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  1. irishgirl
    irishgirl April 28, 2008 at 8:31 pm |

    What the Brunners are doing is creating a storm of publicity that will invariably harm people who are in worse positions them themselves.

    For whatever issues they might have problems with, they still enjoy the legal benefits of marriage as they entered into it while a straight couple.

    Without even going into what blowback this article and it’s copy stories will do (their is a rumor NBC is looking for people to interview about this), in the immediate sense it’s already goaded quotes from two Federal Agencies that have been making life harder for Trans people in recent years, and are currently headed by republican appointees.

    For all the people in this country who are in a weird situation by not having marriage rights, people like the Brummers are at the low end of it – they are already married.

    Also on the article itself, there is a very telling exchange where Denise goes on and on about her CD’ing habit, and her wife explains how it hurt their family. The writer paints a picture of a put-upon wife with an “eccentric’ husband.

    More thoughts!

  2. the opoponax
    the opoponax April 28, 2008 at 8:52 pm |

    Very, very OT, but since when did the Times go back to using Mrs? I remember it being a big deal when they changed their style sheet and decided to start using Ms. as the default title for a woman regardless of marital status.

  3. Holly
    Holly April 28, 2008 at 9:41 pm |

    Unfortunately, I tend to agree with irishgirl. The most likely result of more attention on trans people’s marriages is the further removal of rights — more scrutiny of everyone who tries to get married, more policies on the books denying trans people that right, even legal dissolution of marriages could be on the table. Trans people could wind up unable to get married to anyone, and I wouldn’t be surprised. Attention is not good, not under our current government, and maybe not for years.

    However, let’s face it — marriage is a rather unequal area in our society to begin with. Some people (heterosexuals) have the privilege of being able to have their unions legally recognized by the government, along with all the benefits and rights that confers. Other people don’t have that privilege, and yet other people, who the government can’t always make up its mind about, are teetering on the edge. Most any trans person’s marriage is a fragile thing that could break apart legally if faced with a strong challenge or a hostile, powerful institution. And that’s definitely a reason to try and protect trans people’s marriages, individually and as a class.

    Insofar as trans people are able to get and stay married, they have marriage privilege. It’s a privilege that may get battered, partly lost, or entirely lost on the way to trying to expand that privilege to cover everyone. It sucks — especially because it’s not like there’s much of anything threatening the marriages of the most established class of folks, straight people, despite all the whining from the right about “threatening the institution of marriage.” You want to see people whose marriages are literally, actually threatened by the increased scrutiny and upheaval over same-sex marriage? It’s trans people.

  4. kathygnome
    kathygnome April 28, 2008 at 9:44 pm |

    I think the worst thing about transsexual people and marriage is the lack of certainty. As far as I know only NJ and California are on the record as recognizing transitional gender, Ohio, Kansas, Florida, and Texas are on record as refusing to. And of course, Massachusetts could care less–but if you’re married here are you federally married or not?

    The status of an existing marriage in terms of the various DOMA is, as far as I’ve seen, entirely unheard by courts.

    I warn people to assume their marriage could be declared void at any time and make contractual arrangements, but I see so many people burying their head in the same and assuming if they get a marriage license, they will be married and nobody can take it away.

  5. Lauren
    Lauren April 28, 2008 at 10:03 pm |

    It always surprises me that jurisdictions can get away with denying trans folks the ability to marry *anyone*, a situation that is so blatantly unconstitutional, but that does seem to be the de facto result of this legal limbo in many places. And certainly, I’ve seen the Focus on the Family types arguing explicitly for just this very outcome.

    The fact that different jurisdictions define one’s gender in different ways means that you may find yourself married in one state but not in another, and woe to you if someone brings a legal challenge in that state.

  6. irishgirl
    irishgirl April 28, 2008 at 10:10 pm |

    @ Lauren

    I don’t think that Trans people not being able to marry is on the table right now. With increased attention who knows what might happen, but this is what makes Denise Brummer looking for this publicity even more mind boggling.

    Qoute from the article from the baddies

    Legal groups that have fought to preserve traditional marriage are less concerned with couples like the Brunners than those like the Littletons, who seek a heterosexual union after surgery.

