Reproduced with permission. Kristine lays the issues out far clearer and accurately than I ever could. However this is the sort of issue I had in mind when I wrote the previous essay.
THE CONUNDRUM OF SAME-SEX TRANSGENDER MARRIAGE
To the best of my knowledge, the issues discussed are still relevant in Pennsylvania, where I practice. However, in New Jersey and other jurisdictions where same-sex marriage and/or civil unions are now recognized, the issues are moot. Such jurisdictions are in the minority, however.
KRISTINE W. HOLT
I.
Within the last half-decade, innumerable heated discussions have taken place within the transgender community regarding laws prohibiting same-sex marriages and the legal status of married transsexual or transgendered[1] spouses.[2] It is generally acknowledged that, with few exceptions, marriages between post-operative[3] transsexuals and differently-sexed spouses[4] are validly entered into.[5] The marriage of a post-operative transperson to a same-sexed spouse is less certain.[6] There are two ways in which such same-sex marriages might come about: either by direct marriage between two women, one a transwoman and one a natal woman, or by the transition of one spouse already in a different-sex marriage from male to female without divorce.[7] It is the latter type of marriage with which this article is concerned.
While the general consensus of the transgender community is that such marriages remain valid post-SRS, the truth of this consensus has yet to be proven definitively in any court. More recently, a small but outspoken group of transgender activists[8] have suggested that same-sex marriage laws might be successfully challenged using the transgender marriage as a model.[9] This proposal has not been universally accepted within the community; factions of supporters and detractors seem split along lines of sexual orientation.[10]
Such a proposal, considered from an assimilationist point of view, is ill-conceived because it sets transgendered persons apart as a “special class” entitled to differential treatment and thus further marginalizes this already marginalized class. For the transgendered person who wishes nothing more than to blend in to society and lead an unremarkable life, such a “privilege” is in reality a bane. As a matter of policy for the transgender community, such a legal tactic should be rejected.
II.
1 A. The Playing Field
Progress in the medical sciences since 1953, when the sexual transition of Christine Jorgensen first garnered media attention, has far outstripped the progress seen from Hippocrate’s era until then. Each advance has called for a reevaluation of our laws and public policies. Abortion, organ donation, cloning, euthanasia — these, and a host of others, have all impacted society in a way that demands response from our courts and legislatures. Perhaps the most dramatic advance in recent medical science, one that regularly receives sensationalist and lopsided coverage whenever discussed in the popular media, is also one that may have the most subtle but nevertheless revolutionary impact on how the law treats one of society’s most fundamental institutions. That institution is marriage, and the medical marvel is transsexual sexual reassignment surgery.
Sexual reassignment surgery (SRS) has been a viable option for transsexual individuals only since the early 1930s.[11] However, early surgical procedures were expensive and left much to be desired in the way of functionality. As surgical techniques improved through the 1960s and 1970s, satisfactory reassignment became a reality for virtually anyone who qualified and planned wisely. The list of surgeons certified by various aesthetic surgery boards to perform SRS numbers well into the hundreds in North America alone, and SRS over 1,500 surgeries are performed yearly[12] in large American cities and small towns.[13]
Standards of care regarding the treatment of transsexual patients were adopted by the medical community in 1980.[14] Such standards were promulgated in response to the growing demand for SRS and the concomitantly growing threat of liability to health care providers for negative surgical outcomes and inadequate psychological support for the patient in preparation for surgery. Prior to the adoption of the standards of care, most surgeons and psychiatrists required their transsexual patients to obtain divorces from their spouses (if they were married) before SRS would be performed.[15] After the passage of years, the requirement that transsexual patients divorce their spouses is one that is less adhered to.
While it is not necessarily common, it is not completely unusual to find a partner in a heterosexual marriage (most often, the husband) changing sex while the marriage remains intact.[16] In most states, successful completion of SRS is the basis for a legal change of sex.[17] The resultant marriage that such a transsexual person may be a part of becomes, 1 de facto, a same-sex marriage. Such marriages have yet to be confronted by the courts. However, when they do, as they eventually will, they promise to stretch public policy beyond the point where judicial precedents may comfortably take it.
1 B. The Players’ Dilemma
This article is based upon a real-life example illustrating the issues that arise when a married person changes her sex. I was contacted by an acquaintance who sought my input into a problem she was experiencing. She had just begun a job the previous month and had submitted all the necessary documents her employer required so as to provide her insurance benefits, tax withholding, etc. She presented state and federal documentation that showed her to be female, but also presented an out-of-state birth certificate showing her to be male; she declared herself to be a post-transition transgendered woman, although she had yet to complete SRS. She was subsequently contacted by her employer’s benefits department and questioned as to the dependent she had listed on her health plan — her wife. She explained that hers was a legal marriage, that it had been entered into when she was a male, and that she was now female. The functionary responded by asserting that the employer did not recognize same-sex marriages. When my acquaintance just as forcefully asserted that hers was indeed a legal marriage, legally entered into and never dissolved or annulled, the departmental reply was to question her sex. In the administrative mind, it was inconceivable that two females could be legally married to each other.
It was at this point she contacted me. We explored her options and the likely consequences of her actions for some time. We concluded that, because she was pre-SRS, the legal standing for the validity of her marriage was stronger than the legal standing for her female status; she decided to declare herself to her employer as a male for the present, until she completed SRS. We waxed philosophically after that and ruminated over what might happen if a husband remained married to his wife after legally changing status from male to female. Our discussion led to two possibilities: either the state would be forced to recognize same-sex marriages (and recognize non-transsexual as well as transsexual same-sex marriages because of equal protection considerations), or the courts would declare that persons born of one sex must legally remain that same sex throughout life. The former possibility seemed very unlikely, and the latter was very undesirable in my eyes. We resolved to think no further on the matter.
I did think further on the matter, however. My thoughts at that point were not new. The idea of a married transgender couple challenging various state and federal laws prohibiting same-sex marriages is one that appeals to a sizable number of transgender activists. I concluded, however, the zeal with which some proponents of this approach advocate their positions belies a full understanding of the consequences should the tactic go awry. The unassailable reality is that legislatures have almost universally declared state and national public policies to be unremittingly opposed to same-sex marriage.[18] The legal status of post-SRS and other transgendered individuals is much more precarious, though; given a choice, it is not difficult to determine the outcome of a showdown between transgender marriage litigants and mainstream society.
