Subject: [iyf] IYF-Same-Sex Marriage?
Date: Tue, 25 Jan 2000 08:32:21 -0500
From: owner-iyf-online@gpac.org

MEDIA ADVISORY - FOR IMMEDIATE RELEASE

Editor: Clare Howell, clare@gpac.org

SAME SEX MARRIAGE? TRANSGENDER PEOPLE AND
MARRIAGE
=========================================

[New York, NY: 25 Jan 00] IN NOVEMBER, THE
Texas Fourth Court of Appeals ruled that a
post-operative transexual woman, Christie
Littleton, is legally male and therefore
lacked standing to bring legal action as a
widow. And since Texas law forbids marriage
between two men, she could not have married
Jonathan Littleton; hence, their 7-year
marriage was retroactively nullified.

	This fall a transexual woman and her
female partner flew to England, which takes
a position similar to the Texas court, and
were married. Although legally man and wife,
they are, to all appearances, lesbians.

	With state legislatures and the US
Congress making laws restricting marriage to
heterosexual couples, little attention has
been given to how transgender people affect
the issue. And, to further spice the mix, many
transgender people identify as gay and lesbian.

	To help clarify the issue, we talked to
Dana Priesing, a Washington D.C. attorney who
works with GenderPAC.

IYF: What's the immediate consequence, if any,
of the Littleton decision for transexuals?

DP: It affects post-operative transexuals with
un-amended birth certificates who seek to marry
persons of the same anatomical sex. If you are
in that situation, and you want to marry your
same-sex partner, you might consider doing so
in a jurisdiction that does not recognize
reassignment as changing a person's legal sex.
Great Britain appears to be one such
jurisdiction. At least one Texas state
appellate court has taken a similar view.

IYF: If a post-operative transexual woman marries
a non-transexual woman in a jurisdiction that
does not accord legal significance to sex
reassignment surgery, is their marriage valid?

DP: Generally speaking, yes, at least in that
jurisdiction. Such a jurisdiction apparently
would consider assigned birth sex irrevocable,
and would consider the transexual woman still
legally a man. Consequently, in that jurisdiction,
their marriage wouldn't be a same-sex marriage,
but a heterosexual marriage.

	Now, it is questionable whether their
marriage would be recognized in another
jurisdiction that considered the transexual woman
legally a woman. In such a jurisdiction, their
marriage would constitute a same-sex marriage,
and likely would be unlawful unless the
jurisdiction allowed same-sex marriages.

IYF: You're saying that a person who is, to all
outward appearances, a woman could be legally male
in one jurisdiction and legally female in another?
Isn't there a single accepted standard for legally
'sexing' people?

DP: Not when the issue is legally sexing them at
some point in life after their initial birth
assignment. Typically an infant is visually
inspected, with follow-up testing--and sometimes
surgical sex assignment--for infants with atypical
sexual anatomy.

	There is some diversity in the standards
that have been applied in assessing if and when the
law should acknowledge at some later date that the
initial assignment is no longer accurate.

	For example, in the 1976 case of MT v. JT,
the Appellate Division of the Superior Court of
New Jersey considered psychological and physical
factors, including the irrevocability of the medical
steps taken and capability to have intercourse as a
member of the reassigned sex, in holding that a
male-to-female transexual should be considered
legally female.

	In contrast, the Texas Fourth Court of Appeals
in the Littleton case refused to accept the possibility
that one's initial sex assignment could be superseded
by later events. Apparently Great Britain's position
is similar.

IYF: What about the converse situation: a 
married heterosexual couple, one of whom undergoes 
gender reassignment. Is their marriage still valid?

DP: The answer depends upon the legal post-birth
sexing standards of the jurisdiction where they
reside, and perhaps of the jurisdiction where they
were married, and/or the jurisdiction where the
transexual spouse was born--as well as 'choice-of-
law' provisions that might be applied by whichever
jurisdiction found itself addressing the issue.

	In short, we won't know until it happens.

IYF: How does this issue affect the debate over
same-sex marriage?

DP: It demonstrates that same-sex marriage is in
many ways already a fait accompli. Consider the
couple who were married in Great Britain. Although
they were considered legally man and wife when they
married, day in and day out they live as and are
taken to be two women.

	It would be very difficult for the average
person they encounter in the grocery store to see
evidence to the contrary. (That would require a
thorough pelvic examination and a chromosomal smear.)

	So, if they or others like them are willing
to be public about the fact that they were legally
married, the fact that they don't appear to be man
and wife, but lesbians, would encourage those they
meet to re-examine their preconceptions about same-
sex marriage and its consequences.

		###

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