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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, September 12, 2007

A Marriage Story


My partner and I were legally married on August 22 in Florida in a beautiful ceremony on the beach at sunset. Same sex marriage in Florida? Well, sort of. It's a long story. Transgender people are in a unique position when it comes to marriage. We were thinking of getting a civil union in New Jersey, but there is some confusion because civil union is only for same-sex partners. Now, you may be thinking that we are a same-sex couple. I think that too. But that doesn't mean the state thinks it...

In several cases, the state courts have refused to recognize a change in gender as legal. In Texas, Mr. and Mrs. Littleton found this out when Mr. Littleton went into the hospital for a simple procedure and died as the result of medical malpractice. In due time, Mrs. Littleton contacted a lawyer and sued for medical malpractice. The opposing lawyer found out that Mrs. Littleton had transitioned years ago and claimed that no malpractice suit could be maintained because her marriage was invalid. Despite the fact that she had sex reassignment surgery and that her gender had been recognized by the state in the form of a new birth certificate, the Texas courts agreed and threw the suit out of court.

In Kansas, Mrs. Gardiner found this out when her husband died without a will. By law, she was entitled to a percentage of her husband's estate, with a percentage also going to her husband's children. Her lawyer contacted her husband's estranged son to tell him that his father's estate was in probate. The son found out that Mrs. Gardiner was transgender, and hired a lawyer to claim that she was entitled to nothing as a result of her identity. Again, despite the fact that she had transitioned years ago and that her gender had been recognized by the state in the form of a new birth certificate, the Kansas courts agreed with the son, and gave the entire estate to the estranged son.

In Florida. Mr. and Mrs. Kantaras were getting divorced. Mrs. Kantaras did not want her husband to have visitation of her 6 year old dautgher, whom Mr. Kantaras had adopted, and claimed that their marriage was a sham because Mr. Kantaras was transgender. The Florida courts agreed.

Courts in Ohio [In re Ladrach, 32 Ohio Misc.2d. 6, 513 N.E.2d 828 (1987)] and my home state of New York [Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y. Sup. Ct. 1971)] have made similar rulings. In short, every court that has considered the matter to this point has said that states do not recognize a change of gender in the context of marriage. If my female partner and I get a civil union, will that be invalidated on the same grounds? No one can say for certain.

So I had our lawyer contact the county clerk in Florida, who contacted his lawyer, and after providing a copy of my birth certificate (with an "M" on it) and my name change order and an affidavit certifying these were all referring to me, we were issued a marriage license, recognized by the State of Florida and the federal government. Nonetheless, I was saddened that this loophole had been created because the state disrespected transgender identity, and those involved suffered such sad consequences.

Of course, when we tell people we were married in Florida, people ask "You mean there's same sex marriage in Florida!?" And we reply "Well, sort of..."

For those who want more scholarly treatment, here is a law review article by Frye and Meiselman, provocatively entitled "Same-Sex Marriages Have Existed Legally in the United States for a Long Time Now"and an article by NCLR attorney Shannon Minter Transgender Persons and Marriage: The Important of Legal Planning

We are very, very happy.

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