The more I thought on this puzzle, though, the more I desired to reject both results — particularly the most inevitable outcome, which would have a devastating effect on the transgender community. It slowly occurred to me that one might avoid the product of this algebra if one removed just one basic assumption from the equation: that the state cannot dissolve a legal marriage without the consent of at least one party to the marriage. This assumption has driven transgender legal theorists in their desire to challenge same-sex marriage laws, and has in a like manner fed the woeful conclusions of the opposition. Yet, it is an assumption that may not withstand the transsexual challenge.
1 C. The Assimilationist View
This article is an attempt to expound my speculative ruminations on transsexuality and the institution of marriage. I will seek to explain, with appropriate legal precedents, my belief that transgender challenges to laws banning same-sex marriages will not achieve recognition of such marriages. Such challenges will, instead, lead either to a greater governmental supervision over and intrusiveness into marriage, or to the effective diminution and further marginalization of the transgender community itself.
A caveat is in order, however. The arguments set forth here are philosophically based upon an assimilationist approach to transgender inclusion in the greater society. This approach is grounded on the premise that the greatest goal of the transgendered individual is to live as full and happy a life as possible in the chosen gender role. Assimilation in this manner necessitates recognizing (although not necessarily embracing) many of the prevailing notions of gender and the interactions between the sexes existing in mainstream society. Such an approach is sometimes denigrated by activists as “woodworking,” “closeting,” or even “the politics of shame.” Yet, the philosophy of assimilation need not be characterized in such terms.
An assimilationist need not deny her past as a member of the opposite sex and seek to blot it out by any means possible. She may be “out” to family and close friends, yet remain “closeted” to mere acquaintances, coworkers and strangers. Or, she may choose to live unashamedly but quietly “open” to a different degree, revealing herself to those who sincerely query her or when circumstances demand it (such as, for instance, when a bar application asks whether she has been known by another name) Regardless of one’s level of “quiet outness,” however, one need not dwell in shame over one’s past; one accepts it and gets on with life in the present.[19] Such a philosophy does not run counter to those who advocate an “open pride” in one’s transgender status.[20]
The application of assimilationist philosophy to transgender marriage is, therefore, an obvious one. Assimilation means recognizing many of the prevailing social mores, including those that deny the validity of same-sex marriage. This is not to say that the assimilationist must wholeheartedly agree with those mores, but instead acknowledges their existence as a reality that governs her life. Recognizing that same-sex marriage is currently an impossibility leads the transwoman lesbian to recognize that she may not marry the partner of her desires — just like cisgendered[21] lesbians.[22]
As previously noted, the heart of the assimilationist model is the desire to “be like everyone else,” i.e. the vast majority who do not change their sex or gender. Part of the assimilation is recognizing that gay or lesbian couples are not permitted to marry. An argument for same-sex marriage in the transgender context, based on the exigencies of the transgender experience, is tantamount to a call for “special rights” and a recognition of the “otherness” of the transgender experience. Such a call runs counter to the assimilationist model, and must be rejected.
III.
The dilemma of the transsexual marriage goes far beyond the grant of employee benefits to same sex spouses. In many cases, the transsexual partner has served in the armed forces and has benefits that accrue to her wife by dint of marriage. Additionally, social security benefits are transferable from one spouse to another in a legal marriage. Congress has acted to forestall these marriage benefits to same-sex partners, though, by passage of the Defense of Marriage Act (DOMA), DOMA states that,
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ’spouse’ refers only to a person of the opposite sex who is a husband or a wife.[23]
In challenging this and similar state statutes by using the transgender marriage model, transgender activists seek to overturn the public policy against same-sex marriage.
Much of the underlying rationale for applying the transgender experience to same-sex marriages is embodied in the “transgender test for same-sex marriage.”[24] The “test” looks to the consequences of divorce. If a couple divorces either prior to or after one spouse changes sex and can later remarry, then no same-sex marriage is deemed to exist. However, if the couple could not later remarry, then a same-sex marriage exists. The outcome of such a test necessarily varies from jurisdiction to jurisdiction, and relies on whether the relevant jurisdiction acknowledges sex change as valid.[25] The fact that most jurisdictions have no clear policy on whether an individual can change her sex, linked with the fact that such policies are often set in the context of marriage disputes, poses the greatest threat to the transgender community.
Three possible outcomes may ensue from the transsexual challenge to same-sex marriage laws: 1) same-sex marriage may be declared 1 de facto legal in the transsexual instance and expanded to embrace homosexual cisgendered unions; 2) the newly acquired legal gender status of transsexual persons may be declared void, preserving the marriage as heterosexual and creating a host of other legal problems for the transsexual individual; or 3) (and this is the focus of this article) the courts may declare a marriage dissolved at the instant the transsexual partner crosses that legal line between male and female. Each of these possible outcomes has a different likelihood of success and will have different impacts on the transgender community and society as a whole.
In the first case, it is extremely unlikely the courts would recognize a same-sex marriage between two females, regardless of how the marriage was initiated. The question of whether to recognize a same-sex marriage has been declared a public policy question, and the legislatures, in the federal and numerous state jurisdictions, have spoken loudly and clearly: same-sex marriage will not be recognized.[26] As with most public policy questions, the courts are loath to assume jurisdiction over the issues presented. When presented with a de facto same sex marriage, declaration of its validity is least likely; the courts will seek some other solution to the dilemma before defining public policy judicially. Therefore, the remaining possibilities are most likely to be relied on.