    “What you’re born with is what you are,” said Mathew Staver, the founder of the Liberty Counsel, a nonprofit organization in Florida, who successfully argued the final stages of the 2004 Florida case. “It’s the same as if you go through plastic surgery to look like Marilyn Monroe, but you’re still not Marilyn Monroe.”

  7. Cuntlovin
    Cuntlovin April 28, 2008 at 10:43 pm |

    As one whose passion is rights for the gender variant, what was perhaps even more disheartening than the NY Times piece was how analysis of this piece was taken up at the website Jezebel…where the issue posed by it was not legal rights, not even the discrimination and pressure faced by one who is gender variant in expression/identity, no it was “Could you stay with someone if they transitioned?” to which some said yes, others no, but what was scary was why people said no. Many people expressed a sexual desire that invovled in someway as desire limited to the same or opposite sex, which was understandable…what was not was the number of commentators that felt angry or upset because they felt their spouse would have lied to them and was deceptive about the nature of their gender identity. Even worse was one comment prefaced with “I have nothing against Trans people, I even have Trans friends…” and then went on to say that people who have the surgery are usually less happy afterwards and maybe something more is wrong with them than gender identity…Comments like those only reinforce negative stereotypes about gender variant individuals.

  8. irishgirl
    irishgirl April 28, 2008 at 11:22 pm |

    Wow that Jezebel post / comments is depressing.

  9. AnonymousCoward
    AnonymousCoward April 28, 2008 at 11:53 pm |

    I’m almost glad that Jezebel requires some sort of validation, because the sheer amount of stupid in that thread is mind-boggling for an ostensibly feminist website. It’s not just the commenters; the headline “Is Surviving A Sex Change The True Sign Of A Good Marriage? Or Just Insane?” is really fucking offensive.

    As for the discussion in this thread, I can’t really begrudge anyone for fighting for their rights, even if it’s politically inconvenient. Then again, I also think the constitutional arguments for marriage equality are incontrovertible, so I’m clearly not an unbiased observer.

  10. lindabeth
    lindabeth April 29, 2008 at 12:21 am |

    And it would be even better if the sex/gender/sexuality triad and marital status had nothing to do with civic identity and relationships of dependency! Unfortunately, equal marriage rights don’t equal equal civic rights.

  11. Zoe Brain
    Zoe Brain April 29, 2008 at 12:40 am |

    I’m in a similar situation to the Brunners. Not quite the same, I’m Intersexed rather than the standard Transsexual, and until 2005 when some Weird Stuff ™ happened to my metabolism, was believed to be somatically male, no matter what my gender identity.

    1985 diagnosis – mildly IS male. 2005 diagnosis – severely IS female. I started treatment immediately after that, based loosely on a standard TS transition model. It was an immense relief.

    Anyway, I was married in 1981 on the basis of being legally and medically male. I still can’t get my UK Birth certificate changed, as I’m not the standard TS, so fall into the cracks of the legislation.

    Australia, where I live, has very clear legislation on the issue. The validity of a marriage is dependant only on the situation when it was contracted. Despite my UK “boy” BC, I’m legally female now (in Australia), so should we divorce, I could only marry a man. But I was legally male at the time of my marriage, so it remains valid, and I have a letter from the Federal Attorney-General to that effect. Of course if I returned to the UK, I’d be legally male, so if divorced, could only marry another woman.

    The USA is not the only country in the world. Publicity of this kind of situation will happen, regardless of what is desirable or not. Personally, I think it highly desirable that the situation be clarified, because at the moment, no US marriage of any TS person is safe. All it takes is some “venue shopping” by some third party who can manufacture a cause – an insurance company, a bank, a relative who stands to lose in a probate case – and any existing marriage can be anulled. The same is true for most IS marriages.

    My main concern is that the “same sex marriage” advocates will gladly throw IS and TS people to the wolves, as was done with ENDA. By trading off TS/IS rights to marry anyone, they may just carry enough additional votes to gain swifter passage of their own legislation.

  12. Holly
    Holly April 29, 2008 at 1:51 am |

    My main concern is that the “same sex marriage” advocates will gladly throw IS and TS people to the wolves, as was done with ENDA. By trading off TS/IS rights to marry anyone, they may just carry enough additional votes to gain swifter passage of their own legislation.

