Gender, Sexuality
and Law: Wacky Courts Allow Lesbian Marriages, Bar Heterosexual Ones
Harper Jean Tobin
Welcome back to the Docket’s
most exciting and often most verbose feature. This semester I’ll be tackling a
wide range of topics, including prostitution, public breastfeeding, and more;
your suggestions are welcome. Now, without further ado:
Last winter a
man and woman in Trumbull County, Ohio were denied a marriage license by a
court relying on legislation that had not yet been passed. What could prompt
such a denial? The groom had been born female. Though he had transitioned from
female to male five years earlier, and his amended (out of state) birth
certificate and (Ohio) driver's license now identified him as male, the court
held that, under Ohio law, sex is immutably fixed at birth. It relied on the
state's Defense of Marriage Act -- which had not yet passed the state Senate --
in further holding that they need not afford full faith and credit to the
groom's amended birth certificate. Exhausted by the prospect of further
litigation, the couple recently married in New Hampshire -- though of course
Ohio will not recognize this either.
For transsexuals in many states,
access to civil marriage has for decades turned upon courts' varying
definitions of legal sex -- what it is, whether it can be changed, and if so,
how. By what combination of identity, social roles, genitals, chromosomes,
hormones, and outward appearance is sex legally determined?
Though the Ohio decision concerned a
couple's application for a marriage license, more frequent are cases where the
validity of the marriage is never questioned until, for example, a widow brings
a survivor claim, or divorcing spouses contest alimony or child custody. The
result has been that (1) many male-female couples are prevented from marrying,
(2) some marriages of many years have been judicially annulled, (3) many
female-female and male-male couples have been able to marry, and (4)
marriages in which one spouse subsequently undergoes a gender transition remain
valid though both spouses are now of the same gender.
For example, in 1999 a Texas court
held that Christie Lee Littleton could not bring a survivor claim after her
husband's death; their seven-year marriage was invalid from the start because,
the court held, sex is determined by chromosomes and Littleton, a
post-operative transwoman, was XY. Hot on the heels of this decision, area
papers reported the nuptials of two lesbian couples where one bride was a
male-to-female transsexual.
Not all jurisdictions have seen sex
as immutable. The British Corbett decision of 1970, cited as precedent
by many American courts holding that sex is immutable, was abrogated by recent
legislation after it was found to violate the European Charter of Fundamental
Rights. The European Court of Human Rights’ 2002 ruling in that matter suggests
that the entire EU -- to they extent they don't already -- will have to
recognize changes of sex for the purpose of marriage.
As early as 1976, a New Jersey court
refused to accept a man’s claim that he did not owe his ex-wife support
payments because she was born male. The court was persuaded by expert testimony
that long-standing gender identity, present genitals, and social gender role,
were together more important than chromosomal sex or genital configuration at
birth. A recent Australian case held similarly. So did a Florida trial court in
the case of Michael Kantaras, whose ex-wife sought to annul their marriage and
deny him custody of their children (conceived through artificial insemination)
because he is female-to-male. This decision was reversed, and the marriage
annulled, on appeal last summer – but Mr. Kantaras retains custody and his
attorneys hope to prevail in the Florida Supreme Court.
While this issue has been resolved
in differing ways by courts, just under half of the states allow legal changes
of sex by statute. These state laws spell out specific -- but widely varying --
criteria allowing one's sex to be legally changed. Several of these states now
have anti-marriage constitutional amendments under which some may seek to
challenge transsexuals' marriages. But these amendments stating that "marriage
is between a man and a woman" do not negate the laws allowing one to
change whether one is considered a man or a woman, so heterosexual couples
where one spouse is transsexual need not fear. Even same-sex couples where one
is transsexual may be able to marry if, though fully transitioned, they do not
pursue the technical, legal procedure for recognition of their transition --
though this certainly opens the door for awkwardness and discrimination in
other areas of life.
What does all of this mean? For one
thing it means that, as attorney and legal scholar Phyllis Randolph Frye put
it, same-sex marriage has existed legally in the United States for a long time
now. Both couples of the same birth sex but of different apparent genders, and
couples of the same apparent gender though of different birth sexes, have long
been able to wed in various states. Oddly, marriage equality advocates seem not
to have recognized that these couples represent a kind of empirical test --
even before the Massachusetts decision in Goodridge -- of the proposition
that same-sex marriage will destroy family, church and society. The sky has not
fallen.
For another thing, it means that our
society and our legal system have moved away from a position of consensus that
the meaning of being a man or woman is static and self-evident, but have yet to
reach a new consensus. Jurists and lawmakers, whether seeking to define sex as
immutable or as subject to change, appeal to biological factors and to medical
opinion. But behind these competing medical discourses, and in between the
lines of judicial opinions, there seem to be on the one hand the notion of sex
as decreed by God, and on the other that of man and woman as categories defined
by self and society.