I’m looking for some clarification regarding the legal status of people who change their genders.
Let us assume three hypothetical women, all postoperative male-to-female transsexuals.
Anna likes men. She wants to marry Adam.
Barbara likes women. She wants to marry Bonnie.
Catherine got married to her high school sweetheart, Cindy, back when she was still Chuck. Catherine and Cindy want to stay married even though Catherine’s a woman now.
Which does the law count- a person’s current or original gender? If gay people aren’t allowed to marry, but straight people are, what does the law say about people who change genders? How many of the imaginary ladies are going to get to be married? What are the legal precedents here?
IANAL etc. The answer depends on the state in which one resides when the legality of the marriage is questioned. AFAIK only two states have settled the question, Texas and Kansas. Each has a ruling from an appellate level that the physical sex one has at birth is determinative of the sex of the partner one may legally marry, and only a person born the other physical sex is an eligible marriage partner. No other state appellate court has to my knowledge ruled on the question.
Presumably, since same-sex marriage is legal in Massachusetts the birth sex of the partners is irrelevant since regardless of the combination it would be a legal marriage. Along the same lines I would assume that in Vermont the question would also be moot since if the marriage were judged void it would be assumed that the partners had entered into a civil union instead (assuming the marriage was contracted after civil unions became legal). But this is speculation on my part.
My understanding, and I can’t provide citations because I can’t swear to this, is that once you’ve “completely” transitioned - as in, you’ve had your special place rearranged surgically (as opposed to, for instance, the common case of a female-to-male transsexual who never bothers to get a semi-functional penis built) you’re legally that gender in the US, but maybe that only applies in certain states. So I believe Anna’s in the clear, Barbara’s not, and Catherine and Cindy’s marrital status doesn’t change. (I know I’ve read magazine articles and the like where one partner in a married couple transitions, and legal implications were never mentioned.)
As an editorial aside, these concerns are one of the practical issues associated with the illegality of same-sex marriage. Determining the sex of someone with ambiguous genitalia, or of a woman with XY genes (it happens due to androgen insensitivity syndrome), or many other conditions is difficult.
The Texas ruling Otto mentions basically held that an partner with XX chromosomes must marry an XY partner and vice versa, apparently leaving folks with unusual chromosome pairings like XXY, XXX and Y in legal limbo. The ruling led to some interesting and probably unintended results; a subsequent ruling held that a post-operative transgendered lesbian woman could not be prevented from marrying another woman. So in Texas Anna and Catherine are in marital bliss, but Barbara is unfortuantely out of luck.
Here in Tejas, that would be legally acceptable, yes, but not quite for the reason **Excalibre ** mentions. It’s because the two of them were born with XY and XX chromosomes and are legally still considered man and woman, even if they are actually woman and man.
I think you got the names wrong. Anna, born a man but now a woman, would not be legally able to marry Adam. Barbara, also a biological woman but legally a man, would however be able to marry Bonnie.
On a related note, I once read of a topless dancer who was able to practice her trade despite laws apparently prohibiting it. The laws only banned women from exposing their breasts and she was a post-operative transsexual who was still legally considered a man.
How utterly bizarre. Is that really the case? What about cases where the person’s physical sex and genetic sex are clearly contradictory, and they were born that way? Women can be the result of XY pairings combined with androgen insensitivity syndrome, and while they’re sterile, in many cases their genitalia (and gender identity) are very clearly female, even when the genes may say otherwise.
OTTOMH XXY is Klinefelters. I can’t remember what condition XXX is (other than the obvious jokes). But I’ve never heard of a condition which results in Y. IIRC while it’s possible for that genotype to occur, it would not be viable and would result in miscarriage. X, on the other hand, sometimes written XO is Turners.
The Texas case is Littleton v Prange. A doctor defending himself against a transsexual woman’s lawsuit for the wrongful death of her husband won an appellate court ruling that despite being post-op she was legally a man and therefore the marriage was invalid, reventing her from recovering damages as a spouse.
The Kansas case is In Re Gardiner (article, not the decision itself). It arose after the death of a transsexual woman’s husband. The man’s surviving offspring went after the estate claiming that the marriage was between two men and therefore invalid and the Kansas supreme court agreed.
In reading the Texas case I find reference to cases in three other states: Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y. Sup. Ct. 1971) in New York (trial court ruling that the marriage was void); M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976) in New Jersey (appellate court upholding a transsexual marriage); and In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (Ohio Probate Ct. 1987) in Ohio (declaratory judgment stating that it was up to the legislature to amend the marriage laws if the state wished to allow TS people to marry members of their current sex).
So unless there’s been a change to the law since the writing of the Texas case, it appears that New Jersey has legal TS marriages. Interestingly, New Jersey is thought by many to be on the verge of legalizing same-sex marriage through a case currently before the state supreme court.
