Will the proposed amendment to Arizona’s Constitution to ban same-sex marriage change the treatment of existing marriages in which one partner transitions?

Recently, on one of the Arizona trans-related Yahoo groups that I belong to, one member stated her belief that the proposed constitutional amendment to ban same-sex marriages in Arizona, known as Prop 102, would change the law so that “[e]xisting marriages involving a transsexual could easily be nullified.” (The proposed amendment states, “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”) Here is my response:

I disagree. Prop 102 will have no more, and no less, effect on marriages in which one partner transitions after marriage than the existing statute.

That statute (ARS 25-101(C)) states, “Marriage between persons of the same sex is void and prohibited.” There is no material difference, from a legal standpoint, between a statute, or constitutional amendment, one of which says same-sex marriages are void and the other of which says that only marriages between a man and a woman are valid. Both have the same potential to invalidate existing marriages in which one partner legally changes her or his sex, if the courts choose to recognize that change for purposes of marriage, thus rendering the marriage an illegal same-sex marriage. (Note that, this is not the approach the courts in Kansas and Texas took. Those courts refused to recognize a legal change of sex for purposes of marriage. Under those rulings, a marriage in which one partner legally changes sex after marriage would continue to be valid. As noted below, however, I know of no cases in which that holding has been extended to pre-existing marriages, rather than marriages in which the partner transitions prior to marriage as were involved in those cases.)

In either case, any attempt to declare an existing marriage that was legal at the time it was first entered into, void because one partner transitions would face significant problems under the due process and equal protection clauses of the federal constitution, which always trump state law. There is a long line of cases saying that, as long as a marriage was legal when and where it was entered into, then it remains valid until and unless the partners legally divorce. That’s why people did, and still do, go to Las Vegas to get married instantly and can go back to their home states and have their marriages treated as valid, even though their home state would have imposed additional requirements, such as a waiting period or a blood test. It’s also why first cousins from Arizona can travel to a state where such marriages are legal, get married, and return to Arizona and have their marriage recognized as valid, even though Arizona law says that marriages between first cousins are “void and prohibited” (ARS 25-101(A)), which is the same language used in the ban on same-sex marriages.

The validity of existing marriages in which one partner transitions after marriage hasn’t been resolved anywhere in the U.S., at least, as far as I know, but there is no reason to think that such marriages are any more, or any less, at risk under Prop 102 than they are under existing Arizona law. Nonetheless, I think that anyone in such a marriage needs to be aware of the risk that their marriage might be challenged at some point, and take precautions, e.g., mutual wills and medical directives, to ensure that, if that happens, they will not lose all of the rights and benefits they expected to receive from being married.

Cross-posted from my personal blog.

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8 Responses

  1. I know the New York Times article that I linked to back in April mentions Texas, Kentucky, Ohio, Connecticut, Vermont and New Jersey as different examples of how a marriage is treated legally where one partner has transitioned. It seems to me that it would be worthwhile for someone to do some legal research and make up a table clarifying the positions for same sex/opposite sex marriages where one partner has transitioned before/after the marriage for all U.S. States/countries of the world.

    Hm. That would be a series of tables, wouldn’t it. 😉 A cursory Google didn’t bring up anything existing for me. Anyone else stumbled across something like this?

  2. Liz, the best chart I know of on LGBT rights in the U.S. is EqualityGiving’s State of Equality Scorecard, which includes same sex marriage. It does not, however, deal with the question of the validity of marriages by transsexuals, whether they transition before or after marriage. Lambda Legal, NCLR and NCTE may have charts or other information specific to transsexuals.

