of
clinically significant distress or impairment in social, occupational or
other important areas of functioning.73

DSM-5 renamed the diagnosis, referring to what had been labelled “gender
identity disorder” as “gender dysphoria.”74 Gender dysphoria was not categorized
with “Sexual and Gender Disorders” (as DSM-IV had categorized gender identity
disorder) but received a section of its own in the new DSM.75 These changes
diminished the stigmatization inherent in DSM-IV’s label which asserted that
being transgender entailed having a psychiatric “disorder.” Yet, retaining the
condition in DSM-5 – though under a new diagnostic label – provided for a
medical diagnosis. That is of significance to members of the transgender

67. Doe v. Mass. Dep’t of Corr., No. 17-12255-RGS, 2018 U.S. Dist. LEXIS 35022 (D.

Mass. Mar. 5, 2018) (case initiated by transgender woman seeking transfer from men’s prison to

women’s prison).

68. Glenn v. Brumby, 724 F. Supp. 2d 1284 (N.D. Ga. 2010).

69. Gonzalez v. Nevares, 305 F. Supp. 3d 327 (D.P.R. 2018).

70. Good v. Iowa Dep’t Human Servs., 924 N.W.2d 853 (Iowa 2019); Flack v. Wis. Dep’t

of Health Servs., 395 F. Supp. 3d 1001 (W.D. Wis. 2019).

71. This re-shaping served the interests of those effected by the relevant DSM category. More

specifically, it allowed transgender people to seek coverage for medical transition but not at the

expense of the profound stigmatization that accompanied earlier DSM characterizations of

transgender people. See infra notes and accompanying text.

72. DSM-IV-TR, supra note 11, at 535.

73. DSM-IV-TR, supra note 11, at 576 (noting as well that the gender identity disorder will

not be applied to someone who “has a concurrent physical intersex condition”).

74. “Gender identity disorder” was defined quite differently from “gender dysphoria.”

However, the second replaced the first in DSM-5. See DSM-5, supra note 13, at 451-59.

75. DSM-5, supra note 13, at 451-59.



556 INDIANA LAW REVIEW [Vol. 53:545

population who seek reimbursement for medical expenses related to sex
reassignment.76 DSM-5 offers separate diagnostic criteria for gender dysphoria
in children and in adolescents and adults.77 A crucial component of the diagnosis
for all age groups is that the individual feel distress. DSM-5 explains this
requirement for the diagnosis of gender dysphoria: “The condition is associated
with clinically significant distress or impairment in social, occupational, or other
important areas of functioning.”78 Thus, gender identity among transgender
people is not a mental disorder. Unhappiness produced by that identity may be.

In short, a mental disorder (“gender dysphoria”) cannot be diagnosed
pursuant to DSM- 5 unless the individual feels “distress or impairment” with
regard to gender identity.79 This change from DSM-IV effectively asserts that the
psychiatric disorder is not the underlying condition. Rather, the disorder can be
identified only through reference to a person’s dysphoria.80

A. Cases About Transgender Status Decided Before Publication of DSM-5

Before the appearance of DSM-5 in 2013, not many court decisions involving
transgender litigants seeking civil rights referred to the DSM.81 In only two of
those cases was the court’s reference to the DSM of more than passing concern.
This may reflect changes made to the DMS between DSM-IV and DSM-5. Even
more, it likely reflects the increasing readiness of society to acknowledge
unfairness in the treatment of transgender people and, accordingly, the increasing
readiness of transgender people to seek legal redress when they face
discrimination.82

This sub-section reviews two cases involving transgender rights that were

76. Wakefield, supra note 44, at 146.

77. DSM-5, supra note 13, at 452-453. The Manual categorizes adolescents and adults

together.

78. DSM-5, supra note 13, at Sec. 302.85(B), p. 453. The explanation with regard to children

reads: “The condition is associated with clinically significant distress or impairment in social,

school, or other important areas of functioning.” Id. at Sec. 302.6(B), p. 452.

79. Some transgender people, as well as some other people, prefer to be referred to by the

neutral pronouns “they, them, their,” rather than by the singular pronouns, he, him, his or she, her,

her. LGBT Resource Center, Gender Neutral Pronouns, UNIVERSIT Y OF S. CALIF., https://lgbtrc.

usc.edu/trans/transgender/pronouns/ [https://perma.cc/M4C3-V5XV] (last visited Apr. 16, 2020).

Others prefer single pronouns such as sie, hir, and hir or zie, zir, and zir. Id.

80. This diagnostic revision may be a harbinger, suggesting that the category will be removed

from the diagnostic categorizations of a future Manual. Wakefield, supra note 44, at 146.

81. A WestLaw search for “adv: transgender /p diagnostic AND DSM AND DATE (bef

2012)” identified only four cases, all decided between 2002 and 2010. WestLaw reported no such

cases for 2012. DSM-5 appeared in 2013. DSM-5, supra note 13.

82. See, e.g., G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) (transgender

boy sued for right to use boys’ bathroom at school), judgment vacated, 137 S. Ct. 1239 (2017)

(vacating and remanding due to DOE and DOJ’s guidance document); Bd. of Educ. v. U.S. Dep’t

Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).



2020] PSYCHIATRY IN THE COURTROOM 557

decided before 2013. These were the only cases decided by a court before 2013
that raised issues about transgender rights and made more than a passing
reference to the DSM. The first was decided by a Massachusetts court in 2002.
A transwoman sued her employer for discriminating against her after she began
to transition.83 The employer, who referred to the plaintiff as a “cross-dresser” or
“transvestite,” told plaintiff to wear “traditionally female clothing” while at
work84 and threatened her with “‘disciplinary action and/or termination’” if she
failed to comply.85 The plaintiff, Allie Lie, continued to wear women’s attire. She
referred to herself as “transgendered” or “transsexual.” The court noted that the
difference in the parties’ language was significant.86 Its explanation of that claim
referred to and quoted DSM-IV:

The term “transsexual” . . . specifically refers to those individuals who
could be diagnosed as having a gender identity disorder (Diagnostic
Code 302.85 [in DSM- IV] when referring to adolescents or adults) under
the rubric provided by the psychiatric community:

Adults with Gender Identity Disorder are preoccupied with their
wish to live as members of the other sex. This preoccupation may be
manifested as an intense desire to adopt the social role of the other
sex or to acquire the physical appearance of the other sex through
hormonal or surgical manipulation. Adults with this disorder are
uncomfortable being regarded by others as, or functioning in society
as, a member of their designated sex.87

Writing for the court, Judge Giles concluded that Lie had “establish[ed] she is a
transsexual, not simply a man who prefers traditionally female attire.”88 Judge
Giles allowed the case to go forward on three of the plaintiff’s four counts.89

In Sundstrom v. Frank,90 plaintiffs, all transgender prison inmates or former

83. Lie v. Sky Publ’g Corp., No. 013117J, 2002 WL 31492397 (Mass. Super. 2002). First,

the plaintiff filed a charge against the defendant with the Cambridge Human Rights Commission.

The Commission found probable cause. Id. at 2.

84. Id. at 1. Lie filed a charge with the Massachusetts Commission Against Discrimination

but later withdrew that charge and brought suit in court. Id. at 3. The defendant fired plaintiff, with

knowledge of her having filed a complaint. Id. at 8.

85. Id. at 2.

86. Id. at 1.

87. Id. at 2 (quoting AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL DISORDERS-FOURTH EDITION (“DSM-IV”), at 533 (1994)).

88. Id. at 2.

89. Id. at 9 (noting that court allowed the defendant’s motion of summary judgement with

regard to one count and denied it with regard to three other counts). No subsequent history has been

reported.

90. Sundstrom v. Frank, 630 F. Supp. 2d 974 (E.D. Wis. 2007). The case, at this stage,

involved various motions by both sides. The plaintiffs sought to exclude certain testimony, and the

defendants sought certain evidentiary rulings.



558 INDIANA LAW REVIEW [Vol. 53:545

inmates,91 relied on DSM-IV’s diagnostic categories despite those categories’
stigmatization of transgender people.92 The plaintiffs brought a civil rights
action93 against prison officials, including prison physicians, claiming that the
officials’ enforcement of a state law that “abruptly terminat[ed] and depriv[ed]
[the prisoners] of medical treatment for their serious health condition, Gender
Identity Disorder (GID),” was unconstitutional.94 A year earlier, the court had
granted a motion by the plaintiffs for a preliminary injunction, enjoining the
prison from terminating hormone therapy for the plaintiffs.95

The plaintiffs sought to exclude testimony from a psychologist, Daniel
Claiborn, who had opined that “GID is not a legitimate health condition, and that
the American Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders (DSM) is not authoritative . . .”96 Dr. Claiborn had stated:

I do not believe the plaintiffs’ transgender situations represent a mental
disorder, a medical condition, or a diagnosable disease requiring
treatment. Thus, I believe, to a reasonable degree of psychological
certainty, that their transgender issues do not result in serious medical
needs. The experts in the field do not view GID as a pathological entity,
and my experience as a therapist, GID evaluator, and student of the
literature all reinforce that the transgender situation is about choices, not
medical necessity. In fact, each transgender individual decides which
options to pursue and how far and how fast to go with regard to these
life-changing options--based on age, physical characteristics, income,
employment, personality, pain tolerance, and desired lifestyle, among
other considerations.97

In response, plaintiffs contended that Dr. Claiborn had himself acknowledged that
he was “‘not an expert on the DSM and its possible political motivations’ nor is
he aware that the revisions to the DSM are based on extensive scientific literature
reviews, scientific data analysis, and scientific research.”98 Nevertheless, Judge
Clevert, writing for the federal district court, denied the plaintiffs’ motion to
exclude Dr. Clairborn’s report, referring, among other matters, to “Dr. Claiborn’s
years of experience [between thirty and fifty] treating transgender patients.” The

91. Kari Sundstrom and Lindsey Blackwell, two of the original plaintiffs, were later

dismissed from the suit after having been released from prison. Id.

92. See supra notes 81 and 82 and accompanying text.

93. Sundstrom, 630 F. Supp. 2d at 977. The case was brought for declaratory and injunctive

relief under 42 U.S.C. § 1983.

94. Id. The relevant state law was WIS. STAT. § 302.386(5m). The Wisconsin Inmate Sex

Change Prevention Act (“Act 105”) precluded the authorization of any state funds or resources “to

provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery.” Fields

v. Smith, 653 F.3d 550, 533 (7th Cir. 2011).

95. Sundstrom, 630 F. Supp. 2d at 977.

96. Id. at 977-78.

97. Sundstrom, 630 F. Supp. 2d at 977.

98. Id. at 980 (internal citations omitted).



2020] PSYCHIATRY IN THE COURTROOM 559

court deemed that experience “significant”9 9 thus denying plaintiffs’ motion to
exclude Dr. Claiborn’s testimony.100

The case went to trial in 2010.101 Despite his approval of Dr. Clairborn’s
testimony, Judge Clevert found that the Wisconsin law that resulted in withdrawal
of treatment for transgender inmates in state prison violated the federal
Constitution’s Eighth and Fourteenth Amendments.102 The court therefore granted
the plaintiffs’ request for a permanent injunction, precluding the state from
withholding medical care needed to respond to the “serious medical condition of
Gender Identity Disorder (GID).”103

The Seventh Circuit affirmed. The circuit court referred to the three plaintiffs’
having been diagnosed with Gender Identity Disorder (“GID”), in conformity
with the DSM-IV-TR diagnostic category:

GID is classified as a psychiatric disorder in the DSM-IV-TR, the current
edition of the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders. Individuals with GID identify
strongly with a gender that does not match their physical sex
characteristics. The condition is association with severe psychological
distress.104

The circuit court, agreeing with the district court, stressed that the Eighth
Amendment’s ban on cruel and unusual punishment precluded a state’s denying
treatment “for the serious medical needs of prisoners.”105 Thus, despite the
stigmatization inherent in DSM-IV’s treatment of gender identity disorder, the
manual proved useful to plaintiffs seeking medical treatment needed to transition
physically.

B. Cases Decided After Publication of DSM-5

Publication of DSM-5, with its revised understanding of gender identity,
facilitated the cause of transgender litigants in a number of contexts. The cases
considered in this Section all involve transgender litigants who relied on “gender
dysphoria” diagnoses, pursuant to DSM-5. The first case involved a successful
claim of employment discrimination. The next two cases considered, respectively,
in subsection (2) and (3) of this Section involved transgender prisoners seeking
fair treatment in prison. The fourth case, considered in subsection (4), involved
transgender litigants who sought health care coverage from Wisconsin’s Medicaid

99. Id. at 977-78.

100. Id. at 983. The court proceeded to reject defendants’ motion to exclude portions of a

report by a psychologist who testified for the plaintiffs. Id. at 987. The court granted plaintiffs’

motion to exclude medical opinions that had been offered by a corrections expert. Id.

