The NYT has a story about a married couple who became New Jersey's first same-sex marriage when, 25 years after their wedding, Donald, the husband, became Denise. They stayed together: "“We’re one of the few of our friends who are still in our original marriage,” Denise Brunner said." But they face some legal problems, since no one seems to have a clue what to make of their marriage:
"The Brunners say they have no interest in obtaining a civil union — they consider it a downgrading of their relationship — but they do worry about their status.
What if the Internal Revenue Service questions their joint tax returns? What if they retire to North Carolina, a state that they say is less legally friendly to transsexuals and same-sex couples? What if they were taking their daughter Jessica to college in Pennsylvania, and were in a car wreck that left Denise unconscious — would the authorities accept Fran as her wife?
“Are they going to recognize that she can make the decision for me?” Denise asked. “We don’t know that, and that’s not the time I want to contest that in court.”"
Various courts have ruled in various ways:
"Urging the United States Supreme Court to tackle the issue in 2000, lawyers for Christie Lee Littleton, a Texas male-to-female transsexual suing her husband’s doctors for wrongful death, noted the confused landscape: “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”
The Supreme Court declined to take the case.
The New Jersey reference stems from a 1976 case in which an appellate court ruled that a man needed to pay support to his ex-wife, who was born male, essentially saying that sex is determined by current status, not DNA. But a 2004 Florida case took the opposite tack: a female-to-male transsexual who married a woman and then divorced lost custody of the children, as the marriage was declared invalid since both were born the same sex."
Imagine losing your kids because a court decides that your marriage, which was valid when you had them, is not valid any longer. Imagine further the joys of living in a state where it's not clear what the legal status of your marriage after transition is: whether, in the eyes of the law, a man who has become a woman is (a) still a man, and therefore in a standard heterosexual marriage, appearances to the contrary, or (b) a woman, in which case your marriage might no longer be valid, and you might be liable at any time to lose custody rights over your kids, inheritance, the right to make decisions for your spouse if she becomes incapacitated, and so on.
This is not hypothetical: here, for instance, is a case in which a woman married a man who (according to her testimony) knew that she had been born biologically male, and had transitioned some years before. When the man she had imagined was her husband died without a will, his estranged son from a previous marriage took her to court, argued that her marriage was invalid because she was a man and same-sex marriage is not permitted in the state of Kansas, won his case, and was declared the sole inheritor of his father's estate.
This is just grotesque. If you're legally married, the status of your marriage should not be altered by taking hormones or having surgery. Neither should your custody rights, or your right to inherit.
I would say that, of course, since I support same-sex marriage. But here's the thing: I don't really think that many people who oppose same-sex marriage would be happy with any resolution of the status of post-operative transsexuals. They plainly don't like the idea that someone who was born male and becomes female can marry a man: that's Teh Gay. But would they like it any better if that person, proclaimed by the courts to be a man, and yet by all appearances a woman, married a woman, and the courts upheld her legal right to do so? Somehow, I doubt it.
Mostly, I just read stories like this and think: this shouldn't be a matter of sexual politics, but of basic human decency. Here's the couple in the NYT story:
"The Brunners attribute their staying together, in part, to having discussed Donald’s gender-identity questions from the earliest days of dating.
“Fran helped me literally buy my first bra and first wig,” Denise recalled. “It just didn’t feel right trying to have a lifelong partner who didn’t know.”
Denise said her discomfort began in kindergarten: “I wanted to play in the kitchen, but the teachers were forcing me to go out with the boys in the sandbox.”
In high school, Denise recalled, “the first time I could put a name to what I was feeling” was when reading a book about sex-reassignment surgery. Fran said she thought marriage would stop the cross-dressing, but she kept discovering caches of women’s clothes, which led to fights.
“She was always resentful, because the money I would spend on my second wardrobe would be better spent on diapers, household expenses,” Denise said.
“And vacations,” chimed in Fran, a woman of fewer words.
In 2002, Donald started taking female hormones. Fran did not want to break up.
“She was still the same person, she’s still the same person, but the package had just changed,” Fran said. “Everything that attracted me to her, or him, is still there, and we’re comfortable.”"
That's a love story. Not a typical one, granted, but to me, it's all the more moving because I think it would be so tough to be either of the two: Donald, trying to understand what was up with him, perhaps hoping that marriage would make this all somehow go away, and when it didn't, wondering whether to risk his marriage to be who he felt he was; Fran, helping him buy the bra and the wig, and trying to figure out what to do about the fact that her husband wanted to become her wife. I think of the two of them trying to work it out together, and succeeding, and I am dumbfounded by their generosity and resilience, and their capacious hearts. And I cannot for the life of me understand why anyone would think it would be a good idea for some court to invalidate their marriage.