    I guess it didn’t really come through in my post, but I actually can see how this would not only be necessary… but just. Even though it means that I might not be able to get married — this just puts me in the same boat as other queers.

    I should be frank about my position — I am not really in favor of civil recognition of anyone’s relationships. But given that we are stuck with that system, everybody ought to be able to take advantage of it. Some people can right now, others can’t. Since there is going to have to be a fight, in fits and starts, with backlash and waiting and gradual change accompanied by sudden upheavals, I don’t really feel like I can complain about some people losing part of that privilege in the process, and becoming part of the oppressed group of people who lack it. Ultimately, I do believe everyone will gain that privilege, and that’s the most important thing.

    Of course, at an individual level this is very cold comfort to people whose marriages are wrecked, and I would expect more of same-sex marriage advocates than simply talking about necessity and sacrifice. They ought to try to avoid scenarios in which some people will lose their marriage rights. But sadly, it’s not really going to be up to just them in the long run — the backlash is out of their control, unless you want same-sex marriage advocates to stop pressing that cause. And that would simply be a position defending the privilege of the privileged, including even those with tentative privilege. Of course some of the people with tentative privilege are going to be the most hesitant to challenge the privileged system, because they’re at risk of losing it. That doesn’t make it right, in the big picture… and it does make married trans folks who are willing to come forward as examples seem a little more brave, I think.

  13. Zoe Brain
    Zoe Brain April 29, 2008 at 3:33 am |

    My fear is that future legislation will allow both same-sex or opposite-sex marriages, but not if either includes TS or IS people. It’s a compromise.

    People with disorders of sexual development may not marry.

    I can see that being worth a few additional votes.

  14. Yosephina
    Yosephina April 29, 2008 at 1:57 pm |

    My fear is that future legislation will allow both same-sex or opposite-sex marriages, but not if either includes TS or IS people. It’s a compromise.

    This seems to me to be a pretty irrational fear. The whole reason that TS/IS marriages are on shaky legal ground is because of prohibition of same-sex marriage. Fix that, and the problems for TS/IS couples automatically go away. For instance, the reason why the marriage of a post-op trans female to a male won’t withstand a court challenge in Kansas is because the courts insist on categorizing people by their birth sex, which means they consider the woman to be male, which makes this a same-sex marriage and thus invalid.

    Trans folk (regardless of orientation or op-status) have as much to gain from legal recognition of same-sex marriages as gay people do.

    I still can’t get my UK Birth certificate changed, as I’m not the standard TS, so fall into the cracks of the legislation.

    You’ve posted before in great depth about your legal issues with your UK Birth certificate, and my understanding is that it doesn’t really matter whether you are “TS” or “IS” – you’d still be screwed by a bureaucratic catch-22.

  15. Holly
    Holly April 29, 2008 at 2:06 pm |

    I believe there’s actually a legal argument that has been used in same-sex marriage cases that it’s illegal or constitutional to forbid someone from marrying at all. In SSM cases judges have occasionally denied that argument by saying stuff along the lines of “well, a gay man can still choose to marry a woman if he wants, just like any other man already can” so that’s a loophole that could be used to say, you can’t rule out trans people’s marriage entirely, at least not at a procedural level. Unless this is constitutional somehow (and it might be, I dunno) then I suppose laws could be made explicitly forbidding trans people to get married — but that’s the kind of “why the hell did my legislator get worked up about that” brouhaha that most legislators would probably rather avoid.

    I mean, according to surveys most of the country believes that it’s already illegal to discriminate against all LGBT people, even where this is blatantly not the case, so I can’t see there being much support for writing people’s marriages out of existence on the grounds of self-expression or gender identity and certainly not “disorders of sexual development.” That language would not play well with the constituency, it sounds like bullying disabled people and we can’t have that — not openly, at least. :D There’s always more danger from the unanticipated trapdoor in the back than walking in the front entrance.

  16. Yosephina
    Yosephina April 29, 2008 at 2:09 pm |

    People with disorders of sexual development may not marry.

