If You Change Your Sex, Are You Still Married?

by hilzoy

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.

Comments

[david kilmer]

When I saw the NYT article, I thought of Jenny Boylan's book, and how much harder it would be to find out later. Just the fact that they could communicate about it so early on says something about the strength of their relationship.

[Bostoniangirl]

That transexual man who was on OPrah, because he's having a baby has thus far been considered legally married. He, however, changed his sex before he got married. I think that he lived in Oregon.

[John Thullen]

What the world needs now is love, sweet truth.

If the world can handle it.

[noen]

There is no way that Denise is the first, especially in New Jersey. Must be a slow news day. I've known more than a few in the community in that situation. Some marriages do survive one partner changing sex. It isn't that common and it's sure not the majority but it does happen.

FYI I'm transsexual and in my experience most people don't care in the abstract. It is when it is a family member or someone close to that they freak out.

Since I am being so open here. In my own case, when I transitioned I was accused by my ex of being a pedophile. This is because trans = gay = pedo. I was only allowed court supervised visitation because in the courts mind if mom is concerned then it must be concerned. I haven't seen my children in 15 years. It sucks, it's really been horrible, but I'd do it all again. (I'd try to do it better but I doubt that would happen.)

[mikesdak]

I know that marriage is a state issue, but I would think that a federal law defining how sex is legally determined would be feasible. DNA would probably be the better choice,given the abilities of plastic surgery. It would create some silly situations, but at least it would be consistently measurable.

[mikesdak]

I know that marriage is a state issue, but I would think that a federal law defining how sex is legally determined would be feasible. DNA would probably be the better choice,given the abilities of plastic surgery. It would create some silly situations, but at least it would be consistently measurable.

[Bob]

I have always thought that, from the state's point of view, marriage is a predefined contractual relationship.

Marriage entitles the man to expect to sire the children. It entitles the woman to expect the man to help raise them. It sets the default terms for inheritance.

Perhaps we could get over the "ick" factor if we separate the legal relationship from the religious one. People would register as domestic partners, with variations possible concerning children. Separately they could go to a religious authority for a ceremony.

Currently neither has legal force without the other. It confuses people.

[Incertus]

I think a better idea, Mike, would be to make gender legally irrelevant--why should the state get into the question at all? We're talking about the way people identify here, not about what a test reveals. And what about those people who simply choose to live as trans, as opposed to making the full transition? Better for the state to just butt out, allow consenting adults to form the kinds of unions they want to, and provide the same benefits to everyone, across the board.

[farmgirl]

noen -- wow, that is really sad about your children. I'm very sorry to hear that.

I want to thank you and the other transpeople (is that an ok term?) who have commented on these threads for sharing your perspective; it's very generous of you to give us "cissys" (heh) a window into your experience.

[hilzoy]

noen: That's awful about your kids. Truly awful.

One of the reasons I write about these issues is that I think so few people have any idea what this is like; and that since this is a blog that is not focussed on lgbt issues, we're more likely than, say, Pam's House Blend to have an audience who are unfamiliar with transmen and -women. If more people actually got what it's like, then perhaps the likelihood that some judge would be able to equate trans with gay with pedophilia (!) would diminish somewhat. In any case, I can only hope.

[mikesdak]

Incertus, I agree that taking sex out of the equation would be the way to go, but apparently that's going to have be done state by state, as the courts have pretty much held that marriage is a state isssue.

[lightning]

I have always thought that, from the state's point of view, marriage is a predefined contractual relationship.

Yup. This is an excellent example of why church and state should be separate. Looked at this way, banning same- sex relationships makes no more sense than requiring spouses to have different hair color.

[BethanyAnne]

I remember when I realized that if I had stayed in Texas, there would have been a point where I could have married either a man or a woman legally, though same-sex marriage in Texas was illegal. Kinda made all the rules seem sort of silly.

[noen]

I would think that a federal law defining how sex is legally determined would be feasible. DNA would probably be the better choice

Really? You sure about that? If so then prepare to have your preconceptions about gender exploded. And as far as I know there really is no law defining who or what is male or female. I think the reason this is so is because biology would not support current prejudices.

hilzoy
If more people actually got what it's like, then perhaps the likelihood that some judge would be able to equate trans with gay with pedophilia (!)

My own particular case is complicated but it never really got adjudicated because I didn't have the resources to challenge my ex or the county. Legal assistance for the poor is virtually nonexistent. I also gave in quite a lot because I thought cooperating was the best way (and had my own shame and guilt going heavy duty too).

Thanks farmgirl - everything is fine.

One thing I have noticed over time is that when I tell my story it tends to overwhelm whatever one was talking about before. So to get back to the topic. "If you change your sex, are you still married?" One reason this becomes such a problem is that while the trans community is usually included with the larger gay/lesbian community we have some significant differences. The big one is that sexual orientation is not the same as gender expression.

