A Constitutional Conundrum

Unless someone challenges it, I don’t think there’s an issue. The law is kind of fuzzy there.

Not sure what this has to do with the constitutional amendment. It’s a situation that comes up any time a trans person marries.

but the spouse could avoid the issue by also getting a sex change.

What.

I don’t know about specific states, but I do know of two trans-women (Mila and Jayna of trans-ponder.com) who married during the window in which one of them had completed her her legal change of sex and the other had not yet. I don’t know all the particulars of their story, but I know they talk about it on what of their podcasts. You might want to look them up.

In Texas yes they’re still married. The laws in Texas against same sex marriage all apply to the granting of a license. If a man and a woman marry, they’re married until they divorce. A sex change wouldn’t affect the marriage.

It depends on state laws about gender identity, as much as it depends on laws about marriage. Back in the mid-’90s I met a lesbian couple, one member of whom was transgender, who were legally married in Washington State, which at the time (dunno about now), wouldn’t recognize transgender identity. As I recall, they had a bit of a “fine, won’t recognize my gender identity? Then you’re stuck with a lesbian marriage, aren’t you?” sense of “up yours” about how they talked about it. The scenario you propose isn’t hypothetical, and it dates back a lot farther than the anti-marriage amendments.

BTW, it’s not the sex reassignment surgery (SRS) that is the determiner of whether someone has transitioned or not. (Some jurisdictions have laws saying that it is; but then, some jurisdictions have laws saying that the sex determined for you at birth is your gender identity now-and-forever.)

I can see why you’re using SRS as the now-I’ve-got-you clincher in this hypothetical, but SRS isn’t the thing that makes one male or female.

I also not really see this exactly as a Constitutional problem per se, more of just a legal clusterfuck

Eddie and Abbie,
You’re right, it’s not a state Constitutional problem per se. I just liked the C-C alliteration in the title, and I’m still angry about Prop 8. With this new term I hadn’t heard before, I could have titled this “A Connubial Clusterfuck.”

Thanks, everyone, for your interesting answers.

In CA, it’s still a pending legal issue whether the 18,000 same-sex couples who married before Prop 8 was passed will have their marriages retroactively annulled. I’d suggest that the sex change issue would end up with the same result as that case, since in both the issue seems to be whether the law specifies the acceptable genders in existing marriages or in new marriages.

Of course, I’d also argue that the whole issue is moot since the right to marry whomever you wish is protected by the Ninth Amendment (as long as the other person agrees, of course) and that the states are obliged to follow this due to the Equal Protection Clause of the 14th Amendment. However, this last bit is based on our government actually following the Constitution, which, as any lawyer will tell you, is unlikely. (Current Supreme Court opinion seems to follow Bork’s view that the Ninth Amendment is actually an “inkblot” on the document to be ignored.)

Helen, that’s a good question. It’s still a point of dispute, but my feeling is that most courts would say that same-sex marriage certificates don’t have to be accepted mutually by the states. There’s a federal law that says that they don’t (Defense of Marriage Act), which hasn’t, at least at this point, been ruled unconstitutional. Your assumption is arguably supported by something in the U.S. constitution called the Full Faith and Credit clause, but I don’t think the courts are going to interpret it that way. (I’m stating my likely guess as to court rulings, not my preference.:( )

Most people whose marriage’s legal validity is debatable don’t have definitive rulings about whether their marriage is valid. (Cases like the one Tom describes, where the state steps in to formally invalidate a marriage, are rare.) Rather, they have to deal with contingency plans for different possible rulings, which might differ not just from state to state, but from agency to agency. Typically, a ruling is made not because the state comes in and says that you’re not married—after all, you can sit at home and claim that you’re married to a coconut, and have a cherished certificate from the foreign state of Crazyvania agreeing, and your state isn’t going to care. The validity of the marriage can be unsettled for many years, and then the issue only comes up during something like custody hearings, insurance coverage issues, etc. . .—i.e. other legal or governmental decisions that depend on whether you’re married.

I have a friend that is dating a trans guy (FtM, for the record) and we were recently chatting about how in Illinois, you cannot get your driver’s license changed unless you get sex reassignment surgery in the US. Naturally, this complicates things, because 1. Its cheaper in other countries 2. Not everyone even wants to get surgery 3. Not everyone can find a doctor who can perform it 4. The surgery is not particularly easy for FtMs. Her boyfriend doesn’t want to get it for that reason (he is still going with hormones and more minor surgeries) and they won’t be getting married legally any time soon.

