How Marriage Inequality Affects Transgender Spouses

There are several things that bug me a lot about this NY Times article on a married couple that stayed together through one partner’s transition as a transwoman. There’s referring to the transwoman, Denise, by masculine pronouns and her birth name to reference past events where she did identify as female but had not yet had sexual reassignment surgery. There’s the very equation of surgery with transition — one is accepted as a woman only through virtue of a vaginoplasty, not only with regards to the law, but also in terms of how her gender is treated by the newspaper (and vice versa for a transman). Since not all transgender people choose to have surgery, and since not all people determine their very identity based off of their genitals, it’s insulting and obnoxious, and a big part of the problem that the paper is trying to examine. (Not to mention how the story is run, of course, in the Fashion and Style section.)

But with all of that being said, there’s some interesting material in there about the legal status of transgender individuals who are married.

The Brunners were already married when Donald became Denise. Transsexuals who marry after surgery pose a different set of questions, and there have been a number of custody, probate and other cases with decisions all over the legal map.

Urging the United States Supreme Court to tackle the issue in 2000, lawyers for Christie Lee Littleton, a Texas male-to-female transsexual suing her husband’s doctors for wrongful death, noted the confused landscape: “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

The Supreme Court declined to take the case.

The New Jersey reference stems from a 1976 case in which an appellate court ruled that a man needed to pay support to his ex-wife, who was born male, essentially saying that sex is determined by current status, not DNA. But a 2004 Florida case took the opposite tack: a female-to-male transsexual who married a woman and then divorced lost custody of the children, as the marriage was declared invalid since both were born the same sex.

In other words, these couples face huge legal hurdles from spousal rights over property and medical decisions to parental rights over the children they help raise. Overnight, they can go from being a legally married couple with full spousal rights to legal limbo. And overnight, two people can go from unable to become legally married to entirely free to fill out a marriage certificate.

Of course, this wouldn’t be an issue if there was marriage equality. While marriage equality certainly wouldn’t solve all transgender issues (or LGB ones for that matter), and wouldn’t solve the problem of ensuring that the government recognizes the correct gender identity of all people, it would help protect already-married couples like The Brunners just as much as it would help same-sex couples who want to become legally married and same-sex couples with civil unions that occupy a legal gray area.

I just so happen to be lobbying at in Albany tomorrow for Equality and Justice Day, and marriage equality is on the table, along with an expansion of anti-discrimination legislation to include gender identity. I’m excited to be going and optimistic that we have an LGBT-friendly new governor in NY. There will be some cool stuff going on, so hopefully I’ll have something interesting to report when I get back.


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24 Responses to How Marriage Inequality Affects Transgender Spouses

  1. irishgirl says:

    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! http://ilikecriticalthinking.blogspot.com/2008/04/another-lame-trans-article.html

  2. the opoponax says:

    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 says:

    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 says:

    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 says:

    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 says:

    @ 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 says:

    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 says:

    Wow that Jezebel post / comments is depressing.

  9. AnonymousCoward says:

    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 says:

    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 says:

    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 says:

    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 says:

    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 says:

    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 says:

    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 says:

    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 says:

    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:

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  19. Cara says:

    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.

    Considering what happened with ENDA, would hardly call the fear irrational. But I agree with you that it’s unlikely. It’d be a lot more politically difficult to pass legislation invalidating people’s marriages than the current legislation designed to prevent non-het marriages. And I can’t really see a legally sound way to legalize same-sex marriage without also giving the same rights to transgender people. Whether you’re a rational person and think that people have the right to determine and express their own identity or a bigot who thinks that transgender identity is false and some sort of disease, the fact remains that transgender people are going to legally and socially be recognized as one sex or the other. And marriage would be legal for couples of any gender combination.

    Sorry for being MIA, like I said in the post . . . lobby day.

  20. Holly says:

    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.

  21. Zoe Brain says:

    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.

  22. Riya Suising says:

    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.

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