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Arizona & California Courts Recognize Marriages between Transgender Men and Women

Posted on: August 14th, 2014 by Art Leonard 2 Comments

Two recent court decisions show how far we have come in getting the judicial system to understand and respect gender transition.  In Miller v. Angel, No. GD053180 (Cal. Superior Ct., Los Angeles County, August 6, 2014), and Beatie v. Beatie, No. 1 CA-CV 13-0209 (Arizona Court of Appeals, August 13, 2014), the courts found that they do have jurisdiction to dissolve out-of-state marriages between a transgender man and a woman, which would first require recognizing the validity of the marriages.  This is no small thing, because there have been quite a few American court decisions holding, to the contrary, that such marriages are actually same-sex marriages that are null and void.  In both cases, the courts making these new decisions were applying the law of states that did not allow or recognize same-sex marriages when these marriages were contracted.

Jake Miller was born female.  In 1996 he had “sexual reassignment surgery” and subsequently applied to the California courts for a judgment changing his name and official gender.  That judgment also authorize him to apply for a new birth certificate, which he asked his attorney to handle.  However, his attorney at the time did not follow through with this.  In 1999, Miller married Karen Winslow, but the marriage was short-lived, ending in divorce in 2002.  Miller, who was then living in Louisiana, listed himself on a website for those seeking to date transsexual men, through which he met Elayne Angel.  On October 22, 2003, they signed a document titled “Matrimonial Regime” in which Miller was referred to as the husband and Angel the wife.  This seems to have been some sort of prenuptial agreement.

On November 17, 2003, Miller and Angel obtained a marriage license and went through a civil marriage ceremony.  The notary did not request to see their birth certificates, but asked for proof of age, which they provided through their driver’s licenses.  They both later testified that they were unaware that Louisiana law required marriage license applicants to provide their birth certificates.  Several years later, in 2006, Miller applied for and received a new California birth certificate identifying him as male.

While living together in Louisiana as husband and wife, Miller and Angel filed joint state and federal tax returns.  They then moved to Mexico, where they lived for several years until they had a “falling out” in September 2013, when Angel asked Miller to move out of their home.  Miller went to California to stay with his sister and filed a Petition in Los Angeles County Superior Court for a legal separation.  When the petition was served on Angel, she responded without objecting to jurisdiction.  Miller amended his action to seek a marital dissolution, and Angel responded again without raising any jurisdictional issue.  But when Miller sought support payments, Angel changed her tune and filed a petition in Louisiana seeking an annulment of the marriage.  She claimed that the marriage was actually a prohibited same-sex marriage that should be annulled, and pointed out that at the time the marriage ceremony was performed, Miller did not have a birth certificate designating him as male. She also raised an objection to the jurisdiction of the California Superior Court.

L.A. Superior Court Judge Dianna Gould-Saltman held a hearing on July 29 on “the validity of the marriage.”   The court received expert testimony from a Louisiana law professor and a Louisiana lawyer who specializes in family law.  Both of them testified that the marriage was null and void under Louisiana law because the law requires presentation of birth certificates and, at the time, both intended spouses’ birth certificates identified them as female.  Thus, the marriage was prohibited under Louisiana law, in their opinion.  The parties both testified that at the time they were not aware that birth certificates were required, and that the notary did not ask to see birth certificates, just some proof of age, and had accepted their driver’s licenses for that.  At the time, they both believed that they had been validly married.

California and Louisiana law both provide that a person who undergoes gender transition can obtain a new birth certificate on presentation of evidence of their surgical alteration to the desired gender.  There was no question that the California court order that Miller obtained, changing his name and recognizing his male gender, was a judicial order or judgment, that would ordinarily be entitled to be accorded full-faith-and-credit by a Louisiana court.  “The Court believes that any analysis of the issue of the validity of the parties’ marriage must begin with the concept of ‘full faith and credit,'” wrote Judge Gould-Saltman, underlining the word “full.”  “In this case, the State of California had entered a judgment determining Petitioner to be male in 1998.  By the testimony of Professor Carroll and Mr. Transchina, although not requested to do so, he believed the State of Louisiana might give partial faith and credit to this judgment but not full faith and credit.  The testimony indicated that the California judgment might be considered for purposes of identification, obtaining a Louisiana driver’s license, draft eligibility or which prison to send somebody, but might not be given credit for purposes of marriage.  The Court heard no testimony that a Louisiana resident who had a gender reassignment and sought a new birth certificate pursuant to Louisiana law would not thereafter be able to marry a person of the opposite sex.  A review of that statute, on its face, contains no such prohibition.”