The scenario by which sex-change is declared void is one that has been witnessed in the courts, albeit in different contexts. Different jurisdiction produce different results. As it presently stands, most jurisdictions recognize the validity of sex-change, although this recognition is rarely codified by statute. In most instances, new legal gender status is conferred administratively, by regulation or general policy, and has only occasionally been affirmed by judicial decree. In the few jurisdictions that do not recognize sex-change, statute or judicial order provide guidance. In either instance, the case law reflecting the status of the transsexual individual remains conflicting. It would seem that a challenge to an institution as sancrosanct as marriage would serve to tip the scale of precedence against recognition of sex-change and subsequently precipitate an avalanche that would cascade through other important legal areas affecting the transsexual individual. The possibility of this outcome is high and, although the impact on society as a whole would be minimal, the devastation to the transgender community would be complete.[27]
The third possible outcome of a transsexual challenge to same-sex marriage laws is one that has been cursorily discussed and dismissed out of hand by transgender activists.[28] It casts aside one of the prevalent assumptions in the transgender community that the state cannot dissolve a marriage that was valid at the time it was entered into without the consent of at least one of the partners to the marriage. It involves a synthesis of law relating to the definition of marriage, case law dealing with divorce, void and voidable marriages, and issues of consent. While it is difficult to determine the likelihood of this particular outcome prevailing under a transsexual challenge, the results are somewhat predictable: it would mark an increased intrusion of the government into the institution of marriage, giving overriding consideration to public policy in matters affecting basically private concerns. On the reverse of the same token, the transsexual community would be little affected, apart from the actual litigants themselves.
Our opening scenario, taken to its logical conclusion, provides us with a means by which the questions surrounding transgender matrimony may be examined. In the case of my acquaintance, she was pre-SRS, and although her official documentation showed her to be female, she would still be considered a male for many legal purposes.[29] It has been the case that a married couple remains married even after one partner completes the physical transition from one sex to the other. In most jurisdictions, the formerly male partner will now be considered female for all legal purposes. It is this scenario that presents us with a bona fide same-sex marriage. Each of the three possible results of a legal challenge to such a marriage is examined in turn.
1 A. Same-Sex Marriages Declared Legal
Public policy is overwhelmingly set against recognition of same-sex marriages. As the status of the Hawaii same-sex marriage case[30] became popularized, legislative reaction was swift. The federal legislature acted by enacting DOMA, which defines marriage as “the legal union between one man and one woman as husband and wife,”[31] and disallows recognition of same sex marriage for purposes of spousal benefits under tax law, social security, etc.[32] DOMA also contains a provision which seemingly abrogates the “full faith and credit” clause of the United States Constitution,[33] and allows states to refuse to recognize a same-sex marriage performed in other jurisdictions if it runs counter to that state’s public policy.[34] Responding to this provision, numerous states rushed to pass their own DOMA-type laws, each declaring that state’s public policy to recognize marriage as a union between “one man and one woman.” Despite the fact that Hawaii (or Alaska[34]) has not yet recognized same-sex marriage as valid, the “rush to public policy” of other jurisdictions has set the stage for many different challenge, among them, the transsexual challenge.
Courts have traditionally been reluctant to rule on controversies implicating public policies, whether overtly declared as such or not. As a result, in areas as diverse as securities regulation[36] and abortion,[37] courts have deferred in their judgments to legislative declarations of what the public policy is, whether the legislature has expressly declared the public policy or not. In the case of same-sex marriage, public policy has been unquestioningly declared: such unions are invalid under federal law, and states are given free rein to declare such unions invalid within their jurisdictional powers.
The judicial challenge to same-sex marriage statutes and policies most likely to be successful is regarded as being on the constitutional front, that is, same-sex marriage policies may be declared void because they are unconstitutional. Such challenges have been brought on the state level with positive results. In one instance, it is argued that denying marriage on the grounds that both partners are of the same sex is violative of state constitutional prohibiting discrimination on the basis of sex. Such tactics were used in 1 Baehr v. Lewin.[38] Another argument is one based on fundamental rights, i.e., that the right to choose one’s life partner is fundamental. This is the tactic used in Alaska in1 Brause v. Bureau of Vital Statistics.[39] In both cases, the court was asked to examine the state policy under a strict scrutiny standard. The court acquiesced, and declared that the state must demonstrate a compelling interest served by prohibiting same sex marriages. Both cases are still in litigation and are unresolved.
Even should individual state courts determine same sex marriages valid within their jurisdiction, this will not necessarily translate to an across-the-board national recognition of same-sex marriage, nor does it assure that the benefits of marriage enjoyed by a same-sex couple in their own jurisdiction will follow them to other jurisdictions. At issue here is the abrogation of the “full faith and credit” doctrine when considering public policy and same-sex marriage.
The course of discussion within the gay community at large regarding the “full faith and credit” clause revolves around the wording of the DOMA and the constitutional provision itself. Section 2, of the Act, entitled “Powers Reserved to the State,” amends 28 U.S.C. § 1738, by adding section (c), which states: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right of claim arising from such relationship.”[40] While proponents of same-sex marriage argue that this provision violates the “full faith and credit” provision of the Constitution,[41] opponents refer to the second sentence of the provision as empowering the legislature’s enactment: “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”[42] Whereas divorces have been held to be judgments that other states must generally recognize,[43] marriages themselves have not been declared as such.
Different jurisdictions have different laws regarding what constitutes a valid marriage. Many of the differences revolve around age and consanguinity considerations. Generally, marriages entered into in one jurisdiction are recognized by other jurisdictions, even if those marriages would not otherwise be permitted. in the host jurisdiction.[44] On occasion, however, one state will refuse to recognize a marriage performed in another jurisdiction.[45] It is entirely unclear how the court’s would rule on a case challenging section 2 of DOMA, even assuming any state may decree same-sex marriages legal. But, given the strength of public policy expressed in the statute (and in numerous state statutes purporting to refuse to recognize a same-sex marriage performed outside those states), it would not be surprising to see the court back that policy, and find that the Congress was empowered to act as it did.
It has been suggested by some commentators that one solution to the dilemma of same-sex transgender marriages might be to declare that transpeople might be permitted to marry a person of either sex.[46] Such a solution, however, raises Constitutional issues of its own. Permitting transgendered people to marry persons of either sex would have the effect of creating a class of persons who are granted special privilege to not abide by state marriage laws. It is difficult to see how such a privilege would withstand Constitutional challenge. Moreover, from a political perspective, this privilege would serve to further set transgendered people apart as a distinct class. While it is true that a person granted such privilege need not necessarily exercise that privilege, the mere existence of the possibility will not fail to be noticed by those who already view transgendered people in a negative light. Ergo, from the assimilationist position, this solution is undesirable and should be resisted.