    Of the states you listed, only Texas and, I believe, Ohio, have addressed the validity of marriages involving transsexuals. In both cases, however, the dispute involved trans women who had full transitioned, had SRS and obtained new or amended birth certificates showing them as female before they married (in the Texas case) or attempted to marry (in the Ohio case). Both cases, as well as the similar decision in Kansas, essentially said, “once a man, always a man,” regardless of what you might have done since birth. Under those decisions, an opposite-sex marriage in which one partner transitions after marriage theoretically would continue to be valid. As I said, however, as far as I know, there has never been a decision in the U.S. specifically holding that such marriages are still valid. It would seem logical that, if you’re considered to be male (or female) despite surgery, transitioning and changing your birth certificate, then it should be legal to marry a cissexual female (or male). There are some, however, who essentially argue that transsexuals are both sexes and, therefore, can’t legally marry anyone. Some foreign countries, like the U.K., have addressed the risk that permitting transsexuals to legally change their sex will result in illegal same-sex marriage by prohibiting married people from changing their sex for legal purposes, unless they first get divorced. I have one post-op trans woman friend in England who remains legally male because she and her wife want to stay married.

    I don’t know of any decision in Kentucky regarding the validity of marriages involving transsexuals, whether they transition before or after marriage.

    In New Jersey, a court held in 1976 that the marriage between a cissexual male and a trans woman who had legally changed her sex before marriage was valid. There is no case there, however, saying that a marriage in which one of the partners transitions after marriage is still valid. That question is unlikely to arise, since New Jersey allows civil unions that are supposed to have all of the same rights and responsibilities as marriages. (New Jersey is currently studying whether the two are truly equal, as the legislature intended. If not, they are likely to change their laws to permit same-sex marriage, as is now the law in Massachusetts and California. Once same-sex marriage is legal, this issue, of course, goes away.)
    Like New Jersey, Connecticut and Vermont allow same-sex civil unions. I know of no decisions in either state regarding the validity of marriages involving transsexuals, whether they transition before or after marriage. Thus, the quotation in the NY Times article that you linked to stating that Christine Littleton could legally “marry” a man in Connecticut or Vermont is inaccurate. While she could enter into a civil union with a man in those states, there is no reason to believe she could actually marry a man there.

    The whole picture gets even more complicated if you consider the fact that three states (Ohio, Tennessee and Idaho, where I was born) do not permit the change of a person’s sex on their birth certificate, whether they have had SRS or not. The State of Arizona, however, has already recognized me as female on my driver’s license. Would that designation control if I wanted to get married here? Nobody knows. Of course, I could probably walk into a courthouse, except the one here in Prescott where they all know me, show my driver’s license and obtain a license to marry a cissexual man. That’s no guarantee, however, that the marriage is actually valid. A cissexual man and a trans woman, who still had an “M” on her driver’s license, or another man (the news reports are unclear regarding whether the second partner was gay or trans) recently managed to do just that and barely escaped prosecution for providing false information on their marriage license application.

    Then, consider the fact that, even though I can’t change my birth certificate after SRS, I can change my sex to female on both my passport and my Social Security records with proof of surgery. If I attempt to marry a man here, or anywhere else where same sex marriage is illegal, will the courts look to those documents, rather than my birth certificate, to determine if my marriage is valid? Again, nobody knows.

    The bottom line is that the marriage rights of transsexuals are a mess, contrary to the beliefs of some gays and lesbians, who occasionally express resentment at the (mistaken) notion that we can marry persons of the same birth sex with impunity. The only fair, as well as the simplest, solution to these problems for both trans and non-trans people is to allow same-sex marriages, not civil unions, without restriction based on sex or gender. Until that happens, or there’s a hell of a lot of successful litigation in many, many states, trans people will continue to have good reason to worry about the validity of their marriages, whether they transition before or after exchanging vows with the partner of their choice.

  3. […] 24, 2008 by Abby For those of you who didn’t see it there, this is my response to a comment over on TranscendGender to my post, also posted here, on the […]

  4. Your analysis looks correct to me, Abby. Same-sex marriage is already prohibited in Arizona, so the actual fate of marriages where someone would transition is not going to be affected by the bigoted Prop 102.

    Naturally, Prop 102 should be fought by every sensible and moral person, but not because of the effect on trans marriages.

