Is same-sex marriage legal for transsexuals?

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March 2 2004 7:03 PM

Same-Sex Marriage for Transsexuals?

Why it's legal in Texas, but not California.

Illustration by Robert Neubecker

With transsexuals earning the right to compete in professional sporting events and with same-sex marriages being performed in San Francisco, where do marriage rights stand for transsexuals? Can people who've undergone sex reassignment surgery legally marry someone of the same sex?

Paradoxically, it's the more conservative states that tend to allow such same-sex unions. Courts in Texas and Kansas, for example, have ruled that no operation can alter a person's sex in the eyes of the law. In the 1999 Texas decision, a state appeals court invalidated the marriage between a deceased man and his male-to-female transsexual widow, after the widow tried to sue her husband's employer for wrongful death. Gender, the court concluded, is "fixed by our Creator at birth."

The unintended consequence of that decision, however, is that a transsexual could marry someone of the same gender in Texas. After all, if a male-to-female transsexual is legally a male in the state, regardless of her surgery and appearance, then she is free to marry another female. In fact, at least two couples have taken advantage of this Texan loophole since the ruling. A 2002 Kansas decision, In re Gardiner, created this same loophole, although it's unclear whether any couples have made use of it yet.

On the flip side is California, whose judiciary has tended to favor transgendered rights. In 1997, a California judge refused to invalidate the marriage of a female-to-male transsexual and his wife. The case came about as a result of a divorce proceeding; the woman wanted an annulment so she could deny her husband custody of their daughter (who was conceived using a brother-in-law's sperm). The Superior Court judge concluded, "California recognizes the post-operative gender of all transsexual persons," and the man, Joshua Vecchione, eventually received joint custody of the couple's daughter.

The rub is that the decision probably means that same-sex couples in which one party is a post-operative transsexual can't legally marry in California—except, at least for the moment, in San Francisco. California has a Defense of Marriage Act on the books, defining marriage as between a man and a woman. So a female-to-male transsexual probably cannot legally marry another man in the state. (All of this is contingent, of course, on how the fracas in San Francisco plays out.)

Just last year, Florida also tilted in California's direction, when a state judge awarded child custody to a female-to-male transsexual. Transgendered rights advocates hailed the ruling, which relied on extensive medical testimony to prove that sex reassignment surgery had, indeed, transformed Michael Kantaras (born Margo Kantaras) into a male. At the same time, the opinion noted that Florida law "clearly provides that marriage shall take place between one man and one woman."

All of these cases have involved transsexuals who underwent their surgeries before getting married. But what if one member of a heterosexual couple decides to have sex reassignment surgery after the marriage, thus creating a homosexual couple? It would be very difficult for a state to invalidate such a union. A general rule of thumb is that a marriage can be declared null and void only if one of the parties pushes for dissolution or dies.

Bonus Explainer: The laws vary widely from state to state on whether a transgendered person's new sex is legally recognized. Here's a good primer on the process for applying for new documents—especially those all-important birth certificates.

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