Family Law

• Author: Ally Windsor Howell
• Profession: Former practicing lawyer from Alabama
• Pages: 65-82

Family is one of the emotionally charged areas of human life. Humans love

and are deeply protective of their children. They seek to protect their chil-

dren from even perceived harm. They feel a deep sense of betrayal if their

spouse betrays them or even if they perceive such a betrayal.

Emotion clouds judgment. When bias and prejudice are mixed with emo-

tion and familial feelings and attachments, the combination can be explosive.

§6.1 Marriage

A transgender person in transition or even a transsexual after sexual reas-

signment surgery has a personal relationship dilemma: “Do I or don’t I tell

this person I love and care for about my past life as a male (or female)?” If

one tells the other person, he or she may back out of the relationship, which

will only deepen and magnify the sense of fear that comes with being “dif-

ferent.” If one does not tell the other person, and he or she discovers one’s

past later, it’s likely to cause a break up or domestic violence.

Transgender persons have been caught in the same-sex marriage issues

that have been debated so vigorously during the last number of years. Why

would that be? The answer is that even though a person has sex change sur-

gery, the reported court decisions have taken the position that that person

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Family Law

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is considered legally for the purpose of marriage to be the sex assigned and

designated on that person’s birth certi cate.

Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110

Stat. 2419, 2419 (1996), 1 U.S.C.A. § 7, is no longer an impediment to the

recognition of lawful same-sex marriages and spouses under the Immigra-

tion and Nationality Act if the marriage is valid under the laws of the State

where it was celebrated. It was declared to be unconstitutional by the U.S.

Supreme Court in United States v. Windsor.

1

This solves the matter as to

federal bene ts. However, in the last half of 2014, federal courts declared

as unconstitutional same sex bans in a number of states. See Appendix 5,

which has been updated to recognize those court rulings. But for state law

issues, marriages classi ed as same-sex marriages will still not be recognized.

Thus, inheritance and other bene ts of marriage under state law will remain

lost to some transgender persons in such marriages by virtue of the fact that

the transgender persons’ sex changes are given no legal effect.

The view of the overwhelming majority of jurisdictions on this issue is

represented by the Littleton case from Texas:

1.

Medical science recognizes that there are individuals whose sexual self-

identity is in con ict with their biological and anatomical sex. Such

people are termed transsexuals.

2.

A transsexual is not a homosexual in the traditional sense of the word,

in that transsexuals believe and feel they are members of the opposite

sex. Nor is a transsexual a transvestite. Transsexuals do not believe

they are dressing in the opposite sex’s clothes. They believe they are

dressing in their own sex’s clothes.

3. Christie Littleton is a transsexual.

4.

Through surgery and hormones, a transsexual male can be made to

look like a woman, including female genitalia and breasts. Transsexual

medical treatment, however, does not create the internal sexual organs

of a woman (except for the vaginal canal). There is no womb, cervix,

or ovaries in the postoperative transsexual female.

1. United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).

TRA NSGENDER PER SONS AND TH E LAW 66

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