However, the larger society still does tend to see effeminate men as gay and masculine women as lesbian and in my opinion it has only gotten worse is the past few years. But then I live in the midwest so... what do I know?

I would also support taking gender out of the equation. That would help immensely but in the end it's educating people (and leadership) that will help the most I think.

[Les GS]

Our family is in a similar situation as Denise and Fran, although in our case it was the "wife" (me) transitioning from female to male. I did that about 10 years ago, and we'll have been married 21 years this summer. Because of the very fears Denise expressed, of having their marriage "dissolved," I have not gone so far as to legally change the F on my license to M. With two kids, now teenagers, we couldn't afford to have the structures of our family messed with, things like insurance, and all the other legal rights and responsibilities marriage gives a couple. This can be a little awkward when needing to show ID. Y'know, this bearded guy flipping out a license reading "SEX: F." :) Once we don't have dependents though, that F is gonna go.
Our family is quite active working for equal civil marriage rights.

[hilzoy]

Les GS: Thanks for your work and your story, and best of luck. (I'm trying to imagine the traffic cop's face when s/he sees the ID... and I hope you get to replace it asap.)

[Picador]

The comments above and in the story about determining sex from "DNA" are a bit misleading, as sexual expression is usually determined at the level of the chromosome, not the nucleotide. Which, of course, further raises the issue of the legal "sex" of people with unusual chromosomal configurations.

Theoretically, the state could draw a series of distinctions between people with various chromosomal configurations and/or acceptable levels of various hormones at various times during development, or various secondary sexual characteristics (expressed with or without resort to medical intervention). Then the people on one side of the line could only marry people on the other side of the line.

But I suspect only the Catholics and the Orthodox Jews would have the stomach for that kind of Byzantine, obsessive-compulsive, medieval nonsense.

[Jesurgislac]

Bob: Perhaps we could get over the "ick" factor if we separate the legal relationship from the religious one.

In the US, the UK, and in plenty of other countries around the world, the legal relationship of marriage has already been separated for many years from the religious celebration of marriage - and yet, as you see, people still get icky about the idea that a same-sex couple can marry or that being transgender does not have to end a marriage.

Perhaps what's needed is to have it clearly explained to Americans that in fact religious marriage in the US is an entirely separate thing from civil marriage: that a couple can have a religious marriage ceremony and not be legally married, or get legally married with no religious ceremony, or if they choose to do so, combine both legal and religious marriage in one event: in the US, mixed-sex couples are free to choose any of these options, and same-sex couples are free to choose to have a religious marriage ceremony, though not a legal one (except in Massachusetts).

It's a mystery to me why so many Americans apparently don't seem to comprehend this, because Bob is certainly not the first American to propose as a solution the situation that already exists in the US.

Mike: I know that marriage is a state issue, but I would think that a federal law defining how sex is legally determined would be feasible.

You're right, it would. The UK passed such a law four years ago: the Gender Recognition Act. Of course, nothing as impractical as DNA tests or mandated plastic surgery is required. Your gender in the UK is legally what it says on your birth certificate, and if you have changed gender, you can apply to change your birth certificate. There's no reason the US couldn't have a federal law like this: it would certainly be simpler than the current state-by-state business.

[Sean M. Brooks]

Dear Hilzoy. I trust you are well.

It seems to me most people are missing an obvious point about the Donald/Denise Brunner situation. Donald/Denise has NOT changed his sex or gender. GENETICALLY, he remains a male. All that his so called "sex change" has done is turn him into an emasculated male.

Sincerely, Sean

[Jesurgislac]

Dear Sean,

It seems to me most people are missing an obvious point about the Donald/Denise Brunner situation.

No, they're not. I suspect they're just better informed than you are. Forgive me this terseness; it's late, and I have to log off soon, and I have rather a lot to type before I do.

Donald/Denise has NOT changed his sex or gender. GENETICALLY, he remains a male. All that his so called "sex change" has done is turn him into an emasculated male.

"Gender dysphoria", "transgenderism", is accepted as a real health issue by all reputable medical authorities.

The notion that gender - male or female - can be pinned down by a DNA test is straightforwardly false. For example: roughly 1 out of every 500 people who present physiologically as male are in fact XXY. Google on Klinefelter's syndrome. Roughly 1 out of every 1500 to 2000 babies born are born with genitalia which cannot be determined to be male or female by a visual examination: more subtle forms of intersex are probably more common, if less likely to be "discovered", unless there's a problem.

There is no known correlation between chromosome patterns or intersex genitalia and transgenderism.

