PHOTO: The marriage between Ani Haines (left) and Theresa Mitchell is a legal gray area since Mitchell's transition. From Julie Sabatier, "Transgender Couples Find Loophole, Some same-sex couples are pushing the boundaries of marriage law," Just Out, March 21, 2008, p. 19 and Julie Sabatier, "Legal Loophole Allows Some Same-Sex Marriages," OPB News, Jan. 2, 2008 12:58PM - audio version (MP3).
(See previous posts Just Out Letter Trans definitions (3/2/07) and Oregon domestic partnerships are not marriage (12/27/07))
Because of a legal loophole, a small number of same-sex couples have been able to marry under state and federal law for some time. . .
Theresa Mitchell and Ani Haines got married six years ago.That was when Theresa still went by "Steve" and was biologically male. . .
In 2004, Oregonians passed Measure 36, a constitutional provision that legally defines marriage as a union of one man and one woman. But there is currently no Oregon case law that addresses a marriage like Haines and Mitchell's, and it's unclear just how legal their marriage actually is.
Mark Johnson practices family law in Portland. He says couples like Ani Haines and Theresa Mitchell are in a kind of legal limbo.
Mark Johnson: "For a transgender couple that got married when they were of opposite sex and then one of them transitioned and now presenting themselves as Oregon residents and asking to have that marriage recognized, I think that's very problematic after Measure 36."
Johnson says it's possible that Haines and Mitchell's marriage could be invalidated if it were challenged in court over issues of inheritance, adoption or other benefits. But a judge could also decide in their favor. . .
Alec Esquivel. He began his female to male transition in 2001. . .
At 32, Esquivel legally changed his gender, a process that's a lot like a legal name change. He changed his birth certificate to reflect his gender as male. It took a court order and a letter from the surgeon who performed his double mastectomy. Three years after this legal and physical change, Esquivel married Michele Pearce, a female from birth.
Alec Esquivel is a student at Willamette University College of Law. He's done some research on marriage laws.
Alec Esquivel: "They're a mess...I can legally change my gender in Oregon. I can legally marry in Oregon,but I don't think that Michele and I could move to Texas. Texas law would recognize my gender as the gender that I was born with, which would be female. So in Oregon, it works, but in Texas it wouldn't work. In Texas, I could only marry another male, which is then complicated because the public would then see a same-sex marriage." . . .
(Quoted from Julie Sabatier, "Legal Loophole Allows Some Same-Sex Marriages," OPB News, Jan. 2, 2008 12:58PM - audio version (MP3))
Transgender Law and Policy Institute maintained by Paisley Currah, Board member and Founder of the Transgender Law and Policy Institute and Associate Professor of Political Science, Brooklyn College of the City Unviersity of New York, has a Web page Litigation: Case Law - Marriage, Sex Designation and Name Change Cases that lists some of the case law.
In Re Estate of Marshall C. Gardiner (2002). Kansas State Supreme Court declared marriage of transsexual woman J'Noel Gardiner invalid.
Littleton v. Prange (1999) - Texas appellate court negates 7-year marriage of Christie Lee Littleton because she was born male-bodied.
Arthur S. Leonard, "Trans Ex-Wife Keeps Alimony," Gay City News, April 5, 2007 says, "St. Arnold cited the only relevant Florida appellate ruling, Kantaras v. Kantaras, a 2004 decision in which an appellate court held that a marriage between a woman and a post-operative female-to-male transsexual was void because Florida law still considered Michael Kantaras to be a woman post-reassignment surgery." (See also Arthur S. Leonard, "Post-Op, Marriage Voided," Gay City News, July 29, 2004)
Katherine M. Franke, Professor of Law, Columbia University in the paper Katherine M. Franke, "Legal Aspects of Gender Assignment," Working Papers, 2002 (PDF) cited the eight-point gender test in John Money, "Sex Errors of the Body and Related Syndromes: A Guide to Counseling Children, Adolescents and Their Families,"p/ 82-83, 2d ed. 1994.
Eight criteria deployed by medical professionals to determine sex or gender:
- chromosomal sex (e.g. sex chromosome test XX female or XY male or XXY intersex, etc.)
- gonadal sex (e.g. ovary or testis)
- internal morphologic sex (e.g. internal form or structure)
- external morphologic sex (e.g. breasts and external genitalia)
- hormonal sex (e.g. estrongenic hormones vs. androgenic hormones)
- phenotypic sex (e.g. phenotype is the entire physical, biochemical and physiological makeup of an individual as determined both genetically and environmentally, as opposed to genotype, which is the entire genetic constitution of an individual)
- assigned sex (e.g. male or female as declared on the birth certificate)
- sexual identity or role (e.g. self identity or gender expression)
Notice that a century ago, doctors could only observe the external genitalia to determine the assigned sex. Hormonal and genetic tests were not available until the middle part of the 20th century. Each new medical test for physical sex has found humans who are neither all male nor all female on every physical test.
Courts either have to decide that gender is determined at birth and remains fixed throughout live, or that gender is determined by a doctor at the time of marriage. Either legal determination would permit same-sex marriages as mentioned above.
I believe this loophole will result in the striking down of same-sex marriage laws in the future, provided a future U.S. President is able to re-stuff the U.S. Supreme Court with liberal judges.