  5. I found this interesting paper while searching for something quite different today:

    When is a Same-Sex Marriage Legal? Full Faith and Credit and Sex Determination

    When the conversation turns to same-sex marriage, the array of opinions on the complex constitutional, state, and federal issues implicated in the same-sex marriage debate are numerous and diverse. One of the major recurring debates is the constitutionality of banning same-sex marriages or refusing to recognize a same-sex marriage performed in a sister state. Before we can conclude whether same-sex marriages must be recognized in a sister state under the full faith and credit clause, or whether the Defense of Marriage Act (DOMA) is constitutional and protects sister states from having to recognize such out-of-state same-sex marriages, we must first establish what constitutes a same-sex marriage. To determine whether a marriage is an opposite sex heterosexual relationship or a same-sex homosexual union, we must first decide how to define the terms “man” and “woman.”

    Because states rely on different factors to determine legal sex, a marriage involving a transgendered spouse could be considered an illegal homosexual union in some states and a legal heterosexual marriage in other states. This article analyzes these contradictory approaches to sex determination and their implications for the same-sex marriage debate. The article starts by describing transgendered conditions and sets the stage for understanding the legal factors that a state could use to determine sex for purposes of marriage. It then provides a description of the recent cases involving transgendered marriages and exposes the conundrum that will develop as different states apply different rules to determine sex. It continues with an analysis of the full faith and credit implications of a state sanctioned amendment to the sex designated on a transsexual’s birth certificate. Finally, it concludes that the current patchwork quilt approach to determining a person’s legal sex, and consequently the validity of her marriage, raises full faith and credit issues that courts must fully address.

  6. Well, if same sex marriages were legal, like they should be, we wouldn’t need to worry about the issue of marriage after transition. In my opinion the law takes years to catch up with things, and eventually marriages where one partner has transitioned are likely to be overturned, unless same sex marriage has become legal before then. I also think persons who have been granted a gender change without proof of full SRS are likely to face a reversal of their gender status at some time in the future. These issues are all quite new in society and the law takes time to catch up, but the law is usually conservative when it does.

    Another related issue is the idea that all legal acts after transition will become invalid, such as your mortgage or your tax returns. It’s a dominoe effect of disaster, LOL

    If we were to do away with all legal differences between married and non-married people, and just treat everyone as an individual, then it wouldn’t matter.

    I feel that a marriage is a spiritual thing, and no real legal status change needs to be associated with it anyway. A will can cover inheritance quite easily. In my religion we allow same sex and poly marriages and I wish the gov would get out of the picture and let us do what we want to.

    If you’re in Tucson, I will perform a spiritual union right now for those that wish it…. regardless of gender.

    Many Blessings, Jean

  7. Priestess Jean,

    Obviously, for all the reasons laid out above, I disagree with your opinion that legal heterosexual marriages where one partner transitions after marriage are at risk of being invalidated. The law is conservative, which, in this case, means that courts will apply the same principles to such marriages that they do to other marriages whose validity is questioned. The most basic of those principles is that a marriage that is valid when and where it was entered into, remains valid until and unless the parties divorce.

    Also, for a number of reasons, there is no reason to be concerned that “all legal acts after transition will become invalid.” First, a person’s sex or gender is legally irrelevant to almost all transactions. In other words, it doesn’t matter what sex you are to open a bank account or to write a check to the IRS to pay your taxes or to the bank to pay your mortgage. The fact that one is transgender and has transitioned (or not) does not create some new legal disability such that the person becomes unable to enter into valid contracts, like a minor or a person who has been declared mentally incompetent.

    Second, the “contract clause” of the U.S. Constitution bars the state and federal governments, including courts, from doing anything that would interfere with the enforceability of any contract that was valid at the time it was entered into. Thus, a state can’t suddenly declare that a contract you entered into with the bank to obtain a mortgage, or any other legal obligation or right you obtained before transition, is now invalid because you transitioned.

    I don’t think it’s helpful to create uncertainty about our legal rights where there is no reason to be concerned. After all, we have enough to worry about as it is.

    Abby

  8. […] one or more transgender partner continues.  I’ve previously posted about those issues here and here.  This is my most recent addition to that discussion: I agree with the basics of your […]

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