1 B. Transgender Status Declared Void
The second possibility considered by many in the transgender community is that the courts may declare transgender marriages valid, but concomitantly declare that the transgendered spouse never actually changed her sex. In contrast to the first possibility, this alternative presents a real likelihood of occurring — precedents from related cases supporting this argument have already been established. The effect of this type of decision on the transgender community would be devastating.
Under the assimilationist model, the goal of most transgendered individuals is to slip into their new life as their new sex in as unobtrusive a manner as possible. Legal documentation is crucial to that goal. A transwoman forced to identify herself legally as a male is foreclosed from many activities and privileges enjoyed by cisgendered women, perhaps most importantly for the heterosexually identified transwoman, the right to marry a man.[47] The end goal of transition, fraught as it is with emotional struggle, extensive medical intervention and financial burden, would be for naught.
Established case law suggests that it would not be improper for a court to declare sexual transition null. As it stands, only ten states provide statutory law permitting one to change one’s legal sex designation after completing SRS.[48] In most jurisdictions, the process is informal, depending on no more than agency policy and interpretation of regulations to accomplish the goal.
The principle case supporting the “no sex-change” doctrine is 1 In re Ladrach,[49] a probate court case from Ohio. In 1 Ladrach, a post-operative transwoman and a man applied for a marriage license and were denied. In rendering its decision, the court eschewed persuasive rulings from sister jurisdictions[50] and relied instead on British common law. Citing 1 Corbett v. Corbett[51], the 1 Ladrach court stated,
There was no evidence that applicant at birth had any physical characteristics other than those of a male and he was thus correctly designated “Boy” on his birth certificate. There also was no laboratory documentation that the applicant had other than male chromosomes. There has been nothing shown to this court to cause it to change the existing Ohio law. Therefore, the application of Elaine Frances Ladrach to obtain a marriage license as a female person is denied.[52]
Thus, Ladrach’s proposed marriage to her fiancee was a marriage between two men, a union disallowed in Ohio.
The effect of 1 Ladrach is that, in Ohio, a transgendered individual may not marry an individual she and the rest of society perceives to be of the opposite sex.[53] The transwoman’s goal of unobtrusively assimilating into society as a member of her new gender and sex is barred.
As Leane Renee notes in her discussion of transgender marriage issues, “transsexuals with a valid birth certificate generally marry without incident. In most cases, judges only step in to deny transsexual identity when the marriage is challenged after-the-fact.”[54]. This is the precisely the scenario proponents of the transgender challenge to same-sex statutes advocate: precipitating a legal challenge to a same-sex transgender marriage and asserting that the state cannot unilaterally sunder the bond, so it must be recognized. The track record of cases dealing with transgender marriages in general does not support the proposition that any court will look kindly on a same-sex transgender union.
1 C. Transgender Marriage Declared Void
In contrast to the aforementioned arguments, a third alternative exists — that the courts may determine that the same-sex marriage is unlawful and that the legal status of the transgendered spouse is valid, but that the former marriage is void. Acceptance of this alternative requires one to dispose of the assumption underlying the reasoning of the first two alternatives, i.e., that the state may not unilaterally dissolve a marriage legally valid at its inception against the express wishes of the spouse involved. Once one is disabused of this notion and recognizes that states can — and, in fact, do — unilaterally dissolve valid marriages, one can see a solution to this dilemma that, while negatively impacting on the litigants themselves, does not run counter to public policy nor threaten the basic goals of the transgender community.
Distinguishing between 1 voidable and 1 void marriages is central to understanding how a state can unilaterally declare a marriage invalid. A 1 voidable marriage is one that is facially flawed, but one wherein the defect can be corrected and the marriage preserved. The most common type of voidable marriage is one in which one or both partners are below the legal age of consent. Most jurisdictions that prohibit underage marriages provide that, should both parties reach legal age and reaffirm the union by continuing to cohabitate as husband and wife, the voidable marriage is converted into a valid marriage and is thereafter unassailable on those grounds.[55] Generally, only a party to a voidable marriage has standing to challenge the validity of such a marriage, provided the defect has not been cured.
In contrast, a 1 void marriage is one that contains a defect that cannot be cured; it is void from its inception and cannot be enforced.[56] A prime example of a void marriage is one in which the parties are prohibited from marrying because of relationship, i.e., siblings, descendants, or, in some jurisdictions, first cousins. A void marriage may be declared a nullity by judicial process or, in some jurisdictions, may be treated as null without process. Generally, and in contrast to voidable marriages, a void marriage may be challenged collaterally by parties other than the involved spouses.[57]
States that prohibit same-sex marriages generally do so by considering them void and would logically subject them to provisions controlling other void marriages as defined within that jurisdiction. Obviously, then, an alleged marriage entered into by two males or two females would be void 1 ab initio, that is, from its inception, and would never be enforced within that jurisdiction.[58] Quite as obvious, then, would be the fact that a transgendered individual who successfully and legally attains a change of sex cannot afterward legally marry a partner of the same sex as her new sex. This is the core rationale underlying the “transgender test for same-sex marriage” mentioned above. The dilemma the married transgendered spouse faces is that when her marriage was entered into, it was a facially valid and unassailable union. The question thus presented is whether the state can declare an initially valid marriage invalid once that marriage subsequently enters into the bounds defining void marriages. Precedence suggests the answer to this question is “yes.”
In all jurisdictions, a marriage is declared dissolved upon the death of one of the spouses. While this may seem only sensible, the concept become fuzzier when one considers the effect of “civil death.”[59] In Maine, for instance, a marriage is considered “void and dissolved” 1 by operation of law and without resort to process once a spouse is committed to a life sentence in prison.[60] In this instance, civil death may be considered equivalent to actual death, with the same final effect on marital status.[61] It is this “operation of law” principle that holds the key to resolution of the transgender marriage.
Each of the states that prohibit same-sex marriage generally do so by defining marriage as being the legal union of “one man and one woman.”[62] Any union falling outside these definitions is 1 by definition not a marriage, whatever else it may be. Early challenges to same-sex marriage statutes foundered upon this principle.[63] So too, then, will the transgender same-sex marriage founder.