101. Fields v. Smith, 712 F. Supp. 2d 830 (E.D. Wis. 2010).

102. Id. 

103. Id. at 869-70. 

104. Id. at 556.

105. Id. (7th Cir. 2011) (citing and quoting Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). 



560 INDIANA LAW REVIEW [Vol. 53:545

program for transgender surgery.
1. Blatt v. Cabella.106—Until recently, transgender litigants seeking civil

rights were precluded from claiming discrimination pursuant to both the
Americans with Disabilities Act (ADA)107 and Section 504 of the Rehabilitation
Act of 1973.108 A window opened for them, however, in 2017. In Blatt v. Cabella,
a federal district court in Pennsylvania re-interpreted ADA and Section 504
exclusions that had blocked transgender people from claiming a disability that
might make them eligible for ADA or Section 504 protection.109

The ADA defines disability as “a physical or mental impairment that
substantially limits one or more major life activities.”110 For transgender litigants,
however, showing that transgender status was a disability pursuant to the ADA
was not possible111 because the ADA contains an exclusion from the definition
of disability that includes “transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders.”112 This exclusion is combined
with others, “compulsive gambling, kleptomania, or pyromania,”113 presenting a
disturbing concatenation of excluded disorders. Similarly, in 1988, a
congressional amendment to the Fair Housing Act excluded transgender status
from protection under the Fair Housing Act and Section 504 of the Rehabilitation
Act.114

These exclusions effectively precluded ADA and Section 504 protection for
people facing discrimination on the basis of transgender status. Yet, in Blatt,115

the court concluded that ‘transsexualism’ was not, per se, a disability pursuant to

106. BLATT V. CABELA’S RETAIL, INC., 2017 U.S. DIST. LEXIS 75665 (E.D. PA. 2017).

107. 42 U.S.C. § 12101 (2020).

108. 29 U.S.C. § 701 (2020).

109. Blatt v. Cabela’s Retail, Inc., 2017 U.S. Dist. LEXIS 75665 (E.D. Pa. 2017).

110. Doe v. Mass. Dep’t of Corr., 2018 U.S. Dist. LEXIS 99925, 13 (D. Mass. 2018) (quoting

and citing 42 U.S.C. §12101(b)(1)). The court noted that because the “definition of disability in

both [acts] is virtually identical[,] . . . “courts routinely apply the same legal analysis in interpreting

claims under both statutes.” Id.

111. In Doe, the federal district court accepted the transgender litigant’s claim that the

treatment she received limited her reproductive capacity (a “major life activity”). Doe v. Mass.

Dep’t of Corr., 2018 U.S. Dist. LEXIS 99925, *14-*15 (D. Mass. 2018). See also Bragdon v.

Abbott, 524 U.S. 624, 639 (1998) (acknowledging that reproduction is a “major life activity for the

purposes of the ADA”).

112. 42 U.S.C. § 12211(b)(1) (2020).

113. 42 U.S.C. §Sec. 12211(b)(2) (2020).

114. Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 6(b)(3), 102 Stat. 1619,

1622 (1988) (codified as a note to 42 U.S.C. 3602); see Kevin M. Barry & Jennifer L. Levi,

Contemporary Issues in Disability Rights Law: The Future of Disability Rights Protections for

Transgender People, 35 TOURO L. REV. 25, 38 (2019) (considering Section 504 exclusion of

transgender status).

115. 2017 U.S. Dist. LEXIS 75665 (E.D. Pa. 2017).



2020] PSYCHIATRY IN THE COURTROOM 561

the ADA but that the ADA exclusion did not cover cases of gender dysphoria.116

The case had been brought by a transgender woman against her employer. The
plaintiff, Kate Lynn Blatt, had been diagnosed with gender dysphoria, delineated
in DSM-5.117 She argued that the employer’s discrimination against her violated
Title VII of the Civil Rights Act of 1964118 and the ADA. The court denied the
employer’s motion to dismiss, concluding that the ADA exclusion did not include
people diagnosed with gender dysphoria and explained that this conclusion
precluded the need to consider the constitutionality of that exclusion: the statute
could be interpreted to exclude many transgender people but not those diagnosed
with gender dysphoria. Here, the court explained that the employer’s
interpretation of gender identity disorders depended on the language in an
outdated edition of the DSM:

Cabela’s suggested interpretation aligns with the . . . definition in the
revised third edition of the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (the current
edition at the time of the drafting of the ADA), where the term gender
identity disorders is defined as broadly encompassing any disorder
essentially marked by “an incongruence between assigned sex . . . and
gender identity.”119

Thus, the court placed significant weight on changes made to the DSM between
DSM-III (relied on by the employer in Blatt v. Cabela) and DSM-5 (current when
the case was decided). The district court denied Cabela’s request to dismiss
Blatt’s ADA claims, thus allowing Blatt to litigate those claims.1 2 0 Before that
could happen, the parties settled the case.121

The decision in Blatt encouraged transgender litigants to challenge
discrimination against them as violative of the ADA and Section 504. In 2019,
two law professors identified fifteen recently decided or pending discrimination
cases commenced by transgender litigants who based ADA or Section 504 claims
on gender dysphoria diagnoses.122 In several of these cases, courts referenced the

116. Id.

117. Id. at *4.

118. See 42 U.S.C. § 2000e (2019). As this article was being prepared for publication, the

Supreme Court decided Bostock v. Clayton County, Ga. 140 S. Ct. 1731, 590 U.S. __ (2020)

(recognizing discrimination against transgender people as sexual discrimination under Title VII).

119. Blatt v. Cabela’s Retail, Inc., 2017 U.S. Dist. LEXIS 75665 at *6 n.1 (E.D. Pa. 2017).

(citing DSM-III at 71).

120. Id. at *11.

121. Barry & Levi, supra note 114, at 54; Jim Vasil, Schuylkill Woman Settles Transgender

Suit Against Cabela’s, WFMZ-TV 69 NEWS (Sep. 27, 2017), wfmz.com/news/area/berks/schuylkill-

woman-settles-transgen der-su it-again st-cabela-s/article_d9048c8d-32b2- 54b4-ad70-

80af69545908.html) [https://perma.cc/N85G-L2AL].

122. Barry & Levi, supra note 114, at 52. Cases in which transgender people challenged

discriminatory practices include three broad types of claims – those involving discrimination (e.g.,

in employment settings), those brought by prisoners, and those relating to “insurance and identity



562 INDIANA LAW REVIEW [Vol. 53:545

DMS-5.
2. Doe v. Massachusetts Department of Correction.—Doe v. Massachusetts

Department of Correction involved a transgender woman in prison for a non-
violent drug offense.123 The Department had housed Jane Doe in a men’s prison
where, her complaint alleged, she suffered a “litany of humiliations and
trauma.”124 Male guards, strip-searching Doe, “groped her breasts.”125 She was
forced to take off all of her clothing “in plain view of other prisoners,” all male;
some of them “made audible sexually suggestive comments about [Doe’s]
body.”126 Male prisoners “gawked at her” when she showered and “harass[ed]”
her in the bathroom.127 Prison guards commented that Doe was “still a man’” and
referred to her and other transgender women as “‘chicks with dicks’ and
‘wannabe women.”128 Further, Doe alleged that some male prisoners “attempted
to physically force themselves on her.”129 Doe alleged discrimination under the
Americans with Disabilities Act (ADA)130 and Section 504 of the Rehabilitation
Act of 1973 (Section 504)131 as well as the Due Process Clauses of the Fourteenth
Amendment of the U.S. Constitution.132

In response to the Department of Correction’s reliance on the provision in the
ADA that excluded “transvestism, . . . [and] gender identity disorder[s]” as
“outside the scope of the statute’s definition of ‘disability,”133 Doe referred to
DSM-5’s treatment of “[g]ender [d]ysphoria” as support for the claim that her
condition involved more than “gender identification.”134 On that basis, Doe
distinguished her condition – gender dysphoria – from the meaning given to
“gender identity disorders” that had been excluded from ADA coverage.135

Further, Doe contended that her condition was not encompassed by the ADA
exclusion because her gender dysphoria did result from “physical
impairments.”136 Doe then argued that if the ADA exclusion did refer to “all
diagnoses of GD [gender dysphoria], it violates the Fourteenth Amendment
because the legislative history of the exclusion demonstrates that it was driven by

documents.” Id. 

123. Id. at *5.

124. Id. at *9.

125. Id. at *9.

126. Id. at *9.

127. Id. at *9.

128. Id. at *10-*11.

129. Id. at *11.

130. 42 U.S.C. § 12101 (2020).

131. 29 U.S.C. § 701 (2020).

132. Doe v. Mass. Dep’t of Corr., 2018 U.S. Dist. LEXIS 99925 at *2 (D. Mass. 2018).

133. Id. at *15 (quoting 42 U.S.C. § 12211(b)(1) (2020)).

134. Id. at *16.

135. Id. at *16.

136. Id. at *16. The ADA exclusion referred to “‘gender identity disorders not resulting from

physical impairments.” 



2020] PSYCHIATRY IN THE COURTROOM 563

animus toward transgender persons.”137

The district court – which reviewed DSM-5’s understanding of gender
dysphoria at some length – agreed.138 The court concluded that the ADA and
section 504 exclusions did not include gender dysphoria.139 The court referred to
the definition of “gender identity disorders” in DSM-IV and compared that with
the provision in DSM-5 that “the diagnosis of GD . . . requires attendant disabling
physical symptoms, in addition to manifestations of clinically significant
emotional distress.”140 Even more, the district court explained that were the ADA
exclusion to be read to “bar Doe’s claim,” the exclusion would seem to violate
the Fourteenth Amendment’s Equal Protection Clause.141

Deciding that Jane Doe was likely to “prevail on her ADA and Equal
Protection claims,” the district court denied the Department’s Motion to
Dismiss.142 A few months after the court rendered this decision, Jane Doe was
transferred to a woman’s prison facility. In the same year, both Connecticut and
Massachusetts promulgated laws that mandated that result for transwomen in
prison.143

3. Edmo v. Idaho Department of Correction.144—Adree Edmo, a transwoman,
brought suit against the Idaho Department of Corrections. Imprisoned in 2012,
Edmo was diagnosed with gender dysphoria two months later by a Department
of Corrections psychiatrist.145 Edmo was treated with hormone therapy,146 but the
treatment did not relieve her gender dysphoria. Twice during the next several
years she attempted self-castration.147 Her continued suffering led her to seek
gender confirming surgery. When the correctional department refused to provide
her with that remedy for her condition, Edmo brought suit.148

After careful review of expert testimony and professional texts about gender
dysphoria, the Idaho federal district court concluded that the Department’s refusal
to provide gender conforming surgery for Edmo violated the Eighth

137. Id. at *16-17.

138. Id. at *6-7; *17-18.

139. Id. at *17-18.

140. Id. at *18.

141. Id. at *19. The court relied on “the doctrine of constitutional avoidance” which requires

a court, seeing the possibility of a statute’s invalidation pursuant to the U.S. Constitution to seek

a statutory construction that would avoid the constitutional challenge. Id. at 18-19.

142. Id. at *32-33. The court directed the parties to discuss relief that could be offered to Jane

Doe without court intervention. Id.

143. Barry & Levi, supra note 114, at 61 (citing MASS. GEN. LAWS ch. 127, § 32A (2018) and

CONN. GEN. STAT. § 18- 81ii (2018)).

144. Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1103 (D. Idaho 2018); aff’d sub

nom. Edmo v. Corizon, 935 F.3d 757 (9th Cir. 2019).

145. 358 F. Supp. 3d at 1109

146. Id.

147. Id.

148. Id. at 1103.



564 INDIANA LAW REVIEW [Vol. 53:545

Amendment.149 That Amendment includes a right enjoyed by prisoners to
satisfactory medical treatment while in prison.150 That right pertains, however,
only if the prisoner’s medical needs are “serious.”151 The court found that Edmo’s
condition was adequately serious and explained that a prisoner would have a
constitutional right to care if the prison failed

to treat a prisoner’s condition [that] could result in further significant
injury or the unnecessary and wanton infliction of pain [;] . . . [t]he
existence of an injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of a medical
condition that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain. . . .152

In its “findings of fact” related to the seriousness and character of gender
dysphoria, the district court relied on DSM-5, summarizing the manual’s
presentation of gender dysphoria.153 The court further summarized guidelines for
treatment of gender dysphoria in the World Professional Association of
Transgender Health (WPATH).154 These texts, along with extensive expert
testimony, supported the court’s conclusion that Edmo suffered from gender
dysphoria and that “gender dysphoria is a serious medical condition recognized
by the DSM-5.”155 In light of these conclusions and the “Standards of Care”
recommended by WPATH, the district court ordered defendants to provide
gender conforming surgery to Edmo.156

The Ninth Circuit similarly relied on the discussion of gender dysphoria in
DSM-5 and on treatment options presented in WPATH.157 The circuit court
tracked DSM-5’s delineation of the features of gender dysphoria, noting that
DSM-5 required that an individual with gender dysphoria experience “‘clinically
significant distress.’”158 The State did not deny that Edmo had gender dysphoria,
but it contended that the hormonal treatments that Edmo had received constituted
“adequate and medically acceptable care.”159 The circuit court, echoing the

149. Id. at 1123 (quoting and citing Estelle v. Gamble, 429 U.S. 97 (1976)).

150. 58 F. Supp. 3d at 1123.

