Can a Male-to-Female Transsexual Marry a Man?
Answered by Jennifer Levi, an attorney with Gay & Lesbian Advocates & Defenders. Sept. 25, 2001
Can a male-to-female transsexual marry a man?
Q: Dear Jennifer,
I am a male-to-female transsexual who will undergo sexual reassignment surgery in 2003. At that point, I expect to receive a new birth certificate from California declaring me female. If this happens, can I legally marry a man in Florida?
Thank you,
Robyn
A: Dear Robyn,
Unfortunately, transgender people are in somewhat of a legal nether land when trying to evaluate the lawfulness of their marriages.
In years past, I have advised people that they should be able to lawfully marry a person of the opposite sex if they changed the sex designation on their birth certificate or had the birth certificate issued in the jurisdiction where they sought to have a marriage validated.
But two recent appeals court cases from Texas and Kansas cast some doubt on this advice. In both cases, the transsexual litigants either had, or could have had, a birth certificate designating that they were of the opposite sex of their partner. Despite that, however, the courts looked beyond the birth certificate to other factors.
In Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999), a Texas appeals court invalidated the otherwise legal six-year marriage of a post-operative transsexual woman, holding that no surgery or treatment can change a person's sex in Texas and that only the marriage of a biological man and a biological woman is valid.
In re Estate of Gardiner 22 P.3d 1086 (Kan. Ct. App. 2001), a Kansas appeals court recently reversed a lower court decision invalidating the marriage of a transsexual woman and remanded for a factual determination of the widow's sex based on numerous factors, including chromosome makeup, gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing and sexual identity. It was a much better outcome than Littleton but still leaves unanswered the question of whom a transgender person may legally marry.
For what it is worth, in Gardiner, the court spoke favorably of a prior New Jersey decision, which placed great emphasis on whether a transsexual person was capable of "consummating" the marriage - that is, of engaging in traditional penile-vaginal intercourse. A court evaluating the validity of a marriage may look at the question of consummation as a prior New Jersey court did in validating the marriage of a male-to-female woman. See MT v. JT, 355 A.2d 204 (N.J. App. Div. 1976).
One California trial court also followed the New Jersey rule in validating the marriage of a female-to-male man.
While there remain strong legal arguments in most jurisdictions that a transsexual person may lawfully marry a person of the opposite sex, we also know that upon separation or divorce, some spouses have sought to invalidate otherwise lawful marriages using arguments of fraud or invalidity. My strongest advice to you would be to ensure that you document that any person you marry knows at the time of the marriage that you are transsexual. This acknowledgement could undermine any effort of a nontransgender spouse from disavowing the validity of the marriage in the future. It would not, however, be instrumental in defending the validity of the marriage as to third parties.
In addition, I strongly advise any transgender person who marries to execute a will, financial and medical powers of attorney and a relationship agreement. In other words, a transgender person is well advised to take every legal step possible to ensure that his or her legal relationship is respected if the lawfulness of the marriage is ever questioned.
Sincerely,
Jennifer Levi
Levi is an attorney with Gay & Lesbian Advocates & Defenders.
Sept. 25, 2001