I’ve come to the conclusion that a transsexual is, legally, whichever gender would be least favorable to him or her in whatever situation he or she is in. Basically, this means that any transsexual who seeks to marry should expect to have to sue to get the marriage license issued in the first place, and should expect that his or her marriage is at risk of being voided at any moment (including after his or her own death or the death of his or her spouse) and should take all available legal steps to protect his or her interests from the possibility of this happening.
What the law actually provides for varies from state to state, as others here have pointed out; in practice, even in states (like Texas) that treat a post-op as a member of their original sex, obtaining a marriage license for a legal “same-sex” wedding is likely to require either “clerk-shopping” or a lawsuit. Obtaining a marriage license for what appears to be an opposite-sex marriage is usually easy, but the marriage may disintegrate without warning down the road when a third party (often someone seeking to sue or someone being sued) discovers the “transsexual history” and tries to use it to to their advantage (e.g. Littleton or Gardiner). Hence my oft-repeated claim that a transsexual is whichever gender is most legally inconvenient at the moment.
I add that, prior to DOMA laws, at least, changing sex (quibble: it’s sex that one changes, not gender; gender is fixed before birth as far as we can tell) does not on its own terminate or void a marriage. Whether DOMA laws work to invalidate such marriages is a question of first impression, as far as I know. I know of many couples that have remained married through the reassignment of one partner, and of three couples that have remained married through the reassigment of both partners.
This is an area where, in general, the law is an ass.
Littleton v. Prange is, despite what Otto said, an in-depth legal examination of gender dysphoria and sexual reassignment therapies. In what I consider a highly Thomistic decision, however, it finds that one’s sex is fixed at conception or birth, and unchangeable – the internal “essence” of being male or female cannot be alterdd, in the view of the court, by one’s self-image of what one “really” is “inside” nor by medical therapies. It does, however, recognize that there are four criteria for recognizing gender identity:
Had it founded its location of legal sexual identity in the genes, as Otto suggests, it would at least, while working an injustice on Ms. Littleton, at least have set a precedent for justice to the XY-bearing phenotypical females with androgen insensitivity who seek to be corrected to be the males that they know themselves to be.
As it stands now, it appears that there is no way in which a transgendered person can legally correct him/herself to what he/she knows him/herself to “really” be in Texas – because that “reality” is founded in a Thomistic interior and unchangeable “essence” of being male or female which is unchangeable. (Only half in jest, I wonder what would be the court’s take on a medical course of sexual reassignment that also includes prayer by an ordained priest at the time of reassignment surgery purporting to transform that inner “essence.” Because I have never seen an “unchangeable inner nature” that is independent of the phenomenological criteria for determining that nature on examination outside discussions of the Real Presence in the Eucharist.)
Other details: FWIW, a hypothetical Y-only zygote would be unviable, not merely as not coming to term, but would never develop as a human embryo, because the X chromosome contains not only genes for femaleness and sex-linked characteristics but some genes necessary to life. Doc Cathode may have cause to regret this – by analogy with the representation of Turner as XO, the hypothetical Y-only makeup would be referenced as YO or OY!
One wonders what a truly intersexed individual with XXY chromosomal makeup and vestiges of genitalia of both sexes would be deemed to be by the Texas court.
And I am very tempted to make Xerox copies of Heinlein’s “All You Zombies” and send them to the judges in question!
Do you have a cite for this? I’ve never heard of an AIS case in which the patient identifies as male (In fact, from what I’ve read, many AIS women don’t know they differ from the standard model until they fail to undergo puberty and visit the doctor), or of one attempting to transition. Transitioning would be extremely difficult as testosterone would have no effect on a patient with AIS.
No, I do not – merely memories of anecdotal comments in other discussions of transgender issues. Given what you have said, it would be interesting to know if they were in fact founded in factual data or someone talking out his excretory orifice.
I have known PAIS individuals who, at some point in their lives, identified as male. I’ve never heard of a total AIS individual identifying as other than female, and I suspect that it’s all but impossible given what we do know about gender identity formation.
Polycarp, my recollection of Littleton is that it discusses the then-current scientific belief about gender identity, and then proceeds to throw all of it away and adopt a hard and fast rule about chromosomes, disregarding modern theories of gender identity formation. It’s almost as though the court wanted to say “This is what science says, and we don’t care.”
Here’s another thought: I can conceive of a state explicity having laws allowing male-female marriages, male-male marriages, and female-female marriages, but without having provisions for the marriage of persons of ambiguous sex/gender (whether by reason of chromosonal abnormality, hormone insensitivity, surgical reassignment, or other reasons). In such a case, the legality of homosexual marriages might not moot the point. While I realize that there are too few cases thus far of states with legal homosexual marriage to expect this to have actually come up, can any of our legally-inclined Dopers comment on the plausibility of this situation, or how it would be handled should it come up?