151. Id.

152. Id. (citing and quoting McGuckin v. Smith, 974 F. 2d 1050, 1059-60 (9th Cir. 1992)

(brackets and ellipses in original)).

153. Id. at 1110-11.

154. Id. at 1111.

155. Id. at 1124.

156. Id. at 1129. The Ninth Circuit affirmed the district court’s injunction in Edmo’s favor but

vacated it with regard to certain individual defendants and a private company that had entered into

a contract to provide health care to prisoners. 

157. Edmo v. Corizon, Inc., 935 F.3d 757, 768-71 (9th Cir. 2019).

158. Id. at 769 (quoting and citing DSM-5 at 452). The court further relied on WPATH’s

Standards of Care’s “‘guidelines for treatment of individuals with gender dysphoria’” Id. (quoting

Edmo, 358 F. Supp. 3d at 1111).

159. Id. at 786.



2020] PSYCHIATRY IN THE COURTROOM 565

district court, disagreed:

The district court permissibly credited the opinions of Edmo’s experts
that GCS [gender confirmation surgery] is medically necessary to treat
Edmo’s gender dysphoria and that the State’s failure to provide that
treatment is medically unacceptable. Edmo’s experts are well-qualified
to render such opinions . . . . On the other side of the coin, the district
court permissibly discredited the contrary opinions of the State’s treating
physician and medical experts. Those individuals lacked expertise and
incredibly applied (or did not apply, in the case of the State’s treating
physician) the WPATH Standards of Care. . . . The credited testimony
establishes that GCS is medically necessary.160

Thus, the DSM-5 categorization of “gender dysphoria” as a mental disorder
served Edmo as she argued that for her, surgery was medically necessary. An
arguably similar diagnosis for other transgender litigants could, however, prove
detrimental. For transgender prisoners who do not suffer from dysphoria, gender
confirming surgery—even if desired—will likely not be deemed medically
necessary.161

At about the same time, the Trump administration declared that transgender
individuals diagnosed with gender dysphoria are “‘unfit’” to serve in the military.
That declaration was justified by reference to the “serious medical need” of
transgender people.1 6 2 This challenged the ideological and political aims that
undergirded construction of DSM-5’s “gender dysphoria” diagnosis.163

4. Flack v. Wisconsin Department of Health Services.164—Cody Flack, a

160. Id. at 787. In November 2019, the district court considered and denied the defendants’

expedited motion to stay but deferred establishing a deadline for aspects of Edmo’s treatment.

Edmo v. Idaho Dep’t of Corr., No. 1:17-CV-00151-BLW, 2019 WL 5865620, at *1 (D. Idaho Nov.

8, 2019).

161. See William J. Rold, Federal Judge in Idaho Grants Preliminary Injunction for

Confirmation Surgery for Transgender Inmate, 2019 LGBT L. NOTES 7 (2019).

162. Id. 

163. The decision to rename gender identity disorder as gender dysphoria aimed, in part at de-

stigmatization. That is a laudable goal, but the social goal and the new label may seem incongruous

in the context of identifying a medical diagnosis. Wakefield, supra note 44, at 146. Further, the

author commented that:

[W]hen homosexuality was changed to ego-dystonic homosexuality, that portended the

elimination of homosexuality completely form the Manual because logically the fact

that one feels dysphoric about something that in itself is not disordered does not

constitute a mental disorder unless it reaches major depression levels of severity. The

same two-step process of depathologization may be occurring to gender identity

disorder.

Id. 

164. Flack v. Wis. Dep’t of Health Servs. 328 F. Supp. 3d 931 (W.D. Wis. 2018). See also

Flack v. Wis. Dept Health Servs., 331 F.R.D. 261 (W.D. Wis. 2019) (related case seeking to name

additional plaintiffs and asking the district court to certify a class; the court granted each of



566 INDIANA LAW REVIEW [Vol. 53:545

transman, and Sara Makenzie, a transwoman, sued the Wisconsin Department of
Health Services, challenging the exclusion of transgender surgery from the state’s
Medicaid program.165 Both plaintiffs had been diagnosed with gender dysphoria.
The court quoted DSM-5’s definition of the condition and noted that, “if left
untreated,” gender dysphoria “can cause adverse symptoms.”166

Tracking the DSM-5’s consideration of gender dysphoria, the court
reported: Untreated, gender dysphoria can result in psychological
distress: “preoccupation with cross-gender wishes often interferes with
daily activities.” [citing DSM-5] Impairment—such as the development
of substance abuse, anxiety and depression—is also a possible
“consequence of gender dysphoria.” [citing DSM-5] Finally, gender
dysphoria “is associated with high levels of stigmatization,
discrimination, and victimization, leading to negative self-concept,
increased rates of mental disorder comorbidity, school dropout, and
economic marginalization, including unemployment, with attendant
social and mental health risks. . . .” [citing DSM-5]167

In the same vein, the court, again quoting DSM-5, reported that people “with
gender dysphoria ‘are at increased risk for suicidal ideation, suicide attempts, and
suicides.’”168 In short, DSM-5’s categorization of gender dysphoria as a mental
disorder was essential to the court’s conclusion that the transgender plaintiffs in
the case would “suffer irreparable harm” without injunctive relief.169 In
consequence, the court enjoined the state from enforcing the Medicaid exclusion
of transgender surgery against either of the transgender plaintiffs in the case.170

Without DSM-5’s discussion of gender dysphoria, the Flack plaintiffs might well
have fared less successfully in this litigation.

III. TERMINATION OF PARENTAL RIGHTS AND THE DSM

This Part summarizes the law’s understanding of parentage and the situations
in which parents may be at risk for losing custody of, or more onerously, parental
rights to, their children. It then turns to the implications of a parent’s being
diagnosed with a mental disorder in termination cases. It considers those

plaintiffs’ motions); Flack v. Wis. Dep’t Health Servs., No. 18-CV-309-WMC, 2019 WL 2151702,

at *1 (W.D. Wis. May 17, 2019) (denying defendants’ motion to stay proceedings); Flack v. Wis.

Dep’t Health Servs., 395 F. Supp. 3d 1001 (W.D. Wis. 2019) (granting plaintiffs summary

judgement and holding that Medicaid provision violated Affordable Care Act, Medicaid, and Equal

Protection Clause).

165. Flack, 328 F. Supp. 3d 931, 934-35 (W.D. Wis. 2019) Plaintiffs also sought Medicaid

coverage for drugs related to the surgery for which they were seeking coverage. Id.

166. Id. at 935.

167. Id.

168. Id. at 936.

169. Id. at 942.

170. Id. at 955.



2020] PSYCHIATRY IN THE COURTROOM 567

implications with a set of California cases in which judges invoked the DSM in
responding to claims of parental substance abuse. Finally, this Part turns to a
dispute between a surrogate mother and intending parents in which psychiatric
experts disagreed about the relevance of DSM diagnostic categories to an
assessment of the surrogate’s mental health.

A. Deprivation and Uncertainty

Parents have wide scope to decide how to raise their children. The state rarely
interferes with a parent’s right to make basic decisions for his or her child unless
the parent’s choices endanger the child.171 But when a child is found to be
“abused, neglected or abandoned,”172 the state may deprive the parent or parents
of the child’s custody, at least temporarily.173

The termination of parental rights174 can involve a major life deprivation for
parents – and for children, as well, even if the termination is necessary to
safeguard the children’s basic safety and welfare. Thus, the U.S. Supreme Court
has concluded that statutory grounds for termination must be proven by clear and
convincing evidence, a stricter standard than the preponderance of the evidence
standard generally relied on in civil litigation.175 Grounds vary among the states.
This Part focuses broadly on cases in which a parent’s inability to provide for a
child is the presumptive result of that parent’s “mental disability, physical
disability, substance abuse, incarceration or institutionalization.”176

More specifically, the following sections of this Part consider cases in which
courts predicated the termination of parental rights or considered terminating
parental rights on the basis of a finding of a parental mental disorder.177 Section

171. 46 AM. JUR. Proof of Facts 3d 231, § 2 (originally published in 1998) [hereinafter Proof

of Facts].

172. Id.

173. If the problem that created the need for a child’s removal cannot be fixed, the state may

commerce proceedings to terminate parental rights. Id.

174. Charisa Smith defines the termination of parental rights as “the process whereby courts

force biological parents to sever their legal ties with their children in favor of upholding the ‘child’s

best interests’ by imbuing other, allegedly more well-suited individuals with those parental rights.”

Charisa Smith, The Conundrum of Family Reunification: A Theoretical, Legal, and Practical

Approach to Reunification Services for Parents with Mental Disabilities, 26 STAN. L. & POL’Y REV.

307, 309 (2015) [hereinafter Smith, The Conundrum of Family Reunification].

175. Santosky v. Kramer, 455 U.S. 745 (1982).

176. Proof of Facts, supra note 171, at § 3. “Mental disability” refers to mental illness or

intellectual disability. Id. at § 5-6.

177. The DSM uses the term “mental disorder,” not “mental illness.” DSM-5 defines “mental

disorder” as follows: 

A mental disorder is a syndrome characterized by clinically significant disturbance in

an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in

the psychological, biological, or developmental processes underlying mental

functioning. Mental disorders are usually associated with significant distress or



568 INDIANA LAW REVIEW [Vol. 53:545

B and C of this Part focus, in particular, on termination cases involving claims of
parental substance abuse (defined as a mental disorder in DSM-5).178 In assessing
that, courts routinely need guidance, especially insofar as many state statutes refer
to “mental illness” but do not provide a definition of the term.179 Further, Section
D of this Part considers a court case involving surrogate motherhood and
examines a dispute among experts about the implications of a DSM diagnosis for
the surrogate mother.

B. Parents Diagnosed with Mental Disorders in Termination
of Parental Rights Cases

For parents facing termination of parental rights and diagnosed with mental
disorders, a court’s understanding of a psychiatric diagnosis and its relevance or
not to the parents’ capacity to care for their children can have far-reaching
consequences. Even the fact that a parent has been diagnosed with a mental
disorder, without more information, may bias judges handling a termination case
to favor a termination order rather than to support continuing efforts to effect
family reunification.

That sort of bias is not unique to judges or to termination cases. As a general
matter, unrecognized or unacknowledged biases about mental illness can have
far-reaching consequences for society since millions of adults in the U.S.
“experience mental illness” each year.180 The NIH has estimated that almost 12

disability in social, occupational, or other important activities. An expectable or

culturally approved response to a common stressor or loss, such as the death of a loved

one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or

sexual) and conflicts that are primarily between the individual and society are not

mental disorders unless the deviance or conflict results from a dysfunction in the

individual, as described above.

DSM-5, supra note 13, at 20.

178. See, e.g., DSM-5, supra note 13, “Substance-Related and Addictive Disorders,” at p. 481

et seq. (2013).

179. Some states do offer definitions. In New York, for instance, mental illness is defined, in

the context of termination of parental rights cases as:

[A]n affliction with a mental disease or mental condition which is manifested by a

disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that

if such child were placed in or returned to the custody of the parent, the child would be

in danger of becoming a neglected child as defined in the family court act.

NY Soc. Serv. § 384-b (2019). Substance abuse (referred to in DSM-5 as a “substance use

disorder”) is included in the Diagnostic and Statistical Manual as a psychiatric disorder. See, e.g.,

DSM-5, supra note 13, “Substance-Related and Addictive Disorders,” at p. 481 et seq. (2013).

180. Mental Health by the Numbers, NAMI, https://www.nami.org/learn-more/mental-health-

by-the-numbers [https://perma.cc/Y9BQ-K5SH] (last visited Sept. 4, 2019); Transforming the

Understanding and Treatment of Mental Illnesses, Prevalence of Any Mental Illness, NIH,

https://www.nimh.nih.gov/health/statistics/mental-illness.shtml#part_154785 [https://perma.cc/

TX4L-7Y73] (reporting 46.6 million adults in U.S. with a mental illness in 2017; that was



2020] PSYCHIATRY IN THE COURTROOM 569

million adults experienced “serious mental illness” in 2017.181 Even the more,
bias against those diagnosed with mental illnesses can have unfortunate
consequences. Overzealous efforts to protect children from parents diagnosed
with mental illnesses can undermine the possibility of successful family
preservation and reunification.182

1. Parental Rehabilitation.—Termination proceedings are rarely simple.
Their success depends on a court’s ability to understand and assess a child’s
needs and interests and parental rights and capacities. Further, in cases in which
parents have been diagnosed with mental illness, good results for those involved
also depend on the ability of courts to comprehend psychiatric testimony and
DSM diagnostic categories, while interpreting that evidence in light of legal
processes and family law more than in light of clinical psychiatric practice.