People do not undergo sex-change procedures involuntarily, fantasy assertions to the contrary.[64] For instance, men who are castrated by accident or because of medical need do not automatically assume female identities as a result.[65] Pursuant to the assimilationist view, each person who voluntarily makes the transition from one sex to the other does so with full knowledge of the expectations and restrictions society places on each sex. Part of that knowledge is necessarily the recognition that same-sex marriages are not yet permitted in any jurisdiction on Earth. By changing her sex, the transgendered member of a marriage 1 voluntarily moves her union with her spouse outside the definition of what constitutes a valid marriage. A court would be well justified, then, in declaring that, 1 as an operation of law, the marriage became void at that instant when the transgendered spouse accomplished her legal transition.
If prevailing law permits a void marriage to be treated as such without process, the spouse of a transgendered individual may be justified in considering the union dissolved and simply walking away from it. Depending on the jurisdiction, though, she may be required to petition the court for a declaration of invalidity. Or, as sometimes happens, she may wish to stand by her spouse and consider the marriage intact. Absent outside interference, such a marriage may remain intact. The mutual desire of both partners to maintain the union does not protect it from attack, however. Void marriages can be challenged collaterally.
The scenario described at the beginning of this section provides an illustration of how such a marriage might be challenged collaterally and voided. Suppose our post-SRS employee seeks to have her wife placed included in her benefits plan at work. Or, perhaps she seeks Veteran’s or Social Security benefits for her wife. In either case, the request may be denied under the argument that, since same-sex marriages are not recognized, her wife is not a legal spouse eligible for benefits. Our transwoman has two options: she can accept the rejection or she can challenge it. If she chooses to challenge it, the administrator may well challenge the validity of the marriage as an affirmative defense to the denial, arguing that because both spouses are the same-sex the marriage cannot be considered valid. Should the controversy ever reach the judicial system, the court may rule just that — the marriage is invalid, by operation of law. The result would be that the transgender marriage would cease to exist, although the legal status of the transwoman herself would persist. While this would be a negative outcome for the particular couple involved, the public policy of society at large would be preserved, as would the needs of the transgender community.
V.
From an assimilationist point of view, a challenge to same-sex marriage laws is fraught with possibly devastating consequences on the transgender community. However, should such a challenge be mounted, one outcome might be one where the legal sexual status of the transgendered partner to such a union is held intact but the marriage itself is voided. This result would affirm the stated social policy of prohibiting same-sex marriages, while simultaneously affirming the goals of the transgender community, that is, legal recognition of the ability to change one’s sex and gender.
ENDNOTES
* Judicial Law Clerk, Commonwealth of Pennsylvania Superior Court, Judge Peter Paul Olszewski, Wilkes-Barre, Pennsylvania. J.D. 1998, Temple University School of Law; B.S. 1984 Clarion University of Pennsylvania. An earlier draft of this article was the 1998 recipient of The Smith and Leibel Family Law Award. I wish to express my appreciation to Professor Michael Libonati for his technical and theoretical assistance and support, and to the many unnamed members of the transgender community throughout the United States and Europe who, through the sharing of their experiences and concerns, gave seed to this project.
1 The terms “transsexual” and “transgender” are often used interchangeably and, depending on the context in which they are used, are very similar in meaning. “Transsexual” is a medical term used to classify those individuals who have a persistent desire to modify their bodies, through hormonal therapy and surgery, from the form of their birth sex to a form more closely approximating the opposite sex. The term is thought to be derived from the early medical studies conducted by Drs. Harry Benjamin and John Money. “Transgender” is a term of political identity coined by members of the community. It is intended to be an inclusive phrase and encompasses not only transsexual people, but also transvestites, impersonators, transgenders, intersexed persons, drag queens, butch dykes and other “gender variant” people. 1 See generally Gender Vocabulary, fact sheet distributed by Action AIDS, 1216 Arch Street, Philadelphia, Pennsylvania 19107 (defining street terms related to the transgender community); Debbie Mitchell, 1 Defining Transvestism, 70 Tapestry j. 35, 35-36 (1995) (discussing different subdivisions of transgendered persons); Martine Rothblatt, The Apartheid of Sex, 16-19 (1995) (discussing distinctions between transsexuals and crossdressers within the transgender community).
2 1 See, Mary Coombs, 1 Sexual Dis-Orientation: Transgendered People and Same-Sex Marriage, 8 UCLA Women’s L.J. 219, 257-65 (1998). In addition to published authority, much of the material in this article regarding the experiences and political positions of members of the transgender community is gleaned from conversations between community members and the author occurring at numerous conventions, symposia and support group meetings throughout the northeastern United States. Information regarding individual experiences and opinions is also taken from numerous Internet e-mail and newsgroup discussions among community members.
3 The terms “post-operative” and “pre-operative” (or “post-op” and “pre-op”) refer to the surgical process of sexual transition. Within the transgender community “the operation” refers specifically to genital surgery. In the male-to-female transsexual woman, this involves removing the testicles and spongy erectile tissue of the penis, inverting the penile skin into a cavity placed in the pelvic girdle to create a nerve-rich vaginal lining, shortening the urethra and re-routing it in a downward direction, trimming and fashioning the glans into a sensate clitoris and folding and stitching excess scrotal tissue into labia. Occasionally, a small section of the colon is used to create a self-lubricating vaginal canal. In the female-to-male manl, the ovaries and uterus are removed, the vaginal opening closed, and a penis fashioned from skin grafts and an erectile prosthesis is attached. [lots of references]
In terms of aesthetics and sexual function, the neo-vagina is often indistinguishable from a natal vagina. By contrast, the neo-penis rarely compares favorably to its natal counterpart. The vast difference in the ability of surgeons to fashion female and male genitals has lent support, intentionally or not, to commentators asserting an inherent patriarchal bias underlying medical science. 1 See generally Janice Raymond, The Transsexual Empire: The Making of a She-Male, (198x) (arguing that surgically creating females from males reflects the male-dominated societal view of the medical industry).
4 An example of such a marriage would be the union of a post-operative transsexual woman (“transwoman”) and a natal male. Since the issues presented in this essay are as equally applicable to transwomen as they are to transmen, references to transpeople will generally be made in the feminine (i.e., male-to-female transgendered person, either pre-operative of post-operative), unless context demands otherwise.