Although both experts had testified that the marriage was a nullity because Miller did not have a birth certificate designating him as male, Judge Dianna Gould-Saltman was not willing to adopt that conclusion.  “There is no evidence that Petitioner could not have obtained a birth certificate identifying him as male prior to the date of marriage in that he had the judgment allowing him to do so, had submitted the papers to his attorney for that to be done and that, but for the failure of the attorney to file the papers, it would have been done.”  The judge posed a pointed hypothetical question: “Had Petitioner sought to marry a man in Louisiana, with a California judgment finding that Petitioner was also a man, would Louisiana issued such a license?  It seems unlikely in that all agree that Louisiana had, in 2003, a public policy against same-sex marriage as it does today.”

Because the California judgment from 1998 had established that Miller was male, and not a woman, “the failure of the clerk of court to request a birth certificate at the time of the issuance of the marriage license is a technical defect not affecting the validity of the marriage,” the court concluded.  If the clerk had asked for a birth certificate showing Miller as male, Miller could have promptly obtained one from California by submitting the court judgment on his name and gender.  The court found that Angel had failed to meet her burden of proving that the marriage was invalid.

Judge Gould-Saltman also briefly discussed California’s “putative spouse” doctrine, under which somebody who reasonably believes themselves to be married will be treated as married for various legal purposes.  In this case, the parties had applied for and obtained a license, after giving the clerk the documentation requested, had signed their pre-marital agreement, and participated in a wedding ceremony.  Under the circumstances, they would qualify under California law as putative spouses, even if the marriage was found to have a legal defect.

Thus, the court denied Angel’s motion to quash Miller’s dissolution petition, and the case can go forward.

The Arizona case, Beatie v. Beatie, is a bit more complicated.  Born as Tracy Lehuanini Lagondino in Hawaii in 1974, Thomas considered himself male from an early age despite his female anatomy.  Numerous discussions with his doctor led to a testosterone hormone therapy regime and discussions about surgical alteration.  Between 1997 and 1999, Thomas underwent testing for a definitive diagnosis and upon determination that his true gender was male, engaged in “extensive hormonal and psychological treatment to conform to his gender identity,” wrote Judge Kenton D. Jones for the Court of Appeals.  Thomas’s doctor referred him to Dr. Michael Brownstein, who did gender transition surgery.  Thomas underwent surgery in 2002 to create a male-contoured and male-appearing chest, but did not have the more invasive internal and “bottom” surgery.  After surgery, Dr. Brownstein prepared an affidavit for the court attesting to Thomas’s gender transition.  Brownstein stated in the affidavit that Thomas had “undergone surgical procedures performed by me to irreversibly correct his anatomy and appearance.  This should qualify him to be legally considered male within the guidelines of the particular jurisdiction in which this individual seeks to legally change his gender status.”  Based on this documentation, Thomas obtained a new Hawaii driver’s license, altering his name from Tracy to Thomas, and undertook the necessary steps for a legal name change and issuance of a new birth certificate that identified him as male with the name Thomas Beatie.

A month after Thomas had completed these procedures, he and Nancy were married in Hawaii.  At the time, Hawaii’s marriage law prohibited same-sex marriages.  (Late in 2013 Hawaii enacted marriage equality, essentially mooting a federal lawsuit challenging its ban on same-sex marriage, but that is not relevant to this case.)  At the time they applied for the marriage license, Thomas presented identification satisfactory to the Hawaii State Registrar.

Nancy was unable to bear children. Because Thomas had not submitted to internal or bottom surgery, he was still capable of doing so.  They agreed that he would conceive and bear children for the couple using donor insemination.  The pregnancy of the very masculine-appearing bearded Thomas turned into a bit of a media sensation, as his very-pregnant photograph seemed to be everywhere.  In this litigation, Dr. Brownstein testified that Thomas’s childbearing capacity did not negative his transgender status.  Nancy adopted the children after they were born, and their birth certificates list Nancy as the mother and Thomas as the father.  After the Beatie family had lived in Oregon for some time, they moved to Arizona in 2010.  By 2012, the marriage had broken down, and Thomas filed an unopposed divorce action in the Arizona Superior Court in Maricopa County.

The Family Court judge, Douglas Gerlach, was concerned about whether he had jurisdiction, since a divorce action could only go forward if the parties were married, and aware that Thomas had produced three children while married to Nancy, he was concerned that their marriage would not be recognized in Arizona.  After receiving briefs and hearing oral argument, Judge Gerlach decided that he could not recognize this marriage.  He felt that the Arizona legislature had repeatedly recognized pregnancy as a uniquely female attribute.  Regardless of what Hawaii had done in the way of recognizing Thomas as male, Judge Gerlach felt that he could not do so. He was concerned that Thomas had not disclosed to Hawaii authorities that he was still capable of becoming pregnant when he applied for the name change and new birth certificate.  Thus, in Gerlach’s view, this was a same-sex marriage, as “the marriage was between a female (Nancy) ‘and a person born a female (Thomas), who at the time of the wedding was capable of giving birth and later did so.'”  Although both parties desired that the marriage be dissolved, Gerlach concluded that there was no marriage to dissolve, and dismissed the case for lack of jurisdiction.