Judges responding overzealously to diagnoses of parental mental illness may
not focus adequately on the positive potential of rehabilitative services.183 Serious
mental illness can interfere with a parent’s ability to care for his or her child, but
it is not necessarily determinative of a poor outcome.184 Adequate treatment and
social services are crucial as are reunification services, though admittedly not all
are successful:

There are numerous ways that parents with mental disabilities can treat
and manage their illnesses, improve their parenting skills, function
successfully in society, and create safe and loving homes in which to
regain and raise their children. Yet the care with which reunification
services are statutorily and financially prioritized, publicly and privately
administered, and inter-disciplinarily designed is highly determinant of
any family’s fate.185

2. Best Interests of Children, Psychiatric Expertise, and the DSM.—
Traditionally, court orders resulting in the termination of parental rights have
depended, both as a matter of statutory law and judicial practice, on a standard
aimed at assessing the “best interests” of the child or children involved. In
significant part, those assessments are subjective. And for judges, they can be
challenging.

The best-interest standard is venerable but also aspirational. In practice, it
often provides a murky guide for judges determining a child’s custodial

equivalent to 18.9 percent of the population 18 or older in the U.S.) (last visited Sept. 4, 2019)

[https://perma.cc/S39Q-F6NB].

181. Transforming the Understanding and Treatment of Mental Illnesses, Prevalence of Any

Mental Illness, NIH, https://www.nimh.nih.gov/health/statistics/mental-illness.shtml#part_154785

(last visited Sept. 4, 2019) [https://perma.cc/S39Q-F6NB].

182. See infra and accompanying text (noting that a significant majority of adults with mental

illness diagnoses have lost custody in termination cases).

183. Smith, The Conundrum of Family Reunification, infra note 176, at 310.

184. Id. at 315-17.

185. Id. at 310.



570 INDIANA LAW REVIEW [Vol. 53:545

arrangements or legal parentage.186 Its “vagueness and indeterminacy . . . give[]
judges broad discretion to consider almost any factor thought to be relevant . . . .”187

Statutory guidelines may delineate factors relevant to a child’s welfare, but such
guidelines do not generally inform the process of determining a child’s interests
adequately.188 The indeterminacy of the best interest standard reinforces the need
for judges to rely on expert testimony.

In cases in which a parent has been diagnosed with a mental illness, including
substance abuse disorder, wise judicial assessments depend on judges’
understanding the implications of such diagnoses and the potential for
rehabilitative efforts to provide a basis for family reunification. In this light, it is
incumbent on the judicial system to provide judges handling custody and
termination cases with information and guidelines about the implications of
various diagnoses of mental illness. Appropriate responses to such diagnoses
depend on judges’ understanding the likely scope of a diagnosis and its
implications for the likelihood that a parent provided with competent
rehabilitation services will be able successfully to sustain the parent-child
relationship. Testimony from psychologists and psychiatrists as well as
familiarity with DSM diagnostic categories can offer useful guideposts to
judges.189

186. Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of

Indeterminacy, 39 L. & CONTEMP. PROBS. 226 (1975).

187. Elizabeth S. Scott & Robert E. Emery, Gender Politics and Child Custody: The Puzzling

Persistence of the Best-Interests Standard, 77 L. & CONTEMP. PROBS. 69 (2014). This limitation

may explain the standard’s survival over time. Even as the perseverance of the best-interest

standard suggests that the standard offers a firm anchor to courts making decisions about a child’s

custody and/or parentage, the standard’s flexibility has provided for shifting understandings over

time of a child’s best interest. That flexibility has facilitated the standard’s survival. It has

facilitated decisions grounded on a judge’s individual insights, fueled by shifting socio-cultural

preferences. See Janet L. Dolgin, Why Has the Best Interest Standard Survived?: The Historic and

Social Context, 15 CHILDREN’S LEGAL RIGHTS J. (1996) (excerpted in DAVID RAY PAPKE ET AL.,

LAW AND POPULAR CULTURE (2d ed., 2007)).

188. The limitations of statutory guidelines in cases involving children’s best interests may

encourage judges to look to the testimony of experts for assessing a child’s best interests, a process

likely to include assessments of a child’s psychological status and needs and of the psychological

status of the child’s parents.

189. Judges must be alert to the nuances of particular mental health diagnoses. Judges should,

for instance, consider the possibility that expert testimony asserting that a parent facing termination

of parental rights is mentally ill may create a false sense that science supports terminating parental

rights, and such testimony may buttress courts’ ill-formed conclusions about a child’s safety and

welfare. Susan Kerr, The Application of the Americans with Disabilities Act to the Termination of

the Parental Rights of Individuals with Mental Disabilities, 16 J. CONTEMP. HEALTH L. & POL’Y

387, 388 (2000) (noting that people diagnosed “with mental disabilities consistently have their

parental rights terminated and routinely lose their appeals.”). Kerr includes within the label

“mentally disabled” conditions “such as mental retardation, manic depression and schizophrenia.”

Id. at 404.



2020] PSYCHIATRY IN THE COURTROOM 571

To some extent, in practice, constitutional law precludes courts from relying
on broad presumptions (including presumptions about mental illness) to justify
terminal of a parent’s rights.190 It may be “more convenient to presume than to
prove” various notions relevant to the retention of parental rights.191 But in cases
threatening a parent with the termination of his or her parental rights,
convenience must be sacrificed to Due Process.192 Thus, psychiatric diagnoses in
cases involving the potential termination of parental rights are rarely
determinative, without more.193

Further, the Constitution precludes states from identifying parents as unfit in
the absence of “fair procedures.”194 Noting that “medical and psychiatric
testimony” in termination cases does not generally offer certainty, the Court in
Stanley v. Illinois concluded that a state cannot deprive a parent of his or her
parental rights without “clear and convincing evidence” of that parent’s
unfitness.195 The next Section of this Article examines a series of cases in which
the mental health of parents facing termination proceedings has played a
significant role in directing judicial conclusions about the best interests of the
child or children involved.

C. Parents’ Mental Health Status: Substance Use Disorder

This section focuses on a set of parental termination cases decided in
California during the first two decades of the twenty-first century. In these cases,
courts relied on DSM diagnostic categories in order to discern the implications
of parental substance abuse (categorized among DSM mental disorders). DSM
diagnostic criteria for identifying substance abuse are more straightforward than
diagnostic criteria delineated with regard to diagnosis of most mental disorders.196

More specifically, substance abuse, as described through reference to DSM
criteria, can be assessed fairly easily by judges in light of the facts of specific
cases. However, the process is not always straightforward. Judges may shape
their conclusions about parental substance abuse through reference to the DSM

190. Stanley v. Illinois, 405 U.S. 645, 652-53 (1972) (precluding reliance on father’s not

having married children’s mother to deprive him of paternal rights). In cases challenging a parent’s

parental rights, presumptions should not replace individual analysis:

Procedure by presumption is always cheaper and easier than individualized

determination. But when, as here, the procedure forecloses the determinative issues of

competence and care, when it explicitly disdains present realities in deference to past

formalities, it needlessly risks running roughshod over the important interests of both

parent and child. It therefore cannot stand.

Id. at 656-57 (footnote omitted).

191. Id. at 658.

192. Id.

193. Id. at 642-57.

194. Santosky v. Kramer, 455 U.S. 745, 754 (1982).

195. Id. at 769-70.

196. See, e.g., DSM-5, supra note 13, at 481-589.



572 INDIANA LAW REVIEW [Vol. 53:545

or they may support or justify pre-formed conclusions through such references.
It may be impossible in particular cases to distinguish one of these processes from
the other.

According to DSM-5 “the diagnosis of a substance use disorder is based on
a pathological pattern of behaviors related to use of the substance.”197 Diagnosis
depends on several sets of criteria.198 The first relates to “impaired control.” In the
most “severe” cases this may mean that “virtually all of the individual’s daily
activities revolve around the substance.”199 The second group of criteria involves
“social impairment.”200 This may involve “a failure to fulfill major role
obligations at work, school, or home.”201 The third group includes “risky use of
the substance” which “may take the form of recurrent substance use in situations
in which it is physically hazardous.”202 The final group of criteria delineated in
DSM-5’s discussion of substance use disorder are those categorized as
“pharmacological.”203

The cases considered in this Section involve possible dependency jurisdiction
for a child or children whose parents were alleged to have a substance use
disorder.204 These cases suggest an evolving judicial reliance on DSM
categorizations and, then, a partial retreat from such reliance. The Section reviews
cases that illustrate both responses.

1. Jennifer A. v. Superior Court.205—In 1987 the California legislature
amended state law so that the child of a parent unable to care for his or her child
as a result of substance abuse became eligible for dependency jurisdiction.206 The
legislature did not define “substance abuse.” Further, the legislative history did
not help in the effort to discern the term’s definition for purposes of the

197. DSM-5, supra note 13, at 483.

198. Id.

199. Id.

200. Id.

201. Id.

202. DSM-5, supra note 13, at 483. Risky use may also involve a person’s continuing

“substance use despite knowledge of having a persistent or recurrent physical or psychological

problem that is likely to have been caused or exacerbated by the substance.” In this situation, the

person with a substance use disorder will fail “to abstain from using the substance despite the

difficulty it is causing.”

203. DSM-5, supra note 13, at 484. The pharmacological criteria include “tolerance” for the

drug and the “withdrawal syndrome” which “occurs when blood or tissue concentrations of a

substance decline in an individual who had maintained prolonged heavy use of the substance.”

204. “Substance Use Disorder” is the phrase used in DSM-5, see “Substance Use Disorders,”

DSM-5, supra note 13, at 483. DSM-5 does not use the term “addiction” in reference to diagnoses;

see also Mace Beckson & & Douglas Tucker, Commentary: Craving Diagnostic Validity in DSM-5

Substance Use Disorders, 42 J. AM. ACAD. PSYCHIATRY L. 453, 456 (2014).

205. Jennifer A. v. Superior Court, 117 Cal. App. 4th 1322, 1326 (Cal. Ct. App. 2004).

206. CAL. WELF. & INST. CODE § 300 (Deering, current through Chapter 1 of the 2020 Regular

Session).



2020] PSYCHIATRY IN THE COURTROOM 573

application of the relevant provision of state law.207

In Jennifer A. v. Superior Court, a state appellate court relied on the DSM for
a definition for “substance abuse,” as used in state statutory law.208 This provided
one model for future courts asked to assess claims of parental substance abuse.
Jennifer A’s two sons, ages seven and three, were removed from her custody in
2002 after she went to work, leaving the two boys alone in a hotel room. Jennifer
petitioned for relief from a juvenile court order that set a hearing date to consider
termination of Jennifer’s parental rights.209 That order was grounded on Jennifer’s
having missed a number of required drug tests and having tested positive for
marijuana twice.

The order perplexed the appellate court insofar as Jennifer, despite her use of
marijuana, seemed not to have a substance abuse problem, and her assigned social
worker described Jennifer generally to exhibit good parenting skills.210 The court
acknowledged that Jennifer had missed a number of drug tests. That and two
positive tests for marijuana led to some concern.2 11 Yet, the court concluded that
the children’s health and welfare would not be jeopardized were they to be
returned to their mother’s custody.212 In reaching that conclusion, the court relied
on the description of substance abuse in DSM-IV:

No evidence was presented to establish Mother displayed clinical
substance abuse, that is, “[a] maladaptive pattern of substance use
leading to clinically significant impairment of distress . . . occurring
within a 12-month period.” (Am. Psychiatric Assn. Diagnostic &
Statistical Manual of Mental Disorders (4th ed. 2000) p. 199.) No
medical professional diagnosed Mother as having a substance abuse
problem[.]213

Had Jennifer’s substance use been shown to harmonize with DSM-IV’s
characterization of “clinical substance abuse,” she might well not have regained
custody of her boys. In the absence of evidence that DSM-IV’s description of a
substance use disorder applied to Jennifer, the appellate court directed the lower
court to return Jennifer’s boys to her.214

2. In re Drake M.215—In In re Drake M., a California appellate court,
following the model in Jennifer A., looked to the DSM-IV for an appropriate

207. In re Drake M., 211 Cal. App. 4th 754, 765 (Cal. Ct. App. 2012).

208. Jennifer A., 117 Cal. App. 4th at 1322.

209. Id. at 1326.

210. Id. at 1327.

211. Id. at 1344.

212. Id. at 1346.

213. Jennifer A., 117 Cal. App. 4th at 1346 (citing DSM-IV, supra note 11).

214. Id. at 1347. Return of Jennifer’s children was made conditional on the absence at the

hearing of new evidence suggesting that Jennifer was unlikely to provide her young sons with

adequate parenting. Id.