5 1 See infra note xxx and accompanying text for a discussion of state laws permitting and disallowing such marriages.
6 For purposes of this article, the transgendered people being discussed are post-operative, that is, they have had sexual reassignment surgery (“SRS”) and are legally recognized as members of their new sex. It must be noted, however, that not all transpeople who undergo SRS are recognized as members of their new sex. 1 See infra note xxx and accompanying text for a discussion of jurisdictions that do not permit modification of birth records to reflect surgical reassignment.
7 This article will not address the case of the pre-operative transgendered person who marries a differently-gendered person, i.e., a transwoman who retains her penis and marries a natal man. Such a marriage would technically be considered a same-sex marriage and would be universally recognized as being invalid. 1 See, e.g., David J. Ralis, County Wants To Know: Is The Groom A Guy?, The Times Leader, Wilkes-Barre, PA, August 18, 1998, at 1A-2A (reporting county’s investigation into issuance of license between pre-operative female-to-male man and natal woman). The challenge arises when the transwoman, subsequent to marriage, undergoes SRS and becomes legally recognized as female. Does the formerly invalid marriage to her husband then become valid? Can such a marriage be successfully challenged post-SRS? Such questions are left open for a different article.
8 Transgender activists, as a rule, tend to operate either as individuals or as members of small, personality-driven organizations. The community is marginalized and nascent, and as yet does not possess one unifying organization that represents the consensus of the community strategically and politically, although numerous regional organizations and one special-interest lobbying organization do exist.
9 The issue of transgender marriages was perhaps first raised academically in Comment, Susan L. Phillips, 1 Chromosome Loophole: Homosexual Marriages Should Be Legalized Based on Transsexual Marriages, 7 Adelphia L.J. 73 (1991). Phillips argued that marriages involving one transsexual spouse, while somatically differently-sexed marriages, are same-sex marriages when viewed genetically, thus allowing transsexual marriages to open the door to same-sex marriages). For a different twist to the debate, see 1 Rothblatt, supra note 2, at 79-85 (arguing that transsexual marriage applicants declaring themselves as neither male nor female would be ideal candidates for challenging current marriage laws).
10 Gathering from anecdotal information and discussions with members of the transgender community, this author observes that, by and large, those transgendered persons who identify as gay or lesbian support the proposal, while those who oppose the idea are predominately heterosexual.
11 1 See, F. Abraham, 1 Genital Reassignment on Two Male Transvestites, Inter. Journal of Transgenderism, vol. 1, no. 3 (1998) (available online at <http://www.symposion.com/ijt/ijtc0302.htm>); 1 originally published as F. Abraham, 1 Genitalumwandlungen an zwei m141 nnlichen Transvestiten, Zeitschrift fcr Sexualwissenschaften und Sexualpolitik, 18: 223-226 (1931). As noted, the general public was unaware of transsexual surgery until the news of Christine Jorgensen’s surgery was made public in 1953. 1 See generally, Christine Jorgensen, Christine Jorgensen: A Personal Autobiography (1967).
12 1 See Andrew Jacobs, His Debut as a Woman, The New York Times Magazine 48, 50 (Sept. 13, 1998) (reporting estimates released by International Foundation for Gender Education).
13 For instance, the most legendary SRS surgeon, Dr. Stanley Biber, practices as a general surgeon and has performed an estimated 10,000 surgeries since 1967 in the tiny [30 bed Sisters of Mercy hospital] in Trinidad, Colorado. Likewise, another world-renown surgeon, Dr. Eugene Schrang, performs surgeries in the small mill town of Neenah, Wisconsin.
14 The standards of care promulgated by the Harry Benjamin International Gender Dysphoria Association in 1980 establish protocols to be followed by physicians and surgeons treating transgendered persons. Some of the provisions call for six months’ psychological counseling before hormonal therapy, dual psychiatric referrals for surgery, and a one year minimum “real life test” (RLT), that is, living, working and functioning socially exclusively as a member of the target gender before approval for surgery. [citation]
15 M.J. Lucas, Let Me Die A Woman: The Why and How of Sex-Change Operations [xx] (1978).
16 It is reported that the incidence of female-to-male transsexuals remaining married to their husbands is very small. For a discussion of the social factors considered by heterosexual males involved in transgender marriages, see note xx, 1 infra.
17 1 See notes xx-xx, 1 infra, and associated text for a discussion on legal change of sex in states that permit such change.
18 See notes xx-xx and accompanying text for a discussion of legislatures’ declarations of public policy regarding same-sex marriages.
19 Unfortunately, for many transpeople, getting on with life in the present includes being constantly faced with negative reminders on one’s past. Survey results released by GenderPAC (a special interest lobbyist organization for transgendered people) suggest that nearly 60 percent of transgendered people have been assaulted solely because of their transgendered status. 1 See Jacobs, note 13, 1 supra, at 50.
20 1 See, e.g., Jessica Xavier, Choosing Terms of Empowerment, 71 Tapestry Journal 51 (Spring 1995).
The assimilationist walks a fine line between honesty and deceit. For instance, vigorous discussion at transgender support groups often revolves around when a transwoman should inform her lover of her past history as a male. A small minority asserts that the other partner need never be told; a larger number hold that a partner should be told upon first meeting. The majority, though, believes that a partner need be told only when the relationship becomes serious, i.e., when the “L word” (“love”) is uttered — biding, however, by the caveat that if the transwoman senses the partner will react extremely negatively or violently, the relationship should be broken off with no revelation.
The consequences of extreme “closeting” can be heart-rending. This author is aware of one instance, related to her anecdotally, where three male half-siblings declared themselves transgendered, Additionally, their father had gone through transition a few years previously and had relocated to establish a new family, married a man and adopted children as their mother — all without their knowledge of her past as a male. She was subsequently unable to help her children from her first marriage through the trials of their transitions.
Concealing one’s transgendered status from a spouse may be grounds for annulment on grounds of fraud. 1 See,1 e.g., Anonymous v. Anonymous, 325 N.Y.S.2d 499 (1971) (marriage annulled after husband discovers on wife has penis); B. v. B., 355 N.Y.S.2d 712 (1974) (seventeen years marriage annulled after wife discovers husband has no penis); 1 but see, M.T. v. J.T.,355 A.2d 204 (N.J. Super. Ct. 1976) (annulment of marriage between man and post-operative transwoman wife denied because husband had knowledge of wife’s transgender status before marriage).
