A Constitutional Conundrum April 11, 2009

A Constitutional Conundrum

Richard Wade here.
(Not exactly atheist-related.)

All the news about same-sex marriage making headway in more states got me thinking. Maybe some of the legal eagles out there could answer this hypothetical question, or maybe someone knows of some actual related case, or anybody who has seen how fairness and law sometimes mesh and sometimes collide can share their thoughts. I think this may eventually happen if it hasn’t already:

Imagine a state that has overtly banned same-sex marriage, and has declared with a state constitutional amendment that marriage can only be between a man and a woman, as in (with my deep embarrassment) my beloved state of California. Now suppose that after that amendment, a man and a woman get married there, and some time after their marriage, by mutual agreement one of them gets a sex change. That person is now as much the same sex as their spouse as medical science can achieve. They want to remain married. Is their marriage still valid?

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  • Luther Weeks

    I can’t comment on the law, but the spouse could avoid the issue by also getting a sex change. I suspect for a healthy fee a Catholic could get an annulment.

  • 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.


  • Autumnal Harvest

    The answer is “it depends.” Of course, a good lawyer will give you that as the answer to any legal question, but it’s particularly true of this one. Courts decisions on transgender issues have varied widely from state to state. In fact, a number of states don’t allow you to legally change your gender. You can get all the operations you want, but they consider your gender fixed at birth. In those states, a male-to-female transexual could continue to be legally married to a female, or get divorced and marry another female, but not get divorced and marry a man.

  • 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.

  • Robert Thille

    What about male/female chimera?

  • Ron in Houston

    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.

  • I doubt that the conservative side of the debate, would respect the sex change enough to actually consider it a same sex marriage.

    I don’t really see an issue here unless someone politician is railing against the trans-gender community – I think were far enough along that such a move would look overtly hateful – OR, if a trans-gender couple living in a state where gay marriage is banned tries to make a point and pressed the issue.

    The latter seems a more likely way this might ever become an issue.

  • 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.

  • Sachi Wilson

    I am a lawyer and I am familiar with trans issues. The answer (as the posters said above) is it depends on the specific state’s laws and court decisions. Kansas refuses to acknowledge the legality of any marriage in which the original birth sex of the two parties is the same. Other than in Kansas, however, such marriages are probably (and in most states, almost surely) legal.

    A few states (Texas and Florida, I believe) refuse to grant amended birth certificates to trans persons who were born in those states, which can (again, depending on the state in which the marriage is consummated) prevent those persons from entering into a marriage with persons of their birth sex.

    On the other hand, it’s pretty easy for a transperson to enter into a “gay” marriage simply by declining to get his or her birth certificate changed. 🙂 The fundies in some states (Kansas again) have actually tried to ban ANY marriage by trans people to avoid this conuncrum. But that would never fly, fortunately.

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

  • Tom

    I must disagree with Ron In Houston above. In Texas they would no longer be married. The anti-gay-marriage-law says that the marriage can not be granted to a gay couple, but there was an actual case of this in Texas in which the state stepped in of its own accord and voided the marriage without the couple’s permission, they sued, and lost. Worse, the state is having its cake and eating it too: 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. This deprives the person of their civil right to marry.

  • Richard Wade

    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.

  • Helen

    btw, what happens with a legally married same-sex couple who moves to a state where same-sex marriage is not possible? I suppose marriage certificates have to be accepted mutually be the states?
    (A curious European.)

  • Miko

    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.)

  • Miko

    btw, what happens with a legally married same-sex couple who moves to a state where same-sex marriage is not possible? I suppose marriage certificates have to be accepted mutually be the states?

    That’s a tough issue. According to the Full-Faith and Credit clause of the U.S. Constitution, the answer is a clear “yes.” However, Congress has passed a law called the Defense of Marriage Act which (among other bad things) asserts that the Full Faith and Credit clause doesn’t apply to marriage licenses. However, this law is clearly unconstitutional and so should have no legally binding effect. However, it hasn’t yet been overturned by the courts. So, right now, de jure the other state should be required to accept the license (since the Constitution is the highest (written) law of the land), but de facto they won’t (since they’ll claim DOMA permits them not to do so).

  • Autumnal Harvest

    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.

  • Autumnal Harvest

    Whoops, Miko, I guess I should have hit refresh before posting, rather than just posting identical content.

  • Jen

    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.

  • Tom

    Helen, the US Constitution says states have to respect each others’ marriages, but a federal law was passed during the Clinton administration that says they don’t if it’s a gay marriage. That violates the constitution, so in theory any couple could simply sue and get it thrown out, but republicans have packed the Supreme Court with right wing nutjobs, so we’re hesitant to take a case to them until the makeup of the court changes. Unfortunately Supreme Court appointees are in place for life, so we’re waiting for someone to retire or die.

  • P

    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.

  • @P

    But as Autumnal Harvest points out above, marriage is a legal state, not something that you can go do on your own, extralegally. That is, you can’t be married unless the state says you’re married. So there’s no way to “break” the law, not even in the scenario proposed by the OP. What happens is the court just decides that you aren’t married, and proceeds with its custody or property (or whatever) ruling accordingly.

  • Nicole

    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.

  • Vincent

    Depends on the state and I can’t speak for all, but generally it’s the sex at the time of the granting of the license that matters. Anything after that is moot until divorce.

  • Eris

    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:


    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.

  • Demetrius Of Pharos

    I seem to remember this happening in Salt Lake (my hometown) a few years ago, but I cannot find a link. According to my memory, a male professor at the University of Utah was undergoing a sex-change, and he was married at the time. The article pointed out that the marriage would become invalid somehow but I do not remember the details.

    Perhaps someone else can find a related link.

  • Mike

    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.

  • Helen

    Thanks for your answers!

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