Same-sex marriages have existed legally in the United States for a long time now.
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I. INTRODUCTIONAlthough Texas law prevents same-sex couples from obtaining marriage licenses,(1) until recently the legal definition of sex has gone undefined. On October 27, 1999, the Texas Court of Appeals, Fourth Appellate District [hereinafter Fourth Court],(2) ruled that the legal definition of sex has nothing to do with a person's genitals during that person's lifetime, but was "immutably fixed by our Creator at birth."(3) Further, the Fourth Court ruled that a person's sex is evidenced solely by "chromosomes [which] do not change with either hormonal treatment or sex reassignment surgery."(4) The Littleton court found the almost seven-year marriage of Christie Lee Littleton and Jonathan Mark Littleton invalid because "[a]s a male, Christie cannot be married to another male," even though Christie and Mark engaged in vaginal-penile intercourse.(5) The ruling labeled Mrs. Littleton's amended birth certificate(6) "ministerial" and "not binding on [the] court."(7) It also prevented Mrs. Littleton, a forty-eight year-old widow, from suing for the alleged medical malpractice that caused her husband's death(8) by legally reducing her to a vaginaed male. These are the results of the Fourth Court following medical thinking that is thirty years out of date.(9) As an unintended result(10) of the Fourth Court's ruling that voided the straight-appearing, opposite-sex-appearing, heterosexual-appearing marriage of Mrs. Littleton,(11) some same-sex-appearing marriages within the jurisdiction of the Fourth Court became legal. For example, on September 16, 2000, Ms. Jessica Wicks and Ms. Robin Manhart Wicks were legally married in San Antonio, Texas.(12) Jessica's original birth certificate read "boy" and Robin's original birth certificate read "female."(13) These women shared vows, exchanged rings, and were blessed by a Minister of God in a private ceremony before about fifty friends and supporters.(14) Their marriage was similar to Christie Lee and Jonathan Mark Littleton's opposite-sex marriage,(15) except that they were two women getting legally married. Despite what one conservative lawmaker said,(16) this couple passed the "duck test."(17) Less than two weeks later, two more women obtained a marriage license.(18) Other same-sex couples have been invited to wed."(19) Even amateur chess players should have seen these couples coming as the political result of the Littleton decision.(20) Other couples that could now marry in San Antonio include those that were previously married as heterosexuals, but were coerced into divorcing by the transitioning partner's doctor prior to corrective surgery.(21) The coercion continues although it is not as prevalent.(22) Even so, those who were once married can remarry if they remained the best of friends and continued to live together.(23) More transsexual couples are networking at regional and national conferences and on the Internet,(24) and meeting couples that have remained legally married even though one in the couple underwent genital corrective surgery.(25) There are many such legal same-sex marriages in the United States today.(26) If such a marriage is challenged, the non-transsexual should sue, alleging that all the non-transsexual spouse did was remain true to the marriage vow.(27) This article will discuss the existence of same-sex marriages in the transgender community; the lesbian, gay, and bisexual (LGB) community continues to fight for its own legal same-sex marriages, but refuses to use transgender same-sex marriages as a wedge issue.(28) This article then addresses the important question of whether transgender same-sex marriages can survive attacks from Defense of Marriage Act statutes, other state action, or private litigants in other civil actions.(29) Finally, the article presents strategies to circumvent Littleton v. Prange until it is overturned.(30) II. THE STRUGGLE FOR THE LEGALITY OF SAME-SEX MARRIAGES The struggle within the lesbian, gay, and bisexual (LGB) community for the legality of same-sex marriage(31) is not the subject of this article. However, several speakers discussed this topic at the 2000 Albany Law Review Annual Symposium. For detailed information and references on this issue, refer to Paula L. Ettlebrick's Domestic Partnership, Civil Unions or Marriage: One Size Does Not Fit All;(32) Mark Strasser's Same-Sex Marriage Referenda and the Constitution: On Hunter, Romer, and the Electoral Process Guarantees;(33) or Vincent J. Samar's Gay-Rights as a Particular Instantiation of Human Rights.(34) A. Same-Sex Marriages Already Exist in the Transgender Community Same-sex marriages already exist in the transgender community.(35) Such trans-marriages exist when one or both partners(36) in a legal marriage are transgendered.(37) Although much has already been written about trans-marriages,(38) since both authors are in long-term trans-marriages,(39) were co-counsel in the Littleton case, and have extensive experience and contacts in the transgender community, the authors are uniquely situated to address certain issues that readers should consider. 