Laws such as those banning same-sex marriage (see Marriage Equality) affect transgendered people in many ways. In transitioning from one sex to another, at some point it is possible to enter into a same-sex relationship, whether it occurs before or after sex reassignment surgery (SRS). At the same time, trans people may also be allowed the privilege of heterosexual marriage, though this is not without complications, due to variations in gender. For post-op transsexuals, heterosexual marriages may occur after one partner has transitioned to the opposite sex, while some enter into heterosexual marriage prior to changing sexes. However, the legality of either of these marriages may still be disputed in court.

Some transgender folks transition from being a heterosexual man or woman and then find themselves in a queer relationship, assuming the transition occurs during an already existing marriage. If not in a marriage, there is little hope of legally entering one. In the case that a marriage exists, you have a heterosexual couple with one partner transitioning, therefore making the legally married couple a same-sex relationship. Unfortunately, many relationships do not survive this transition. For those that do, the marriage could possibly be invalidated because of anti-same-sex marriage legislation. In the case that a marriage is disputed, based on it being a same-sex marriage, legal disputes often lead to long court battles. This classification as a same-sex marriage can be issued because either the new legal sex or the birth sex makes it so, creating a no win situation for transfolks. Marriage can be disputed whether the couple is straight or not.

In 1980, the medical community began to adopt standards of care concerning the treatment of transsexual patients. "Such standards were promulgated in response to the growing demand for sex reassignment surgery and the concomitantly growing threat of liability to health care providers for negative surgical outcomes and inadequate psychological support for the patient in preparation for surgery. Prior to the adoption of the standards of care, most surgeons and psychiatrists required their transsexual patients to obtain divorces from their spouses (if they were married) before sex reassignment surgery would be performed." This requirement diminished over the years and few, if any, transsexual patients are made to divorce their spouses today.1 This does not mean that marriage has become any easier; divorce is still often times a result of SRS after marriage, but frequently the outcome is a long court battle focused around gender, at times leading to the annulment of a marriage.

Legal disputes for heterosexual couples with a trans partner are in part due to individual state legislation banning sex reassignment. Additionally, same-sex couples (for instance a transman and a biological man) have received marriage licenses, while heterosexual couples (a transwoman and a biological man) have been refused, as a result of one spouse being transsexual, yet unable to completely transition legally.2 Therefore, the status of their relationship is changed, by the state, from heterosexual to "homosexual" and visa versa. There are two reasons for this: states with laws prohibiting sex changes and states with laws prohibiting the changing of a birth certificate.

"Although there is no statutory definition for 'completed sex reassignment surgery,' some individuals have found that without documentation of having had genital reconstruction, they cannot obtain a new birth certificate."3 This is contrary to the fact that most transsexuals are not encouraged, nor required, to have genital reassignment surgery, due in part to the expense of the varying surgeries and to medical complications, such as functionality. Whereas most states allow for birth certificates to be revised upon completion of SRS, there are at least four states (Florida, Idaho, Ohio and Tennessee) that forbid the amendment of birth certificates based on sex changes. One may have a name change granted but still be considered the previous sex because of this. "A probate court name change allows the individual to use the new name in a legal capacity, for everything from changing one's driver's license to signing official business paperwork. Most jurisdictions allow anyone, transgender or otherwise, to choose whatever name they wish to have as long as it is not adopted for fraudulent purposes."4 These procedures, naturally, differ from one state to another.