215. In re Drake M., 211 Cal. App. 4th at 754.



574 INDIANA LAW REVIEW [Vol. 53:545

definition of parental substance abuse.216 The case involved review of a trial court
decision that found Drake M., aged fourteen months, at risk because of his
father’s use of medical marijuana.217 The case was the first in California that
questioned a child’s custody on the basis of a parent’s use of medical marijuana
after the state legalized marijuana for medical use.218

Paul M., Drake’s father, explained that his use of marijuana was medicinal,
aimed at treating arthritic pain, presumably the result of his work as a cement
mason.219 That work demanded that he spend several hours each day on his
knees.220 Despite a report that noted the father’s employment, the child’s over-all
health, and adequate support, the DCFS filed a petition, alleging that Paul M.’s
use of “legal marijuana” interfered with his capacity adequately to protect
Drake.221 The trial court permitted Paul M. to retain custody of the child but it
required Paul to “submit to random drug testing and to attend parenting courses
and drug counseling sessions.”222 The father appealed.

The appellate court concluded that the trial court had confused the
implications of “substance use” and “substance abuse.”223 The trial court
acknowledged that the use of marijuana by Paul M. was medicinal and, therefore,
“legal.”2 24 Yet, the court focused on the governing law which provided for
dependency jurisdiction in light of “‘the inability of the parent or guardian to

216. Id. at 766.

217. Id. at 757; see also id. at 762 (noting dependency findings with regard to Drake M.’s

mother were not challenged and would, the court stated, “continue to support dependency

jurisdiction”).

218. Marka B. Fleming & Gwendolyn McFadden-Wade, The Unthinkable Choice, 25 B.U.

PUB. INT. L.J. 299, 313 (2016); see In re Drake M., 211 Cal. App. 4th at 758, n.5. When still a baby,

Drake was referred to the Department of Children and Family Services (DCFS) At that time, the

Department found no evidence of abuse and noted that the child “‘appeared to be reaching

developmental milestones.’” Id. Drake M. was nine-months old when his case was first referred to

the Department of Children and Family Services (DCFS). The appellate court decision does not

identify the referring party. The juvenile court hearings are not available. The referring party

expressed concern about the child’s safety because of the parents’ use of marijuana and the

mother’s history of drug abuse. The referring party apparently noted as well that the mother had

“failed to reunify” with an older child whose case had been brought to the DCFS. Id. DCFS

investigated the allegations. See generally id.

219. Id. at 757-58, 760.

220. Id. at 760.

221. Id. at 758.

222. Id. at 762. The trial court allowed Drake’s mother to remain in the home on condition that

she submitted to weekly drug tests and that those tests showed that she was not using drugs.

Additionally, the court conditioned the mother’s remaining in the home with Drake on her attending

prescribed counseling programs and taking medication that had been prescribed for her. In short,

“[f]amily reunification services were ordered for mother. Family maintenance services were

ordered for father.” Id.

223. In re Drake M., 211 Cal. App. 4th at 764.

224. Id. at 763.



2020] PSYCHIATRY IN THE COURTROOM 575

provide regular care for the child due to the parent’s substance abuse.’”225 That
provision demanded evidence that the parent abused drugs in order to sustain
dependency of the child. The requirement led the court to consider the statutory
meaning of the phrase “substance abuse.” In attempting to discern that, the
appellate court followed the model crafted in Jennifer A. v. Superior Court.226 As
in Jennifer A., the Drake court relied on DSM-IV-TR, the 2000 revised edition
of DSM-IV.227

The appellate court in Drake M. concluded that a finding of parental
substance abuse for the purpose of assuming dependency jurisdiction must
depend either on the diagnosis of substance abuse by a medical professional or
on a showing that the parent228 was a substance abuser through reference to the
definition of “substance abuse” in DSM-IV-TR.229 Thus, the court defined the
statutory term “substance abuse” in tune with the definition in the most recent
edition of the DSM at the time of the decision. This approach, following that of
Jennifer A., placed significant weight on DSM diagnostic categories in
interpreting state law which provided that a child “may be “adjudge[d] . . . a
dependent child of the court”230 if a child’s parent or guardian was unable “to
provide regular care for the child due to the parent’s or guardian’s mental illness,
developmental disability, or substance abuse.”231

The court concluded that both DCFS and the trial court had “confused the
meanings of the terms ‘substance use’ and ‘substance abuse.’”232 Tracking
relevant provisions in DSM-IV-TR, the court explained that the components of

225. Id. at 757 n.2.

226. Jennifer A., 117 Cal. App. 4th at 1322.

227. DSM-5 appeared in 2013, a year after the decision in Drake M. In re Drake M., 211 Cal.

App. 4th at 765. DSM-5 appeared in 2013, a year after the decision in Drake M. Drafts of its text

had been made available earlier. The court relied on DSM-IV-TR (rev. ed. 2000).

228. Id. at 766. This conclusion included guardians as well as parents.

229. Id. The court quoted the “full” DSM definition of “substance abuse,” adding to the part

of the definition quoted in Jennifer A. See supra note 217 and accompanying text. See infra, note

237 and accompanying text.

230. CAL. WELF. & INST. § 300.

231. CAL. WELF. & INST. § 300. Yet, pursuant to the statute, a parent’s drug use that

harmonized with that the relevant DSM diagnostic category (or that was diagnosed by a medical

professional as a substance use disorder) was not sufficient for asserting dependency jurisdiction.

In addition to a finding of a parental substance abuse (or other presumptively disordered states),

the court had to find that the parent was unable to provide adequate care for his or her child. 

232. 211 Cal. App. 4 at 764. Further, the court explained, a finding of dependency jurisdiction

based on

‘the inability of the parent or guardian to provide regular care for the child due to the

parent’s . . . substance abuse’ must necessarily include a finding that the parent at issue

is a substance abuser. We have previously stated that without more, the mere usage of

drugs by a parent is not a sufficient basis on which dependency jurisdiction can be

found.

Id. at 764.



576 INDIANA LAW REVIEW [Vol. 53:545

the definition of substance abuse involved:

[a] maladaptive pattern of substance use leading to clinically significant
impairment or distress, as manifested by one (or more) of the following,
occurring within a 12–month period: [¶] (1) recurrent substance use
resulting in a failure to fulfill major role obligations at work, school, or
home (e.g., repeated absences or poor work performance related to
substance use; substance-related absences, suspensions, or expulsions
from school; neglect of children or household)[; ¶] (2) recurrent
substance use in situations in which it is physically hazardous (e.g.,
driving an automobile or operating a machine when impaired by
substance use)[; ¶] (3) recurrent substance-related legal problems (e.g.,
arrests for substance-related disorderly conduct)[; and ¶] (4) continued
substance use despite having persistent or recurrent social or
interpersonal problems caused or exacerbated by the effects of the
substance (e.g., arguments with spouse about consequences of
intoxication, physical fights).233

Considering each element delineated in the DSM-IV-TR, the court noted that
Paul had fulfilled his obligations at work, had received a physician’s
recommendation for use of marijuana, and had had no legal problems related to
substance abuse. There was no evidence “despite DCFS’s allegations,” that Paul
had operated a vehicle while affected by marijuana or that he suffered from
“recurrent social or interpersonal problems caused or exacerbated by
marijuana.”234 In short, the court concluded that pursuant to the DSM-IV-TR
definition of substance abuse, the DCFS had not provided evidence sufficient to
show that Paul had a substance abuse problem.235 Moreover, the court concluded
that Drake did not face a “risk of harm” from his father’s use of marijuana.236

In both Jennifer A.237 and Drake M.238 California appellate courts looked to
the DSM for a definition of substance abuse. In each case, the relevant court
found that the parent at risk of losing parental rights did not fit the DSM criteria
for substance use disorder. Thus, in each case the lower court ruling against the

233. In re Drake M., 211 Cal. App. 4th 754, 766 (Cal. Ct. App. 2012) (quoting and citing

DSM-IV-TR, at p. 199).

234. Id. at 767-68.

235. Id. at 767-68.

236. Id. at 769. The court concluded that

The trial court abused its discretion in ordering father to take parenting courses because

such an order is not reasonably designed to eliminate mother’s behavior, which led to

the trial court’s finding that Drake is a person described by section 300.

Id. at 770-71.

237. See supra Part IV.C.1.

238. Jennifer A. and Drake M. were decided by different divisions of the California appellate

court system. Jennifer A., 12 Cal. Rptr. 3d 572 (Cal. Ct. App. 2004) was decided by the Court of

Appeal, Fourth District, Division Three, and Drake M., 149 Cal. Rptr. 3d 875 (Cal. Ct. App. 2012),

was decided by the Court of Appeal, Second District, Division.



2020] PSYCHIATRY IN THE COURTROOM 577

parent was overturned.
3. In re Christopher R.239—California courts began to assess and re-assess the

significance that Jennifer A. and Drake M. paid to the DSM in subsequent
termination cases involving parental substance use or abuse.240 In Christopher R.,
decided in 2014, a California appellate court, while bowing to the DSM, moved
away from reliance on the APA’s manuals.241 Questions facing the court in
Christopher R. resembled those at stake in Jennifer A. and Drake M. Crystal R.
(Christopher’s mother) had four children. She and Frank G., the presumed father
of Crystal’s youngest child, an infant, appealed from a juvenile court order that
declared the children dependents of the court. The order was based on Crystal’s
history of substance abuse and her continuing use of cocaine as well as Frank’s
history of substance abuse and current use of marijuana.242 Crystal contended that
she had not used cocaine for seven years. However, both she and her youngest
child, Brianna, tested positive for cocaine at the child’s birth.243

The California appellate court that reviewed the case concluded that evidence
of Crystal’s drug abuse along with her “unstable lifestyle and cavalier attitude
toward childcare” supported the lower court’s finding that “Crystal’s substance
abuse endangered all four children’s health and safety.”244 The court noted the
absence of a legislative definition of substance abuse in the relevant statute. That
statute identified “a parent’s inability to provide regular care for his or her child
due to substance abuse” as a “basis for dependency jurisdiction”245 and expressly
“recognize[d] the Drake M. formulation as a generally useful and workable
definition of substance abuse” for purposes of understanding the law’s reference
to the condition.246 But the Christopher R. court limited its reliance on the DSM.
The court explained:

239. In re Christopher R., 171 Cal. Rptr. 3d 14, modified, 2014 Cal. App. LEXIS 440 (Cal.

Ct. App. 2014). Subsection 300(b) provides that a child who comes with the following description

may be adjudged a dependent of the court. Subsection 300(b)(1) provides:

The child has suffered, or there is a substantial risk that the child will suffer, serious

physical harm or illness, as a result of the failure or inability of his or her parent or

guardian to adequately supervise of protect the child, or the willful or negligent failure

of the child’s parent or guardian to adequately supervise or protect the child from the

conduct of the custodian with whom the child has been left, or by the willful or

negligent failure of the parent or guardian to provide the child with adequate food,

clothing, shelter, or medical treatment, or by the inability of the parent or guardian to

provide regular care for the child due to the parent’s or guardian’s mental illness,

developmental disability, or substance abuse.

CAL. WELF. & INST. CODE § 300(b)(1).

240. See infra Part III.B.4.

241. In re Christopher R., 171 Cal. Rptr. 3d 14 (Cal. Ct. App. 2014).

242. Id. at 16.

243. Id. Brianna was born in 2013. Id. at 17.

244. Id. at 20.

245. Id.

246. Id.



578 INDIANA LAW REVIEW [Vol. 53:545

Not only are we not bound by Division Three’s adoption of the DSM-IV-
TR’s definition of “substance abuse” but also that definition has been
replaced in the more recent Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition (DSM-5), published in May 2013 after the
decision in Drake M. by a more broadly defined classification of
“substance use disorders,” which combines substance abuse and
dependence.247

Although the Christopher R. court did not rely definitively on the broader
classification of “substance use” in DSM-5 (published in 2013), the court noted
the delineation of “11 relevant criteria” for identifying substance use disorders in
DSM-5.248 These criteria included, cravings and urges to use the substance;
spending a lot of time getting, using, or recovering from use of the substance;
giving up important social, occupational or recreational activities because of
substance use; and not managing to do what one should at work, home or school
because of substance use. The manual provided that the presence of two or three
of the 11 specified criteria indicated a mild substance use disorder; four or five
indicated a moderate substance use disorder; and six or more a severe substance
use disorder.249 While expressly limiting Drake M.’s formulation which relied on

247. Id., n.6.

248. Id

249. Id., n.6 (citing Highlights of Changes from DSM-IV-TR to DSM-5, AM. PSYCHIATRIC

ASS’N (Apr. 14, 2014), http://www.dsm5.org/Documents/changes%20from%20dsm–iv–tr%20to%

20dsm–5.pdf [https://perma.cc/8P4W-NXAL]). The criteria outlined for several substance abuse

disorders are quite similar, each to the others. The DSM-5 diagnostic criteria for cannabis use

disorder follow here:

A. A problematic pattern of cannabis use leading to clinically significant impairment

or distress, as manifested by at least two of the following, occurring within a 12-

month period:

1. Cannabis is often taken in larger amounts or over a longer period than was

intended.

