Same-sex marriages have existed legally in the United States for a long time now.

Albany Law ReviewVol. 64 Nbr. 3, March 2001

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Transsexual couples

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Same-sex marriages have existed legally in the United States for a long time now.

I. INTRODUCTION

Although 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 These are the results of the Fourth Court following medical thinking that is thirty years out of date.(9)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...

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