Judge Jones, writing for the unanimous three-judge panel, sharply disagreed with the trial court.  He found that Thomas had met the requirements of the “clear and unambiguous language” of the Hawaii statute on gender change.  The affidavit from Dr. Brownstein was not required to have the degree of specificity that Judge Gerlach was looking for.  As long as Brownstein had verified that Thomas underwent “a sex change operation” and should be qualified to be “legally considered male,” the Hawaii requirements had been met.  “Therefore,” wrote Jones, “the possibility of Thomas giving birth to children did not preclude him from legally amending his birth certificate under the plain language of the Hawaii statute.  Further, there is no apparent basis in law or fact for the proposition that in the event Thomas gave birth after having modified his gender designation, it would have abrogated his ‘maleness,’ as reflected in the amended birth certificate.”

Ironically, the court found that Arizona’s requirements for amending birth certificates for gender change was even less demanding than Hawaii’s, and would easily have been met by the documentation that Thomas presented in Hawaii.  An affidavit from a doctor is not required in Arizona, merely a written statement “that verifies the sex change operation.”  In common with Hawaii, Arizona’s statute “does not require specific surgical procedures be undertaken or obligate the applicant to forego procreation.”

As the California court had done a week earlier, the Arizona court turned to the full faith and credit clause of the U.S. Constitution, finding that Arizona had essentially enacted the requirements of full faith and credit in its statute providing that “marriages valid by the law of the place where contracted are valid in this state, except marriages that are void and prohibited by Sec. 25-101.”  The only relevant prohibition in Sec. 25-101 would be for same-sex marriages.  But the court of appeals had determined that Thomas is legally male, based on the requirements of both the Hawaii and Arizona statutes governing birth certificate gender amendments, so that was not a problem.  Pointed out Judge Kent, “at the time Thomas and Nancy married, Thomas possessed dispositive, state-issued credentials reflecting his ‘male’ status, and Nancy held similar credentials that dispositively reflected her ‘female’ status.  Their marriage, therefore, was ‘valid by the law of the place where contracted,'” and thus valid in Arizona.  The court saw Hawaii’s issuance of a marriage license at a time when Hawaii also prohibited same-sex marriages as significant.

“In interpreting and applying the nearly identical laws of Arizona and Hawaii regarding the issuance of amended birth certificates predicated upon transgendering,” wrote Jones, “we are obligated to allow those who obtain such certificates the rights attributable to the assertions of their amended certificate — the same rights that would inure to one who had been issued that certificate at birth.”  This would, of course, include the right to marry a person of the other sex in a jurisdiction that only allowed different-sex marriages.  Thus, the court concluded, the family court had jurisdiction to decide this case.

The court also noted that “the right to have children is a liberty interest afforded special constitutional protection,” so it might be unconstitutional to require somebody to undergo sterilization as apart of gender reassignment procedures in order to recognize their preferred gender for purposes of legal status.  But a ruling on this point was not necessary to the decision and the court refrained from rendering such a conclusion.

In Miller v. Angel, Jake Miller was represented by Alana Chazan of Baumer & Chazan Law Group, and Elayne Angel was represented by Michael Whitemarsh of Land Whitmarsh LLP, both California law firms.  In Beatie v. Beatie, Thomas was represented by David M. Cantor of Cantor Law Group and Nancy by David B. Higgins of Law Office of David B. Higgins, both of Phoenix.  The Transgender Law Center participated as amicus in both cases.

 

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2 Responses

  1. Alyson Meiselman says:

    Does this spell the end for Littleton v. Prange (TX) and LaDrach (OH)? I certainly hope so! Fortunately, same-sex marriage now being legal, by statute or case law, in so many states may render moot the issue when SCOTUS makes a determination. Though I would have preferred a clear line of cases… just in case SCOTUS errs toward the influence of the conservative right.

  2. Art Leonard says:

    I’ve received an email from Ms. Angel, stating that there is a “glaring error” in my article. My article is based on the court opinion and I think accurately reflects what the court said. Ms. Angel contends that the California court did not have jurisdiction because neither she nor Mr. Miller met the residency requirements for the divorce proceeding, and that failings by her attorney contributed to the court’s decision.

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