2. There is a persistent desire or unsuccessful effort to cut down or control

cannabis use.

3. A great deal of time is spent in activities necessary to obtain cannabis, use

cannabis, or recover from its effects.

4. Craving, or a strong desire to urge to use cannabis.

5. Recurrent cannabis use resulting in a failure to fulfill major role obligations

at work, school, or home.

6. Continued cannabis use despite having persistent or recurrent social or

interpersonal problems caused or exacerbated by the effects of cannabis.

7. Important social, occupational, or recreational activities are given up or

reduced because of cannabis use.

8. Recurrent cannabis use in situations in which it is physically hazardous.

9. Cannabis use is continued despite knowledge of having a persistent or

recurrent physical or psychological problem that is likely to have been caused



2020] PSYCHIATRY IN THE COURTROOM 579

the DSM for a definition of substance abuse, the Christopher R. court hedged its
bets by simultaneously explaining that Crystal’s drug use would, if assessed
against DSM guidelines, constitute substance abuse.250

Here, we believe Crystal’s repeated use of cocaine and her ingestion of
that drug while pregnant constitutes recurrent substance use that resulted
in her failure to fulfill a major role obligation within the meaning of
DSM-IV-TR. But even if Crystal’s conduct fell outside one of the DSM-
IV-TR categories, we have no doubt her use of cocaine while in the final
stage of her pregnancy, combined with her admitted use of the drug in
the past and her failure to consistently test or enroll in a drug abuse
program, justified the juvenile court’s exercise of dependency
jurisdiction over her children.251

It remains unclear whether the court declined to follow the Drake M.
model—itself beholden to the model delineated in Jennifer A.—because those
courts had relied on an earlier DSM edition – thus occasioning questions about
which edition to invoke at any point in time—or whether the court simply
preferred its own assessment of the parents’ capacity to provide adequate care for
their children to conclusions dependent on broad diagnostic criteria, presumably
shaped without particular cases in mind. In any event, even as the Christopher R.
court limited application of the Drake M. formulation, it engaged in a careful
consideration of the criteria for identifying substance abuse delineated in DSM-
5.252 The court recognized the Drake M. model as “useful and workable,” but not

or exacerbated by cannabis.

10. Tolerance, as defined by either of the following:

a. A need for markedly increased amount of cannabis to achieve

intoxication or desired effect.

b. Markedly diminished effect with continued use of the same amount of

cannabis.

11. Withdrawal, as manifested by either of the following:

a. The characteristic withdrawal syndrome for cannabis . . . .

b. Cannabis (or a closely related substance) is taken to relieve or avoid

withdrawal symptoms.

DSM-5, supra note 13, at 509-10. DSM-5 provides that mild use involves the “presence of 2-3

symptoms;” moderate use involves the “presence of 4-5 symptoms;” and severe use includes the

“presence of 6 or more symptoms.” Id. at 510.

250. In re Christopher R., 171 Cal. Rptr. 3d at. 21.

251. Id. (noting in light of the children’s “tender age,” Crystal’s use of cocaine constituted

prima facie evidence that she was not able adequately to care for her children).

252. More disturbing, the court’s analysis of the facts found by the lower court and its

discussion of the decision in Drake M. suggested a disconcerting possibility – that in these case,

judicial dependence or not on the DSM was as likely to follow as to shape a court’s conclusions.

In In re Christopher R., the appellate court viewed the mother’s having missed a drug test as

significant evidence that she would not likely be able to provide adequately for her children. Id. at

20 (noting as well that Crystal, the mother, had not enrolled in a substance abuse program nor in



580 INDIANA LAW REVIEW [Vol. 53:545

as a “comprehensive, exclusive definition mandated by either the Legislature or
the Supreme Court.”253

4. Cases that Followed.—Drake M. and Christopher R. provided different
models regarding judicial reliance—or not—on DSM diagnostic categories with
regard to a parent’s diagnosis of substance abuse. After Christopher R., some
state appellate courts continued to rely on the Drake M. formation. Others did not.
The first case examined in this subsection compromised between the model in
Drake M. and that in Christopher R. In this case (In re Alezxander C.)254 the court
referred to diagnostic criteria included in both DSM-IV-TR and in DSM-5.255

That approach supported the trial court’s decision against the parents but did not,
without more, provide adequate support for affirming that decision. The second
case considered in this subsection more clearly followed Christopher R.’s
rejection—or, more accurately—its modification—of the Drake M. model.256

The appellate court in Alexzander C. affirmed a trial court decision that
Richard C., father of two minor children, abused methamphetamine to the
detriment of the children.257 Richard admitted using drugs258 but argued that that
use did not constitute drug abuse and did not pose a risk of harm to his
children.259 The appellate court affirmed the lower court ruling that the father was
a substance abuser and that that abuse did pose a risk of serious harm to his two

any other program that had been recommended to her and that her attitude to childcare was

“cavalier”). 

In contrast, in Jennifer A., the case on which Drake M. relied in identifying a model that

depended on the DSM’s diagnostic categories, the court described Jennifer, the mother, to have

missed nine drug tests but to have shown “sufficient compliance with the case plan to avoid

termination of parental rights.”12 Cal. Rptr. 3d 572, 587. The court in this case noted that the nine

missed drug tests (considered positives) and two actual positives did not provide evidence of

substance abuse since Jennifer submitted to eighty-four drug tests in which she tested negative for

drug use. Id.

In sum, the court that found the parent adequate. Jennifer was judged not to reflect the

manual’s criteria for a substance abuse diagnosis. In contrast, the court that did not believe the

parent (Crystal) to be able adequately to care for her children, rejected the Jennifer A. and Drake

M. model that depended on the DSM for a functional definition of substance abuse. Perhaps that

rejection reflected the court’s realization that reliance on DSM-5 criteria would have mitigated

concern about Crystal’s drug use. That was the case even though the court suggested that Crystal

would likely have met DSM-5 criteria for a substance disorder diagnosis had those criteria been

definitely applied to her case.

253. In re Christopher R., 171 Cal. Rptr. 3d at 21.

254. In re Alexzander C., 226 Cal. Rptr. 3d 515, 523 (Cal. Ct. App. 2017).

255. Id.

256. L.A. Cty. Dep’t of Children & Family Servs. v. V.T. (In re Mariah T.), 2015 Cal. App.

Unpub. LEXIS 2905 (Cal. Ct. App. 2015).

257. Id. Richard C. and the children’s mother, Alina C., had four children. Only two were still

minors when the case began. Id. at 517.

258. Id. at 523.

259. Id. at 521.



2020] PSYCHIATRY IN THE COURTROOM 581

children still living at home.
Reflecting the approach in Drake M., the appellate court looked to DSM

diagnostic categories. But the court shaped a compromise between the models
presented in Drake M. and in Christopher R. First, the court delineated the criteria
“demonstrate[ing] substance abuse” in DSM-IV-TR (relied on in Drake M.) It
then delineated the eleven criteria delineated in DSM-5 for diagnosing someone
with a substance use disorder.260 The Alexzander C. court concluded that both the
DSM-IV and DSM-5 diagnostic criteria for substance abuse supported the trial
court’s finding that the parents’ use of drugs, including methamphetamine, posed
a significant risk of harm to the children.261 Thus the court relied on both DSM-IV
and DSM-5 in affirming the lower court’s finding of substance abuse but did not
presume to condition conclusions in future cases involving claims of parental
substance abuse on compliance with DSM diagnostic categories. In re Mariah
T.,262 a state appellate court followed the holding in Christopher R. In doing that,
the court expressly limited the reach of the formulation put forth in Drake M. for
defining substance abuse in juvenile dependency cases.263 Mariah T. resembled
Drake M. and Christopher R. in having been occasioned by a parent’s challenge
to a lower court’s finding that the parent was a substance abuser and, as such, a
danger to his “children’s physical health and safety and place[d] the children at
risk of physical harm, damage, and danger.”264

The father in Mariah T. relying on DSM categories, contended that there was
no “substantial evidence” to support the lower court’s finding that he abused
substances. In that regard, he noted that the Department of Children and Family
Services “did not present evidence that Father had been diagnosed as having a
current substance abuse problem by a medical professional or that he had a[n]
abuse problem as demonstrated by various behaviors within the past twelve
months as defined in DSM-IV-TR.”265

The father’s approach reflected the approach relied on by the courts in
Jennifer A. and Drake M. In both cases, courts had overturned a lower court
finding of parental substance abuser on the grounds that the parent’s behavior did
not conform with the criteria for substance abuse delineated in the DSM.
However, the court rejected the father’s claim that he could not be labelled a
substance abuser because his use did not conform with substance abuse behaviors
outlined in the DSM.

The Mariah T. court did not comment on the review of DSM-5 diagnostic
criteria in Christopher R. even though DSM-5 had been published two years
before the decision in Mariah T.266 The appellate court affirmed the lower court’s

260. Id. at 523.

261. Id.

262. L.A. Cty. Dep’t of Children & Family Servs. v. V.T. (In re Mariah T.), 2015 Cal. App.

Unpub. LEXIS 2905 (Cal. Ct. App. 2015).

263. Id. at *10-*13.

264. Id. at *5-*6.

265. Id. at *6.

266. Id. at *12-*13.



582 INDIANA LAW REVIEW [Vol. 53:545

findings and dispositional order, referencing the children’s young age as grounds
for its decision that the father’s substance abuse provided “prima facie evidence”
of his presenting “a substantial risk of harm” to his children.267 In the view of the
Mariah T. court, there was no need to support that conclusion through reference
to DMS-5 diagnostic categories.

In sum, both courts that premised their conclusions on DSM diagnostic
categories and those that did not noted DSM categories and their implications. In
general, that process is likely to encourage judges more carefully to review the
evidence that a parent is or is not a substance abuser. In that, it promises to
contain judicial extravagances, in either direction.

D. Surrogate Parenting and Disagreements about DSM Diagnoses
Among Expert Witnesses

Experts testifying in a New Jersey case involving a dispute between a
surrogate mother and the couple with whom she had entered into a surrogacy
contract (the intending parents) presented conflicting interpretations of DSM
diagnostic categories.268 Expert testimony focused on the surrogate mother’s
capacity to serve the child and, correlatively, on the child’s best interests. The
case—in the Matter of Baby M.269— arose after the surrogate, Mary Beth
Whitehead, declined to comply with the terms of a contract entered into by
Whitehead, William Stern, the intending father, and Whitehead’s husband,
Richard.270 The surrogacy contract had provided that should Whitehead become
pregnant and give birth to a child conceived through assisted insemination with
William Stern’s sperm, she would cooperate in effecting the termination of her
maternal rights so that Elizabeth Stern, the intending mother and William Stern’s
wife, could become the child’s legal, adopting mother.271 In exchange, Stern
agreed to pay Whitehead $10,000 upon the birth of the child.272

Mary Beth Whitehead gave birth to a girl in March 1986 and soon realized
that she was unable to give the child to the Sterns.273 Without informing the
Sterns, she travelled with her husband, Richard, and the baby to Florida.274

Several months later, the Sterns located Whitehead and the child in Florida and
commenced a proceeding to require Whitehead to return to New Jersey and

267. Id. at *14 (relying on Drake M., 149 Cal. Rptr. at 886 and Rocco M., 2 Cal. Rptr. 2d at

435).

268. In re Baby M., 537 A.2d 1227 (N.J. 1988), rev’g In re Baby M., 525 A.2d 1128 (N.J.

1987).

269. In re Baby M., 537 A.2d 1227 (N.J. 1988)

270. Id. at 1235.

271. Id.

272. Id.

273. Id. at 1236. Initially, Whitehead surrendered the baby to the Stern. Id. She became

disconsolate. The Stern, concerned that Whitehead would kill herself, agreed to let her have the

baby for a short period. Id. at 1237.

274. Id.



2020] PSYCHIATRY IN THE COURTROOM 583

surrender the child to them.275 The Sterns sought legal parentage of the child.276

The trial court deemed the best interests of the baby to have been its primary
consideration in identifying the child’s legal parents.277 On the basis of its best-
interest determination, the trial court reached a conclusion rarely reached in
custody cases: it terminated Mary Beth Whitehead’s parental rights and provided
for Elizabeth Stern—the intending, but not the biological, mother—to adopt the
child.

The trial court heard testimony from thirty-eight witnesses. Eleven offered
testimony about the child’s best interests.278 Most of those eleven experts
depended upon psychiatric knowledge, though not necessarily knowledge
contained in the DSM.279 Two of them invoked the DSM, but to different ends.280

275. Id.

276. Id.

277. In re Baby M., 525 A.2d at 1132. Judge Sorkow, presiding in the trial court, wrote: “The

primary issue to be determined by this litigation is what are the best interests of a child until now

called ‘Baby M.’”