1. There Are Legal Opposite-Sex Trans-Marriages Where the Transgendered Partner is a Part-Time Crossdresser. While this type of marriage is currently not under legal attack, the heterosexual crossdresser and spouse have a definite stake in the trans-marriage issue.(40) The stresses of homophobic discrimination,(41) which remains socially acceptable in the employment context,(42) can wreck a marriage. And when a transcouple is in public with the crossdresser cross-dressed, the couple passes the "duck test."(43) 2. There are Legal Opposite-Sex Trans-Marriages Where the Transgendered Partner is a Full-Time Transsexual, but the Marriage was Enacted Before the Transition.(44) Until the 1990s, almost all married transgenders seeking sex reassignment were coerced into divorce by the medical profession.(45) Much of this coercion began as self-preservation by the physicians, who did not want to be convicted under castration or mayhem statutes.(46) In 1971, the mere prescription of feminizing hormones resulted in a suit by the wife against the doctor.(47) In response to an e-mail inquiry on the "Phyllabuster" list serve,(48) dated October 31, 2000, titled, "I Am Searching for TGs Who Were FORCED TO DIVORCE Prior to Surgery," Frye received numerous replies. Some replies indicated that genital surgery without a divorce was impossible in the 1980s. One person who replied reported having had the surgery as recently as 1997, but only after a medically coerced divorce.(49) Dallas Denny(50) reminded us that after the Christine Jorgensen story made headlines in 1952, transgender clinics began as university-affiliated projects. Although the doctors initially knew little about their transgendered patients, they wrote medical journal articles and searched for grants.(51) So many transgendered people demanded help that the clinics set up stringent admissions standards, some of which were outrageous.(52) Both Denny and Sister Mary Elizabeth found that patients were most likely to get treatment by providing the desired answers.(53) As it matured, the organized transgender community began to respond to this coercion. In 1993, the International Conference on Transgender Law and Employment Policy (ICTLEP, also known as the Transgender Law Conference) issued the "Health Law Standards of Care for Transsexualism," which were reviewed at each Conference and updated at the Sixth Conference in 1997.(54) Standards One and Three both read, in part, "[i]f the patient is married, the physician [or surgeon] may not require divorce, but may also require the spouse to sign a waiver of liability form."(55) Also, Principle Five reads, "[i]t is unethical to discriminate in the provision of sex reassignment services based on the sexual orientation (actual or perceived), marital status, HIV status, or physical appearance of the patient."(56) In many states, the marriage laws state that you cannot get married if you are of the same sex.(57) Legally married couples have remained married even after one partner has changed sex, thereby creating a legal quandary.(58) 3. The Remaining Trans-Marriages Have Generated the Litigation Thus Far. The situation involved in most litigation is a transgendered person who has partially or fully transitioned at the time of marrying a non-transgendered person. Others discuss these cases extensively.(59) Therefore, this article will not discuss them except to mention a distinction, some newer cases, and a lengthy discussion of the Littleton case.(60) These cases were distinctive because the non-transgendered partner was trying to dissolve the marriage(61) rather than keep the marriage intact.(62) In this distinction, we are interested in determining how the opposite scenario will unfold. Will a marriage be considered legally intact if the transgendered spouse seeks to dissolve the marriage while the non-transgendered spouse desires to keep the marriage intact? Will courts find for the nontransgendered spouse, who remained true to the marriage vow, in order to grant them a divorce, inheritance, or standing to file suit in a wrongful death action? Three cases that may shed light on these questions are Benefit Determinations Involving Validity of Marriage of Transsexual Veterans,(63) Hernandez-Montiel v. INS,(64) and In re Estate of Gardiner.(65) In Benefit Determinations, the Department of Veterans Affairs determined that a transsexual veteran had a valid marriage in Texas nine years before the Littleton opinion.(66) The department found: Under Texas law, where a veteran has anatomically changed his/her sex by undergoing sexual-reassignment surgery and has thereafter legally married a member of his/her former sex, his/her marriage partner may be considered the veteran's spouse for the purpose of determining entitlement to additional vocational rehabilitation allowance payable on account of a dependent spouse.(67) Based on...
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