21 The term “cisgendered” is one used within transgender discussion to describe those individuals who do NOT change their sex or gender, and remain the same sex or gender throughout their lives. It is derived from the root “cis,” meaning the opposite of “trans.”
22 One of the more interesting phenomena of the transgender political movement this author has noticed is the fact that the majority of the nationally recognized activists identify themselves as lesbian. This may, in fact, be a result of assimilationist philosophy. As male-to-female transwomen complete their transition and settle into their new lives, those who identify themselves as heterosexual tend to assimilate to the point of entering so-called “normal” committed relationships with men. Those who identify as lesbians find themselves, even after transition, marginalized from mainstream society to some degree because of their homosexuality. Additionally, the psychosocial reality of the heterosexual transwoman involved in a relationship with a man tends to pull her away from open activism: social stigma attaches to an alleged heterosexual man once it becomes known his girlfriend or wife is or once was a male. The stigma can often become too great to allow the relationship to continue. In the balance between personal happiness and political activism, the assimilationist transwoman will usually choose happiness.
23 P.L. 104-199 § 3(a); 1 U.S.C.A. § 7.
24 The “transgender test for same-sex marriage” is actually an argument that has developed out of discussions within the transgender community regarding same-sex marriages. It is an informally posited concept that goes by a number of different names. The original developer of the idea is unknown.
25 It follows logically that in jurisdictions such as Ohio and Tennessee where change of sex is not recognized, a couple with a transgendered partner may remarry after sex-change because, in spite of the physical and social changes, the transgendered partner is still considered a member of her old sex. The author is personally aware of one such marriage entered into by two men, one a female-to-male transsexual, in Cleveland, Ohio, during July, 1998.
26 “A same sex marriage may not be recognized by the state as being entitled to the benefits of marriage.” Ak. St. 25.05.013(b). The following states also specifically prohibit same-sex marriages: Maine, 19-A M.R.S.A. § 701(5); Arizona, A.R.S. § 25-101; Arkansas, A.C.A. § 9-11-109; Georgia, Code 19-3-3.1; Hawaii, HRS § 572-1; Indiana, IC 31-11-1-1; Kansas, K.S.A. § 23-101; Maryland, Code, Family Law § 2-201; Michigan, M.C.L.A. 551.4; Minnesota, M.S.A. § 517.01; Montana, MCA 40-1-401; Nevada, N.R.S. 122-020; North Carolina, G.S. § 51-1; Ohio, R.C. § 3101-01; Pennsylvania, 23 Pa.C.S.A. § 1704; South Carolina, Code 1976 § 20-1-15; South Dakota, SDCL § 25-1-1; Tennessee, T.C.A. § 36-3-113; Utah, U.C.A. 1953 § 30-1-2; Virginia, Code 1950 § 20-45.2.
27 The inability of a transgendered individual to legally change her sex after SRS has implications that go far beyond marriage issues. For instance, a transgendered prisoner may be housed with other prisoners who are the same as her birth sex. Most importantly, though, is the ability to possess legal identification congruent to one’s apparent sex. Every employer is required to check identification for immigration purposes; incorrect identification can lead to embarrassing questions at the least, to outright discrimination and refusal to hire. Such situations serve only to marginalize the transgendered person even more. If no transgendered person was able to obtain sex-congruent identification, a whole class of marginalized people would be created. 1 See also notes 14-15 and accompanying text for a discussion of the assimilationist view and its application to the transgender community.
28 1 See, e.g., 1 Coombs, note 3, 1 supra, at 264-65. Coombs covers the issue with in a single sentence within her article on transgender marriage: “Despite the trepidation of some of my respondents, the later surgery is not likely to void an existing different-sex marriage.” 1 Id. No authority is given for this assertion.
29 The instance of a biological male being considered female for other identification purposes presents issues beyond the scope of this paper.
30 Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 1993).
31 P.L. 104-199 § 3(a); 1 U.S.C.A. § 7.
32 P.L. 104-199 § 3(a); 1 U.S.C.A. § 7.
33 For a general discussion of the “full faith and credit” clause and its implications for DOMA, see Daniel A. Crane, 1 The Original Understanding of the “Effects Clause” of Article IV, Section 1 and Implications for the Defense of Marriage Act, 6 Geo. Mason L. Rev. 307 (1998). For contrasting analyses on the constitutionality of DOMA, 1 see generally, Jon-Peter Kelly, 1 Act of Infidelity: Why the Defense of Marriage Act is Unfaithful to the Constitution, 7 Cornell J.L. & Pub. Pol’y 203 (1997) (arguing that DOMA violates the “full faith and credit” clause); Lynn D. Wardle, Doma: 1 Protecting Federalism in Family Law, 45-FEB Fed. Law. 30 (1998) (arguing that DOMA does not violate the “full faith and credit” clause)..
34 P.L. 104-199 § 2(a); 28 U.S.C.A. § 1738C.
35 The Alaskan Supreme Court has likewise ruled on the issue of same-sex marriages. 1 See Brause v. Bureau of Vital Statistics, [cite] 1988 WL 88743 (Feb. 27, 1998) (holding that same-sex marriage policy impinges negatively on fundamental right to choose one’s life partner).
36 Lowe v. Securities and Exchange Comm’n, 472 U.S. 181, 213 (1985) (White, J., concurring) (“The task of defining the objectives of public policy and weighing the relative merits of alternative means of reaching those objectives belongs to the legislature.”)
37 Hodgson v. Minnesota, 497 U.S. 417, 490 (1990) (Kennedy, J., concurring/dissenting) (“[W]e must defer to a reasonable judgment by the state legislature when it determines what is sound policy.”)
38 74 Haw. 530, 852 P.2d 44 (1993).