But, like it or not - and people who want to believe that human beings are either male or female and think this can be determined by DNA tests or physical examination usually don't like it at all! - some people simply are born or acquire in infancy the certainty that their gender is not what their body "says" it is.

As this essay, which you should read in full, defines it: "A transsexual is a person whose psychological sex does not match his or her anatomical sex."

If you think about it, Sean, you have probably known all your life you are male, and because this probably matches your physiological gender (and of course unless you have had a DNA test done, you can't know if it matches your chromosomes) you have never had cause to think about what it would be like if you had known all your life that you are male, but your body perpetually betrayed and confused you by being female.

Betrayal and confusion describe what trans friends have told me it was like to grow up with a body and a gender identity that they knew was not the one they should have. It is called gender dysphoria: it is a recognized syndrome: the cure is simply for the person who suffers from gender dysphoria to live as, and be recognized as, the gender they know they are.

You can argue that this is wrong or immoral, and these people ought to continue until they are unhappy, suicidal emotional wrecks, until they finally kill themselves, because that would be the moral way to treat them, and that it is immoral for someone with gender dysphoria to live a fulfilled and normal life as the gender they know they are.

But try to argue that the syndrome does not exist, and you merely make yourself sound like someone who has not troubled to even inform themselves of the basics before commenting: please do so.

[Anarch]

Donald/Denise has NOT changed his sex or gender.

Te's changed one of them, at least.

GENETICALLY, he remains a male. All that his so called "sex change" has done is turn him into an emasculated male.

Would this mean you'd then oppose the marriage of a woman and female-to-male transgender?

For that matter, what about an XXY and an XYY?

[noen]

I've known guys like Sean and trust me, they are often a LOT kinkier than they let on to be. One of the nice things about the revelations of the past few years is I feel absolutely normal compared to the typical republican. Craig, Vitner and the rest have done wonders for my self esteem. Thanks guys!

[Catsy]

Heh. Noen's comment reminds me. Speaking as someone who used to work at a cross-spectrum porn site, you would be astonished at the volume of people on the Internet searching for tranny porn.

Given the common polar relationship between hostily to a thing and craving for a thing, it would not at all surprise me if people with attitudes like Sean make up a large portion of them.

[dutchmarbel]

the likelihood that some judge would be able to equate trans with gay with pedophilia (!) would diminish somewhat.

You also ought to distinguish between pedophile and pedosexual. There are for instance quite a few pedophiles (at least in the Netherlands but I assume that would go for other countries too) where pedophiles won't have sex with children even if they could. Often because they think it would be damaging for the children they love.

I think that changing genders as an adult is such a difficult and hard trajectory that I don't understand how people can assume the transgender person doesn't really feel a need.

[hilzoy]

I appreciate the fact that commenters have discussed "people like Sean" and their possible sexual predilections, rather than Sean himself. It would be good to keep on being clear about the difference, and perhaps being more clear about the pretty low likelihood that people who are members of some large group, like being baffled about trans issues, share any particular sexual anything.

I know that I, for one, would not like to have people speculating about my possible kinks on the basis of the most general facts about me.

[George Arndt]

The law views gender as "absolute". But, biologically, its a bit more complicated. There are cases of people who are born with "abiguous genitals". Some Females are more masculine than others, Some Males are effeminant. And, of course, with hormones and surgury, genders has become more "flexable" than ever.

This, of course, creates havoc with laws against "same sex" marriage.

[mark k]

An earlier commenter suggested that this is not at all the first such case, and that's definitely right. There's at least one very well-known story that became a well-known court case:
http://zagria.blogspot.com/2007/08/whatever-happened-to-paula-grossman.html

[Evinfuilt]

This type of thing scares me. I feel rather safe with my 10yr Marriage in the Houston area, but only because I have a good lawyer willing and experienced to fight for me in case someone challenges our marriage.

But if I move back to Colorado, where I was married (as a male) there are now laws in place to try and remove it because I'm a female and so is my wife.

Of course, I'm a dual citizen and in England we'd be perfectly fine and accepted.

It hurts that the place I love the most (Colorado Mtns) maybe the worst place for me to live.

Still, this is only 1 of the hundreds of ridiculous problems that are thrown at us. Still, I'm in Texas, on the coast and have had nothing but 100% support from everyone I've met down here (sadly not my own immediate family, who would rather disown me than change a simple perception.)

My spouse put it this way "dangly bits don't matter, you're the same person."

[Sean M. Brooks]

Dear Hilzoy:

Thanks for your kind comments about me. I do appreciate them.

If I haven't responded to Jesurgislac's comments, it's mostly because nothing we say will change each other's minds.

As a single, heterosexual male, I don't think I have many kinks! (Laughs!)

STILL feeling irritatingly tired from my gall bladder surgery, btw.

Sincerely, Sean