I mention this all only because I think that “get a sex change” is a bit of a misnomer, at least here in America. As cisgendered people, we need to recognize that it is a long and difficult process.

Also, about five years ago I saw a 20/20 special that talked about married couples where the man of the couple transitioned. These couples stayed together, but I would bet the rate of divorce afterwards usually skyrockets. They interviewed some women who did get divorces after the fact, IIRC.

It may be a matter of semantics. If the law says two people of the same sex can’t GET married (of course put in much direr jargon) then I would say the hypothetical couple is fine, since both were different sexes during the ceremony. If the law says two people of the same sex can’t BE married, then in that case I’d say they’d be breaking the law.

I haven’t read all the responses here, so please forgive me if I repeat something already said.

As a member of the transgender community, I can tell you that this discussion comes up all the time.

The legal answer to this really depends on the state you are in, and in some cases what county or city you live in. Someone up above mentioned Texas, and there are places in Texas that the marriage would be recognized and other places that it would not. A few years back, there was a case in Texas of a trans-woman who was denied inheritance rights to her husbands property becase the court ruled that she was a man and their marriage was not legal.

So the answer is that there is it depends.

Tom says: “In Texas they would no longer be married.” and “it claims a man who has a sex change and becomes a woman can not remain married to a woman because she is now a woman, but also that she can not marry a man because she isn’t really a woman”

Neither of these statements is true.

First we need to know what the Texas Constitution actually says. http://www.statutes.legis.state.tx.us/SOTWDocs/CN/htm/CN.1.htm#1.32

Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

(Insultingly, this is in Article 1 of the Texas Constitution, the “Bill of Rights”.)

Notice that it does not define what the terms “man” and “woman” mean. These terms are taken as simply understood, but transsexualism challenges the common understanding in ways that the courts have yet to fully deal with.

For the record, I am a post-op male-to-female transsexual, living in Houston, Texas, and I am in a legal Texas marriage to another woman. Although we live just outside Houston, our marriage license was issued in San Antonio, in Bexar County, because that county will issue marriage licenses to same sex couples as long as one of them is a transsexual. Why? Because of the case Littleton v. Prange which you can read about on http://christielee.net

In that case, the Texas 4th Court of Appeals (which covers Bexar County and other parts of central Texas) ruled that Christie Lee Littleton was not entitled to sue a hospital for malpractice over the death of her husband because her marriage was not valid, since Ms. Littleton is a MTF transsexual, and is thus (in the opinion of the court) male. Accordingly a MTF transsexual in Texas cannot marry a man in the counties covered by the 4th Court of Appeals. However, within that jurisdiction, a MTF transsexual _can_ marry a woman, since under the Littleton ruling, such a marriage would be legally regarded as a traditional mixed-sex marriage.

In the counties covered by other appeals courts, the Littleton ruling does not necessarily hold sway. So in actual fact, a Texas transsexual can marry either a man or a woman simply by choosing which county to issue the marriage license! In Harris County where I live, I can marry a man, but being a lesbian, I went to Bexar County to get the license.

Here’s a scan or the license with the official seal after it was registered:

http://eldalin.com/marriage-license.jpg

My wife Wendy and I are not the only same-sex couple to have gotten married this way. Jessica Wicks, who I knew before she moved up north, and her wife were the first couple to marry after the Littleton ruling (http://christielee.net/press5.htm), and I remember reading on a TS maliing list about a third couple. There may be more that I’m not aware of.

Now, whether or not our marriages would actually hold up under legal scrutiny is another matter, since neither the Texas nor the US Supreme Courts have ever ruled on this. Right now in Texas, there is simply no statewide standard. My wife and I could very well be told by Harris County courts that we are not married, while the Bexar Country courts would say we are. If ever there is actually a court outside the 4th Appeals circuit that rules against us, then the conflicting rulings in different circuits might prompt the Supreme Court to grant a review to resolve the conflict. Until then, we just have to hope for the best.

But for now, at least, we are married and we get to thumb our noses at the fundies and other hate-mongers. Neener, neener.

I recently saw a guy who tattoo’d his face to look like a cat, had inserts inplanted into his face and even had whiskers put into his cheeks. New flash… he is not a cat. He is not even “partly” cat. He is a guy who mutilated his body for some percieved self fulfillment. The same goes for any man who mutilates his body in any other way. It would not make him a woman.
I fail to see how any rational person would make this same arguement. No where does science support the notion.