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.