    Oh, also (in the USA at least), this would never pass 14th amendment equal protection scrutiny. The current bills, restricting marriage to “one man and one woman”, kind of slide past equal protection thanks to the flimsy pretext that everyone is equally entitled to marry someone of the opposite sex (even if some of us have no interest in doing that). But they can’t say some people can marry no one, or it’ll be slam dunk unconstitutional.

  17. Yosephina
    Yosephina April 29, 2008 at 2:13 pm |

    I believe there’s actually a legal argument that has been used in same-sex marriage cases that it’s illegal or constitutional to forbid someone from marrying at all.

    That’s the equal protection clause of the 14th amendment, explained here:

  18. Through Sickness, Health and Sex Change « TransLate

    […] Feministe on how this story is damaging The enGender blog on the complexities of this story my page on Marriage THERE are ways in which the Brunners are like many other middle-aged married couples. Former high school and college sweethearts, they finish each other’s sentences and order the same food at restaurants. They shuttle their three children to sports practices, and laugh when their 90-pound Labrador retriever jumps onto the sofa to lick guests. […]

  19. Holly
    Holly April 30, 2008 at 8:37 am |

    What happened with ENDA was not that trans people were explicitly barred from protection — we were left out, ENDA said nothing about trans people at all. Silent sins of omission are a lot easier to slip past than actively writing some group of people in as unworthy.

    However, that kind of thing did happen a couple decades back with the Americans with Disabilities Act (ADA) when Republican lawmakers insisted that the bill be modified to specifically exclude trans people — right alongside “pedophilia, exhibitionism, voyeurism” and other “sexual disorders,” (Not that I think trans people ought to necessarily be classed as disabled.) This kind of language specifically excluding trans folks is also found in a lot of insurance policies and state policies on medical care (e.g. Medicaid) etc. that date from the same era. But hopefully (maybe wishful thinking) it’s getting harder to put that kind of language in.

  20. Zoe Brain
    Zoe Brain May 1, 2008 at 11:52 pm |

    In fact, the ADA excludes those with “Gender Dysphoria” not due to a biological cause, and also “Gender Dysphoria” period. Two separate exclusions, one to cover a biological cause, and one to cover (hypothesised) psychiatric or “lifestyle choice” ones.

    The 14th amendment doesn’t seem to be worth much.

    In Ettsity vs Utah Public Transport, it was held that the plaintiff was neither protected as a male, nor a female, under Title VII. Effectively she was neither.

    A recent amendment to a bill that would have allowed TS people to correct their birth certificates in Kentucky created two new sexes, apart from F and M: FtoM and MtoF, with neither being considered male or female.

    As for “irrational fear”, maybe so. But I’m too used to irrationality. It took a 20 month legal fight for me to get a passport – I was originally issued a travel document good for leaving my country of citizenship, but not returning.

    I have dual Australian/UK nationality. Both countries forbid same-sex marriage. Because of that, in the UK, I could only marry another woman, in Australia I could only marry a man.

    In Illinois, whether you are male or female after surgery depends on who your surgeon was, and whether he was registered to practice in the USA at the time or not.

    In Kentucky, a woman who has given birth to several children is still considered male if she has 46xy chromosomes. And a man is considered male if he has 46xx chromosomes, even if he’s fathered children.

    Irrational Fear? Yes. But not illogical, it’s the situation, and the way we’re treated, that is barking mad. And our fears all too often fall short of reality.

  21. Riya Suising
    Riya Suising May 2, 2008 at 8:51 pm |

    If two people love and can keep a commitment together, that should be the strongest case of marriage, regardless of gender. Too bad there are too many different governments and laws to complicate the idea.

    If the definition of gender migrates to body parts or genes, should humans be required to wear visible signs or markings saying “has penis” or “has vagina” or “XX” or “XY” to clarify everyone’s gender? (sarcastically speaking) That may not improve everyone’s situation either.

  22. Xyre » Firefox tab dump
    Xyre » Firefox tab dump May 6, 2008 at 1:22 pm |

    […] The New York Times discovers (in the Fashion and Style section, naturally) that transgendered spouses face legal challenges in the United States. Feministe has some interesting and important reactions. […]

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