When Is a Man a Man, and When Is a Woman a Woman?

Abstract:     
Courts are being asked on a more frequent basis to determine whether a marriage involving a transgendered spouse is an invalid same-sex union or a legal heterosexual marriage. Historically, these cases were all brought by one of the parties to the marriage who wanted to avoid marital obligations by having the marriage declared void. Recently, these actions have been brought by people who are not parties to the marriage. For example, in Texas, a doctor who sought to avoid liability under a wrongful death statute was granted summary judgment because the surviving widow who sued him was a post-operative male-to-female transsexual wife. The Texas Court of Appeals ruled that the wife was not legally a woman and the marriage was an invalid same-sex marriage. Similarly, a Kansas appellate court is currently reviewing a trial court decision that declared a marriage between a male-to-female post-operative transsexual and a man invalid as a same-sex marriage. The person contesting the validity of the marriage is the decedent's son who has the right to inherit the entire estate if the marriage is held invalid.

These recent court rulings have added a new dimension to the same-sex marriage debate. Because the Texas appellate court ruled that a post-operative transsexual remains the sex assigned at birth, Texas court clerks are now issuing marriage licenses to self-proclaimed lesbians who are able to show a valid birth certificate indicating that their birth sex was male. Thus, Texas has now become the first state in this country to approve what most of society would identify as a same-sex marriage.

Because the laws controlling the sex designated on a person's birth certificate, driver's license and passport vary by governmental agency and jurisdiction, a transgendered person's "legal" sex may change as the transgendered person crosses state borders. Typically, as one's legal sex changes, one's ability to marry will also change. In other words, a marriage between a post-operative male-to-female transsexual and a man will be considered a legal heterosexual marriage in some states and an invalid same-sex relationship in other states.

This article focuses on the policy concerns that courts and legislatures should consider when they are asked to determine the validity of a marriage in which one of the parties is transgendered. It analyzes the policy considerations that have shaped the same-sex marriage debate and concludes that these concerns should not control the determination of the validity of marriages involving transsexuals. Courts and legislature must consider additional policy concerns when they determine whether these marriages should be held invalid. How the courts resolve these transsexual marriage cases, however, may have a profound effect on the rights of gays and lesbians to marry.

Number of Pages in PDF File: 25

Keywords: marriage, same-sex marriage, gender identity, transsexual, transgender, gay, lesbian, homosexual

JEL Classification: K19, K39

Accepted Paper Series