278. Id.

279. Id. Yet, the court essentially dismissed the testimony of several of these mental health

experts. Id. The court was unwilling to place weight on testimony of one expert, P. Silverman,

because of her “stated bias against men” and because she had queried whether a male professional

was capable of evaluating a female client. Id. Further, the court noted that Dr. Vetter largely

testified about Mary Beth Whitehead’s capacity to exercise informed consent. The court deemed

that concern to have had virtually no relevance to the case. Id. at 1149. Dr. Koplewicz’s testimony

was criticized by the court because he had “no knowledge of the fundamental criteria that must be

established before a court in New Jersey may order joint custody.” Id.

280. In reaching its best-interest determination, the trial court relied heavily on the testimony

of Dr. Lee Salk, an expert witness for the Sterns. Id. at 1151. Dr. Salk testified on the child’s best

interests. In that capacity, he offered nine factors that he posited as relevant to a best interest

determination. Id. These factors included the child’s having been wanted or not; the “emotional

stability” of the people in the home environment; the stability and consistency of the family; the

ability of the adults to understand and respond to the child’s needs, both emotional and physical,

the family’s position about education and learning; the adults’ ability to respond with rationality,

especially in difficult situations; the adults’ capacity to encourage health and nutrition and to teach

the child to avoid substance abuse; the adults’ ability to help the child deal with the problems that

life presents and to become a “productive member of society.” Id. The court took that list very

seriously in deciding that the child’s best interests lay with the Sterns, not with Whitehead. The

court further reported on Dr. Salk’s assessment of the Sterns in light of each of the factors he

enumerated. Id.

One of the few components of the trial court decision that the state’s highest court approved

on appeal was the lower court’s examination and interpretation of the testimony about the child’s

best interests. The state’s highest court found the trial court’s analysis of Dr. Salk’s testimony to

have been “perceptive.” In re Baby M., 537 A.2d 1227, 1238 (1988). For the New Jersey Supreme

Court, however, the best interest determination spoke only to the issue of custody and not to that

of parentage. Id. After determining that William Stern and Mary Beth Whitehead were the child’s

legal parents, the appellate court granted custody to Stern and, thus in effect, to his wife, Elizabeth



584 INDIANA LAW REVIEW [Vol. 53:545

One of the two diagnosed Mary Beth Whitehead, the surrogate, with a DSM
mental disorder. Dr. M. Schecter, a psychiatrist who testified on behalf of the
child’s court-appointed guardian ad litem,281 concluded on the basis of DSM
diagnostic criteria that Mary Beth Whitehead could be diagnosed with mixed
personality disorder.282

The trial court judge respected the DSM as an authoritative text. He referred
to DSM-III (the most recent DSM edition at the time) as “the standard guide of
the mental health field used to define mental disorders.”283 Yet, the court did not
accept Dr. Schecter’s application to Whitehead of a DSM-III diagnosis, largely
because Dr. Klein, another of the experts who testified in the case, presented a
contrary set of conclusions about the applicability of the DSM diagnosis to
Whitehead.2 8 4 Dr. Klein, a psychiatrist who testified for the Whiteheads, had
served on the committee that authored the part of DSM-III on which Dr. Schecter
relied. Dr. Klein opined that the symptoms to which Dr. Schecter pointed were
not of “sufficiently long duration” to justify diagnosing her with mixed
personality disorder. Rather, explained Dr. Klein, the symptoms reflected
Whitehead’s response to the “present life crisis.”285 Thus, the court dismissed the
conclusion of one expert (Dr. Schecter), who relied on DSM-III because another
expert (Dr. Klein, who helped author relevant parts of DSM-III) disputed the
validity of Schecter’s interpretation and diagnosis.286

After reviewing the experts’ testimony, Judge Sorkow, writing for the trial
court, explained that even as the court believed that the experts who testified
“deserve respect,”287 the judge – in this case, the trier of fact – was ultimately

Stern. Id. If William had died or if William and Elizabeth had separated, however, the law would

have provided Elizabeth with very little support had she attempted to sustain her relationship with

the child. Id.

281. 525 A.2d at 1150.

282. Id.

283. Id.

284. Id.

285. Id.

286. The court relied on Dr. Klein’s expertise in dismissing Dr. Schecter’s diagnosis of

Whitehead with a DSM mental disorder. Id. However, the court decided not to place weight on Dr.

Klein’s own conclusions about Mary Beth’s mental health status. Id. 1150-51. Klein administered

a test that was “in a developmental state and not accepted by the mental health profession.” Id. at

1151.

Judge Sorkow concluded that the court would not rely on Dr. Klein’s findings and would

“give minimal weight to [his] conclusions.” Id. Similarly, Judge Sorkow downplayed the

testimony of another expert who testified for and who ‘favored’ the Whiteheads – Dr.

Sokoloff, a pediatrician. Id. This witness, the court explained, testified on cross-examination

that, although he’d opined on the best interests of children raised by birth mothers, by

stepparents, by adopting parents and by foster parents, he admitted to having had no special

training in early childhood development. Id. For this reason, the court concluded, Dr. Sokoloff

had “neutralized himself.” Id. 

287. Id. at 1156.



2020] PSYCHIATRY IN THE COURTROOM 585

responsible for analyzing that testimony. “Experts,” asserted Judge Sorkow, “are
to aid and assist the trier of fact, not to dominate or control him in the decision of
the disputed question.”288

Thus, the New Jersey trial court in Baby M. took a position resembling that
of some of the California appellate courts that acknowledged, but limited, the
model proposed in Drake M. For instance, in In re Alexzander C.,289 the appellate
court reviewed DSM diagnostic categories related to substance use disorder,
finding that guidance useful. However, as in Baby M., the court did not treat the
DSM categories as determinative.290

IV. ASSESSING THE LAW’S RELIANCE ON DSM DIAGNOSTIC CATEGORIES
IN LITIGATION INVOLVING PERSONAL STATUS

The two preceding Parts of this Article show the DSM to have served
different functions for both litigants and courts in cases involving first, the rights
of transgender populations and second, in cases in which parents faced the
possible termination of parental rights. In both sorts of situations, the DSM has
provided useful guidelines for courts even though shifts in diagnostic categories
between DSM editions have sometimes raised concern for courts as have
differences of opinion among psychiatrists about how best to interpret DSM
diagnostic categories in the context of particular legal cases.

Psychiatrists, scholars, and judges have criticized judicial reliance on the
DSM in general and, specifically, they have criticized reliance on the manual in
cases involving questions of personal status.291 Successive editions of the manual

288. Id. at 1156. Finally, relying largely on Dr. Salk’s enumeration of factors relevant to a

child’s best interests in determining his or her custody, the court found that the child would best

be served by paternal custody. Id. It then concluded that it would specifically enforce the agreement

among the parties and terminate Whitehead’s maternal rights. Id.

Mary Beth Whitehead appealed. In re Baby M., 537 A.2d 1227 (N.J. 1988). The state’s

highest court overturned the trial court’s holding, characterizing the surrogacy contract into

which the parties had entered as “illegal and invalid.” Id. at 1235. Moreover, the state supreme

court described the trial court’s holding to have been in conflict with “the law and public policy

of this State.” Id. at 1234. Yet, Judge Wilentz, writing for the N.J. Supreme Court, relied on the

trial court’s best-interest analysis in granting full custody to William Stern. Id. at 1238. The court

wrote:

On the question of best interests – and we agree, but for different reasons, that

custody was the critical issue – the court’s analysis of the testimony was perceptive,

demonstrating both its understanding of the case and its considerable experience in

these matters. We agree substantially with both its analysis and conclusions on the

matter of custody. Id.

289. In re Alexzander C., 18 Cal. App. 5 438, 447 (Cal. Ct. App. 2017).

290. Id. 

291. Sisti & Johnson, supra note 12, at 96. Courts have invoked the manual more often in

criminal cases than in civil cases. Slovenko, supra note 1, at 6-8.



586 INDIANA LAW REVIEW [Vol. 53:545

were not shaped for use by courts of law;292 questions have emerged about the
legitimacy of the processes through which the manuals are revised.293 More
broadly, confidence in the APA’s manuals has diminished in the last several
years, even within the profession.294 Further, DSM-IV and DSM-5 openly caution
against unthoughtful reliance on the DSM in legal settings.295

All of that notwithstanding, reliance on the DSM in the sort of cases
examined in this Article—cases questioning personal status—has assisted courts
to make decisions about matters that implicate litigants’ personal status and that
can therein be of great consequence to people’s everyday lives.296 Indeed, even
as the DSM itself cautioned against use of the manuals in court, both DSM-IV
and DSM-5 acknowledge that “[w]hen used appropriately” each edition of the
DSM can assist lawmakers.297 Both editions explain:

By providing a compendium based on a review of the pertinent clinical
and research literature, DSM-IV [and DSM-5] may facilitate the legal
decision makers’ understanding of the relevant characteristics of mental
disorders. The literature related to diagnoses also serves as a check on
ungrounded speculation about mental disorders and about the functioning
of a particular individual. Finally, diagnostic information about
longitudinal course may improve decision making when the legal issue
concerns an individual’s mental functioning at a past or future point in
time.298

The APA’s own assessment seems reasonable. It might better be viewed as multi-
dimensional than as internally conflicting. The DSM can provide invaluable
guidance to courts asked to interpret mental health diagnoses. Yet, it is most
likely to offer that guidance felicitously and to serve justice if it is understood as
open to interpretation and is applied with wisdom and care in legal settings.

A. The DSM Guides Lawmakers: an Illustration

A Florida case, G.T. v. Department of Children & Family Services,299

illustrates the value of courts’ relying on the DSM “as a check on ungrounded
speculation about mental disorders and about the functioning of a particular
individual.”300 This illustration is particularly compelling because the trial court,
which reached what appears to be an unfortunate decision, did not rely on DMS

292. See generally Sisti & Johnson, supra note 12.

293. Id.

294. Id. at 87.

295. Id.

296. See supra Parts III and IV.

297. See Slovenko, supra note 1, at 6 (noting conflicting assessments of use of DSM

diagnostic categories by lawmakers).

298. Id.

299. G.T. v. Dep’t Children & Family Serv., 935 So.2d 1245 (Fla. Ct. App. 2006).

300. Slovenko, supra note 1, at 6



2020] PSYCHIATRY IN THE COURTROOM 587

diagnostic categories.301 The appellate court, which did rely on the manual,
reversed the trial court’s holding.302

Florida law governing mental health services for minors303 defined a minor
with an “emotional disturbance” or a “serious emotional disturbance” as “a
person under 18 years of age” who had been diagnosed with a disorder meeting
a diagnostic category in the latest edition of the DSM.304 In cases involving family
status and the custody or parentage of children, such statutory
provisions—requiring testimony from an expert who evaluates his or her findings
in light of DSM categories—may preclude potentially draconian responses (e.g.,
institutionalizing a child not needing in-patient care or terminating the parental
rights of parents whose children’s interests will not thereby be served).

G.T. was an adolescent whose parents’ rights had been terminated. The lower
court granted the Department of Children and Family Services’ request to place
G.T. in a residential mental health facility. In making that determination, the
lower court did not rely on DSM categories, and it appeared not to consider the
boy’s full story. The court relied on hearsay evidence—an assessment report
authored by a licensed psychologist who did not reference the DSM and did not
appear before the court—in concluding that G.T. should be involuntarily placed
in a residential mental health facility.305 Yet, witnesses for G.T., including his

301. G.T., 935 So. 2d at 1248-49.

302. Id. at 1249-50 n.9 & n.10.

303. FLA. STAT. § 394.492(5) & (6) (2019).

304. § 394.492(5) & (6). The full statutory definition of each term follows:

5) “Child or adolescent who has an emotional disturbance” means a person under 18

years of age who is diagnosed with a mental, emotional, or behavioral disorder of

sufficient duration to meet one of the diagnostic categories specified in the most recent

edition of the Diagnostic and Statistical Manual of the American Psychiatric

Association, but who does not exhibit behaviors that substantially interfere with or limit

his or her role or ability to function in the family, school, or community. The emotional

disturbance must not be considered to be a temporary response to a stressful situation.

The term does not include a child or adolescent who meets the criteria for involuntary

placement under [State law].

(6) “Child or adolescent who has a serious emotional disturbance or mental illness”

means a person under 18 years of age who:

(a) Is diagnosed as having a mental, emotional, or behavioral disorder that meets

one of the diagnostic categories specified in the most recent edition of the

Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric

Association; and

(b) Exhibits behaviors that substantially interfere with or limit his or her role or

ability to function in the family, school, or community, which behaviors are not

considered to be a temporary response to a stressful situation.

The term includes a child or adolescent who meets the criteria for involuntary

placement under [State law]. § 394.492(5) & (6).