39 1998 WL 88743 (Feb. 27, 1998)
40 P.L. 104-199 § 2(a).
41 U.S. Const. art. 1, § 1
42 U.S. Const. art. 1, § 1.
43 Williams v. North Carolina, 317 U.S. 287 (1942); 325 U.S. 226 (1945).
44 1 See, e.g. Thomas v. Sullivan, 922 F.2d 132 (2d Cir. 1990) (recognizing common la marriage); Wilkins v. Zelichowski, 129 A.2d 459 (N.J. Super 1957) (recognizing “child marriage” performed in foreign jurisdiction); 1 In re Miller’s Estate, 214 N.W. 428 (Mich. 1927) (recognizing marriage entered into in foreign jurisdiction between first cousins).
45 1 See, e.g. 1 In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1927).
46 1 Coombs, note 3, 1 supra, at 264-65.
47 1 See, e.g., Cossey v. United Kingdom, 13 EHRR 622 (1991). Caroline Cossey, also known as “Tula,” was an internationally known fashion model and movie actress who had been born in England as a male. She petitioned the government to change the sex designation on her birth certificate, to allow her to marry. The government refuse to change her designation, and she appealed. The European Court of Human Rights held that the United Kingdom’s policy of refusing to recognize change of sex violated no Human Rights Regulations.
48 California, Cal. Health & Safety Code § 103425; Hawaii, HRS § 338-17.7; Illinois, Ill. St. 410 § 435/17; Iowa, I.C.A. § 144.23; Louisiana, LSA-R.S. 40:62; North Carolina, G.S. § 130A-118; Oregon, O.R.S. § 33.460; Utah, U.C.A. 1953 26-2-11; Virginia, Code 1950 § 32.1-269; Wisconsin, W.S.A. 69.15.
49 513 N.E.2d 828 (Ohio Prob. Ct. 1987).
50 1 E.g., M.T. v. J.T., 355 A.2d 204 (N.J. Super. Ct. 1976).
51 2 W.L.R. 1306 (1970). In 1 Corbett, the court was faced with an annulment proceeding brought by a transvestite husband against his post-operative transgendered wife. SUbstantial evidence was presented establishing the fact that the wife was somatically a female and was capable of performing sexually as a female. However, the court gave more weight to evidence of birth records and genetic testing, and declared that, despite all outward appearances, the wife was actually a male and granted the annulment.
Such a finding runs counter to common sense and standard medical practice. With virtually every child born, sex is determined by visual examination by the obstetrician or midwife facilitating the delivery. Sex is solely determined by the appearance of the genitalia. This author is unaware of any instance where, absent deformity or an ambiguous appearance of the genitals, sex determination at birth awaited the outcome of genetic testing. 1 Corbett turns this basic principle on its head and looks to chromosomes rather than genitals to determine a person’s sex. Were chromosome testing for sex such a widespread standard practice, it is suggested that upwards of one in five-hundred otherwise female women would fail and be declared male. 1 See Rothblatt, note 2, at 71.
52 1 Ladrach, 513 N.E.2d at 832.
53 It should be noted that, administratively, Ohio permits the sex designation on other forms of identification such as driver’s licenses to be changed, reflecting the person’s new sex. Such a policy effectively allows the transgendered person to completely assimilate as a member of her new sex in all ways except for matrimony. For most people, this remaining restriction is substantial.
54 Leane Renee, 1 Impossible Existence: The Clash of Transsexuals, Bipolar Categories, and Law, 5 Am. U. J. Gender & L. 343, 372 (1997).
55 1 See., e.g., 23 Pa.C.SA. § 3305(b), which reads:
In all cases of marriages which are voidable, either party to the marriage may seek
and obtain an annulment of the marriage but, until a decree of annulment is obtained
from a court of competent jurisdiction, the marriage shall be valid. The validity of
a voidable marriage shall not be subject to attack or question by any person if it is subsequently confirmed by the parties to the marriage or if either party has died.
1 See also, Abel v. Waters, 373 So.2d 1125, 1128 (Ala. 1979) (holding that voidable marriage may be ratified after removal of the defect)
56 1 See, e.g., 16 V.I.C. § 1, which states that “a marriage is prohibited and void from the beginning” if it violates certain prohibitions on consanguinity.
57 1 Id., stating that “nullity may be shown in any collateral proceeding.”
58 The instance of a man marrying a pre-operative transwoman further complicates the picture. Should the transwoman subsequently undergo SRS and legally change her sex, would the “defect” of the “void” marriage thus be cured, rendering it merely voidable and subject to reaffirmation?
59 The effect of “civil death” on marriage is exemplified by Rhode Island Gen. Laws 1956, § 15-5-1, which states:
Divorces from the bond of marriage shall be decreed in case of any marriage
originally void or voidable by law, and in case either party is for crime deemed to
be or treated as if civilly dead, or, from absence or other circumstances, may be
presumed to be actually dead.
Many commentators have noted that early marriage laws actually operated to created a “civil death” to women, by eliminating their rights to own property, enter into contracts, etc. 1 See Chery Harris, 1 Finding Sojourner’s Truth: Race, Property, Gender, and the Institution of Property, 18 Cordoza L. Rev. 309, 349-50 (1996).
60 19-A M.R.S.A. § 751(2).
61 One attractive but misleading assimilationist argument might be that the transgendered individual has undergone a “civil death” by adopting a new identity, thus ending the marriage entered into under the old identity. The reality, though, is that the individual’s past life follows them into their new life, in the form of social security records, driving records, credit records, academic records, medical records, etc. In fact, it would be foolish for the transgendered individual to declare her old self dead and start from scratch with a new identity — creating a newborn person already well into her second or third decade of life is a well-nigh impossibility.
62 1 See supra, notes xx-xx and accompanying text for a discussion of how states define marriage.
63 1 See, e.g., Singer v. Hara, 11 Wash App. 247, 522 P.2d 1187 (1974) (holding that “appellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex.”)
64 Sexual fantasies of “forced feminization” lurk at the fringes of the transgender community, but actual incidents of such behavior are exceedingly rare. As with most fantasy behaviors, i.e., bondage, masochism and sadism, forced feminization involves an acknowledged, if not overt, agreement between the participants setting limits and boundaries — in short, permission.
65 One notable exception is the documented case of Karen Kerin. In her testimony before the United States Senate Labor and Human Resources Committee on July 27, 1994, she told how she was forced to change her sex as a result of illness, purported to be metastasized testicular cancer.