While a person may have gone through sex reassignment, regardless of whether or not genital reassignment surgery has been done, and perhaps has changed their birth certificate to prove their new sex, many states still do not validate these sex change operations. "Only ten states provide statutory law permitting one to change one's legal sex designation after completing sex reassignment surgery. In most jurisdictions, the process is informal, depending on no more than agency policy and interpretation of regulations to accomplish the goal."5

In the case that a birth certificate cannot be changed, and a state has legislation against sex changes, when a marriage changes from heterosexual to same-sex, one solution for dealing with legal problems, most likely related to anti-same-sex marriage legislation, is to claim one's birth sex, that which is listed on the birth certificate. Although returning to the sex one just left (and to a heterosexual marriage status) would solve problems such as receiving benefits or being covered by insurance as a married couple, what this entails is a denial of oneself and everything that has been worked for in transitioning; it is a step backwards rather than forwards. And this could work against a person who, prior to SRS, could not legally marry but now can, especially in light of those states that refuse to legally sanction changing one's sex.

Consequently, regardless of the situation, it seems that any trans marriage can be refuted. On the upside, "the state cannot dissolve a legal marriage without the consent of at least one party to the marriage."6 There are a limited number of parties that can dispute a marriage. Either spouse can contest a marriage by an attempt to invalidate the marriage, therefore disproving its existence. This can also be done through the divorce process. The government can oppose the marriage if either spouse, or in some instances both spouses, are attempting to claim federal or governmental marriage rights, such as state pension, the enforcement of wills or immigration rights. And anyone who has a financial state in the marriage can refute it; this includes groups or individuals such as insurance companies or medical doctors. As a result, there are few marriages that are challenged.7

The downside to this is that in the case of a divorce, the non-transgendered partner can use the sex reassignment of the other partner to their advantage, often leading to ill consequences for the trans partner. In fact, evidence may be more easily attainable for trans marriage disputes, especially when a state has legislation against sex changes or same-sex marriage. The legalization of equal marriage for all would change this, disallowing for arguments against transgender marriage. Regrettably, trans activism in legalizing same-sex marriage may be more of a hindrance then it is helpful, possibly leading to more governmental monitoring of marriage or even anti-transgender legislation, such as the dissolving of a marriage after a sex change, or voiding all legal sex-changes.8 The FMA could very well be the start of such legislation.

Footnotes:

1. Kristine W. Holt, "The Heart Has Reasons That Reason Does Not Know: The Conundrum of Same-Sex Transgender Marriage," Law Offices of Kristine W. Holt, Attorney at Law, May 1998, retrieved 03 May 2004, Section II 1-A.
2. SRS must be approved by a health care professional, but this does not mean that one is legally the opposite sex. Because of varying laws, legal transition is often more complicated (in regards to being allowed to transition) than biological transition, as is further explained herein.
3. Gay and Lesbian Advocates and Defenders (GLAD), "Transgender Legal Issues,"<http://www.glad.org/Publications/CivilRightProject/Transgender_Legal_Issues.PDF>, retrieved 01 May 2004, 14.
4. Gay and Lesbian Advocates and Defenders (GLAD), "Transgender Legal Issues,"<http://www.glad.org/Publications/CivilRightProject/Transgender_Legal_Issues.PDF>, retrieved 01 May 2004, 22-23.
5. Kristine W. Holt, “The Heart Has Reasons That Reason Does Not Know: The Conundrum of Same-Sex Transgender Marriage,” Law Offices of Kristine W. Holt, Attorney at Law, May 1998, retrieved 03 May 2004, Section III 1-B.
6. Holt, “The Heart Has Reasons That Reason Does Not Know: The Conundrum of Same-Sex Transgender Marriage,” Law Offices of Kristine W. Holt, Attorney at Law, May 1998, retrieved 03 May 2004, Section II 1-B.
7. Shannon Miller and Christopher Daley, “Trans Realities: A Legal Needs Assessment of San Francisco’s Transgender Communities,” A joint publication of The National Center For Lesbian Rights (NCLR) and the Transgender Law Center, <http://www.nclrights.org/publications/transrealities0803.htm>, 2003, 7.
8. Kristine W. Holt, “The Heart Has Reasons That Reason Does Not Know: The Conundrum of Same-Sex Transgender Marriage,” Law Offices of Kristine W. Holt, Attorney at Law, May 1998, retrieved 03 May 2004, Section III.