305. The appellate court noted that hearsay evidence may sometimes be admissible in cases

such as G.T.’s but could not be “deemed competent, substantial evidence sufficient to support a



588 INDIANA LAW REVIEW [Vol. 53:545

high school’s guidance counselor and a teacher, testified that G.T. “had no
disciplinary problems, no impulse control problems, no problems being
disrespectful to teachers, and had made friends with students who were also good
student citizens.”306

Reversing, the appellate court explained that the lower court’s decision did
not comport with the requirements of the law – that an order to place a minor in
a residential mental health facility must be grounded on evidence offered by a
psychiatrist or psychologist307 and that state law “contemplate[d] expert opinion
attesting to a diagnosis that comports with a disorder specified in the Diagnostic
and Statistical Manual of Mental Disorders of the American Psychiatric
Association.”308 Before a court could order that a child be institutionalized, it had
to have considered expert psychiatric testimony asserting that the minor suffered
from “a mental, emotional, or behavioral disorder” that met “one of the diagnostic
categories specified in the most recent edition of the Diagnostic and Statistical
Manual.”309

The appellate court decision, and the state law on which that decision relied,
acknowledged that diagnosing someone with a mental disorder can have profound
legal consequences – in G.T.’s case, his involuntary placement in a residential
facility. It is thus reasonable to expect that before a trial court concludes that a
child is mentally ill, it consider expert testimony and reasonable to expect that an
expert’s diagnosis of mental illness comport with a DSM “disorder.” These
requirements offer some protection against judges—generally untrained in
diagnosing mental disorders—too readily concluding that the future of a child (or
a parent in relation to his or her child) should be sacrificed to an unsupported
presumption of mental illness.

Read together, the lower court decision and the appellate court decision in
G.T. show the benefits of judges relying on a professional framework within
which to assess a presumptive mental disorder. Had the trial court judge in G.T.
heeded state law and entertained psychiatric testimony grounded on DSM
diagnostic categories, that judge would likely not have ordered that the boy be
confined to a mental health facility.

The shortcomings of the DSM for use in legal settings notwithstanding, in
cases such as G.T. the framework provided by DSM diagnostic categories,
interpreted by experts, can be invaluable in guiding judges’ decision making.
Moreover, the DSM carries significant professional weight.310 Thus, the manual

factual finding.” Id. at 1252.

306. Id. at 1248.

307. Florida law required that evidence that a child should be placed in residential mental

health care because of an emotional (or “serious emotional”) disturbance had to be offered by “‘a

psychiatrist or a psychologist licensed in Florida.’” Id. at 1249 (citing FLA. STAT. § 39.405(6)(b)

(2005).

308. Id. at 1249 (citing FLA. STAT. § 394.492(5) & (6) (2005)).

309. Id. at 1249-50.

310. Teneille R. Brown, From Bibles to Biomarkers: The Future of the DSM and Forensic

Psychiatric Diagnosis, 2015 UTAH L. REV. 743, 746 (“lawyers and judges often refer to the DSM



2020] PSYCHIATRY IN THE COURTROOM 589

can guide judges in cases involving parent-child relationships (as well, of course,
as in other sorts of cases). State laws, such as Florida’s, that predicate courts’
conclusions about a party’s mental status on professional guidelines aim to
reduce, even if they do not always obliterate, impressionistic decision-making
that may do a disservice to litigants.

B. Benefits of Reliance on the DSM in Personal Status Cases: a Summary

DSM diagnostic categories can guide judges, offering them a tool for
responding to claims of mental illness in personal status cases. Yet, that tool must
be handled with caution. This Section delineates some of the reasons that caution
in judicial reliance of DSM categories is in order for that reliance to provide the
greatest benefit.

Even as reliance on the DSM can structure legal decision making in cases that
necessitate an understanding of mental illness, that reliance does not transform
non- professionals, including judges, into psychiatrists. The mediation of experts
is essential in cases such as those examined in this Article. Psychiatric experts are
generally aided, in turn, and can thus better assist courts more forcefully, through
references to the professional manuals such as the DSM.

Still, however, judicial caution should be exercised when relying on the
DSM. This call for caution, which reflects the DSM’s own disclaimers about the
usefulness of DSM diagnostic categories in legal settings,311 is justified by a set
of potential stumbling blocks that may face court’s relying on the DSM to assess
litigants’ mental health. The task of interpreting shifts between DSM editions—a
task that may befuddle even professionals312—has confused judges.313 Judicial
reliance on one DSM edition instead of another can carry significant
consequences for litigants. Furthermore, caution is in order insofar as successive
editions of the DSM not only reflect advances in psychiatry; they also reflect
socio-cultural shifts.314 And sometimes they reflect financial motives that do not
serve patients.315

The most recent DSM edition at any point in time has often been considered
the most reliable,316 but courts have sometimes approved testimony offered by an

as the ‘psychiatric bible’” (citing Warren Moïse, Shrink Rap, 20 MAR. S.C. LAW. 13, 13 (2009)).

311. See, e.g., DSM-5, supra note 13, at 25; see supra notes and accompanying text.

312. See, e.g., Pickersgill, supra note 49, at 40; Wakefield, supra note 44, at 139.

313. See supra Part II.

314. See Sisti & Johnson, supra note 12, at 79 (noting “psychiatric nosology . . . draw[s] on

cultural norms”).

315. Id. at 87.

316. See In re Timothy Maurice B., 626 N.Y.S.2d 665 (N.Y. Fam. Ct. 1995). A New York

court rejected one expert’s testimony about the mental status of a parent because that expert had

relied on DSM-III-R even though DSM-IV was available. Id. The court explained:

The court is not prepared to accept an opinion rendered under DSM-III-R when DSM-

IV was the operative professional Manual. This court cannot accept the explanation that

the Family Court Mental Service allowed its doctors to render opinions based on an



590 INDIANA LAW REVIEW [Vol. 53:545

expert relying on an older edition of the manual. For instance, a New Jersey court
accepted the explanation of an expert who had relied on DSM-IV diagnostic
categories even though DSM-5 had been published with a somewhat different
presentation of the categories at issue.317 The court explained that “there ha[d]
been significant professional controversy over the DSM-V [sic]”318and, thus, it
was comfortable relying on an earlier edition of the manual.

The role of social and cultural influences in shaping successive DSM editions
has occasioned concern. The extent to which the APA should consider the
preferences of constituents,319 especially advocates and patients, has been a matter
of contention.320 Two commentators have suggested that patients and patient
advocates “should be able to hold the APA accountable for decisions that they
think undermine rather than advance their interests.”321 That sentiment opens a
path along which constituents can play a role in shaping DSM revisions in light
of their perceived needs and preferences.

Ties between industry (especially pharmaceutical companies) and
psychiatrists have occasioned serious concern about the effects of authors’
conflicts-of-interest on the shaping of the DSM.322 Correlatively, changes in the
DSM may be motivated by an interest in expanding payor coverage. The decision
of DSM-5 authors to eliminate the DSM-IV distinction between Axis-I (clinical)
disorders and Axis-II (personality) disorders may, for instance, have been
motivated by an interest in increasing the likelihood that payors would pay
providers for treatment related to particular psychiatric treatments.323 Further, the
proliferation of diagnoses is likely to increase coverage for the treatment of
mental health disorders.

These factors—shifts in diagnostic categories between DSM editions, the role
of social and cultural factors in shaping new diagnostic categories, and conflicts-
of-interest resulting from ties between DSM authors and industry and,

outdated Manual and that they had more than six months . . . before being required to

use DSM-IV.

Id. at 669-70 (noting that “a near-final draft of DSM-IV had been in circulation for a year so that

members of the profession could study and critique it before final release in May 1994”).

317. N.J. Div. Child Protection & Permanency v. J.L.C., No. A-3727-17T2, 2019 WL 2060279

(N.J. Super. Ct. App. Div. 2019) (holding against parents who appealed a decision to terminate their

parental rights to their son).

318. Id. at *2.

319. Sisti & Johnson, supra note 12, at 81. (noting four constituencies affected by revisions

in the DSM: “allied behavioral health and medical professionals;” “mental health researchers;”

“current or future patients;” and payors.)

320. Id. at 84.

321. Id. at 82.

322. Id. at 87 (noting “[t]rust in psychiatry in general and the APA specifically has waned

significantly since the release of DSM-IV, in part due to worries about academic-industry

relationships”).

323. Id. at 95 (suggesting that elimination of Axis I and Axis II distinction may reflect interest

in increasing coverage options for psychiatric care).



2020] PSYCHIATRY IN THE COURTROOM 591

correlatively, an interest in increasing payors’ readiness to cover treatment for
mental disorders—justify caution in lawmakers’ reliance on the DSM. That said,
reliance on the manuals can be of significant assistance to lawmakers seeking to
discern the scope, relevance and implications of psychiatric diagnoses.

In short, the DSM, used with appropriate attention to the issues at stake and
the manual’s purpose, provides a framework for decision making that limits
unsupported, impressionistic responses among judges and other lawmakers. This
establishes a significant safeguard to people diagnosed with mental illnesses
involved in litigation that can seriously affect their freedom.324 Thus, courts
should continue to seek guidance from the DSM while recognizing that its
diagnostic categories have often been shaped in light of social, cultural, and
economic processes and preferences and must, therefore, be appropriated
thoughtfully.

V. CONCLUSION

The DSM has been called psychiatry’s “Bible.”325 However, in courtrooms
the DSM offers a valuable framework and set of guideposts, but it should not be
viewed as reflecting objective or eternal truth. Successive editions of the DSM
have proven themselves useful to courts considering litigants’ mental health. Yet,
it is incumbent upon judges who rely on DSM diagnostic categories to be
informed about their limitations. The implications of the categories can be murky.
And the stakes are high: the consequences of diagnosis with a mental disorder for
litigants and those connected to them can hold momentous consequences.

Litigation initiated by transgender populations seeking fairness has been
furthered by the appearance of DSM-5.326 That edition’s revisions, responsive to
the preferences of transgender people and shaped in tune with shifts in social and
cultural processes, identified “gender dysphoria,” but not gender identity, as a
“disorder.” That change mitigated the stigmatization that followed earlier DSM
editions’ characterization of transgender status while, at the same time, providing
a diagnosis to those seeking coverage for a medical transition.327 The use of DSM
diagnostic categories in cases involving the termination of parental rights is older
and has brought diverse consequences for parents diagnosed with mental
disorders and for their children in cases challenging parental rights initiated by

324. Sisti & Johnson, supra note 12, at 96 (providing examples of reliance on DSM in cases

involving persons diagnosed with paraphilia disorders and in cases involving parents diagnosed

with mental disorders at risk for losing parental rights).

325. Cynthia M.A. Geppert, Is the DSM the Bible of Psychiatry?, Psychiatric Times (Dec. 1,

2006), https://www.psychiatrictimes.com/bipolar-disorder/dsm-bible-psychiatry/page/0/1

[https://perma.cc/82YU-HA6A] (noting that the “popular press, and even . . .scholarly papers” refer

to the DSM as a “Bible”).

326. See supra notes 71-80 and accompanying text (describing treatment of transgender status

in DSM-5).

327. See supra Part III.



592 INDIANA LAW REVIEW [Vol. 53:545

the state328 and by private parties.329 The authority of courts to identify parents
with a mental disorder creates a profound responsibility. Reliance by judges on
DSM categories channels idiosyncratic judicial interpretations of a parent’s
mental state and mitigates bias regarding parents diagnosed with a mental illness.

That the guidance of the DSM is imperfect does not gainsay the manual’s
usefulness in courtrooms. DSM diagnostic categories and the experts who
interpret them offer a powerful framework to judges handling cases in which a
litigant’s mental health status has been questioned. At the same time, that
framework is most likely to protect litigants and society’s interests if judges are
aware of the DSM’s scope and its limitations. The manual has the power to
stigmatize or to protect and support people diagnosed with mental disorders. The
DSM has been celebrated as a compendium of psychiatric diagnoses, comparable
within psychiatry to a sacred text among theologians.330 Yet, its essential
perspective and its framework have been transformed over time.331 Moreover,
changes in successive editions reflect the fruits of psychiatric research, and they
reflect shifting socio-cultural tides or, more troubling, financial conflicts of
interest. Finally, judges relying on DSM diagnostic categories must understand
that those categories and the psychiatric testimony that interprets them may have
to be “translated” before they harmonize with legal principles.332 Psychiatrists,
who may “lack knowledge of the law,” should not “replace . . . judges” or be
accepted as “impartial factfinders.”333 In response to that possibility, it becomes
incumbent on judges seeking guidance from the DSM actively to assess
psychiatric testimony through the lens of the law.

328. See supra Part IV.

329. See, e.g., In re Baby M., 525 A.2d 2544 (N.J. Ct. App. 1987), rev’d 537 A.2d 1227 (N.J.

1988); see supra Section IV(D).

330. Geppert, supra note 325.

331. Slovenko, supra note 1, at 6.

332. Brooks, supra note 9, at 283.

333. Id.