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Indiana Appeals Court Says Spouse’s Gender Change Doesn’t Void an Existing Marriage

Posted on: December 21st, 2013 by Art Leonard No Comments

The Court of Appeals of Indiana ruled on December 20 that an existing different-sex  marriage is not rendered void when one of the spouses has obtained a legal judgment of gender change.  Reversing a ruling by Judge Valeri Haughton of the Monroe Circuit Court, Judge Paul Mathias wrote for the court in Davis v. Summers that this construction of the state’s ban on same-sex marriage would be “beyond the purview of our constitutional authority to interpret statutes” and “would also result in an untenable situation regarding the parties’ child.”

David Paul Summers was married to Angela in October 1999, and their child was born in July 2005.  By that time, David Summers had already been diagnosed with gender dysphoria, and had filed a petition in the Marion Circuit Court for a name change to Melanie Lauren Artemisia Davis.  The court granted the name change petition in May 2005, before the child was born, but did not at that time grant a request to change the gender indication on David Summers’ birth certificate.  However, the Marion Circuit Court issued an amended order on October 21, 2008, directing that the gender designation on Davis’s birth certificate “be amended from Male to Female in order to conform to her identity, legal name and appearance.”  Melanie Davis, as she now was named, and Angela Summers split up shortly after this amended ruling was issued, and Davis later filed a petition to dissolve their marriage in Monroe Circuit Court on October 25, 2012, which was not opposed by Summers.  The parties negotiated a proposed dissolution order, which was provisionally approved by the trial court on January 23, 2013, under which Davis was granted custody of the child and Summers was ordered to pay child support.

However, for reasons not explained in Judge Mathias’s opinion, Judge Haughton, acting on her own motion, issued a new order on March 8, 2013, citing Indiana’s statutory ban on same-sex marriage, and stating: “When the order amending the Petitioner’s gender was issued on October 21, 2008, Petitioner’s gender designation was legally changed to female.  Pursuant to [the provision banning same-sex marriage], Melanie Lauren Artemisia Davis (formally [sic] David Paul Summers) a female was prohibited from being married to Angela Summers, also a female.  The marriage became void on October 21, 2008.”  Judge Haughton went on to hold that because the marriage was “void” as of October 21, 2008, the court “lacks the jurisdiction to dissolve a marriage because no marriage exists,” and she denied Davis’s petition for dissolution, thus vacating the January 23 action that had approved the dissolution and the custody and child support agreements.  This left Davis and Summers without any legally binding order determining parental rights and obligations towards their child.

Davis appealed, without any opposition from Summers.  In reversing Judge Haughton, the court of appeals ruled that Judge Haughton had misconstrued the effect of Indiana’s same-sex marriage ban on existing marriages.  The provision on which Judge Haughton relied states that “a marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it was solemnized.”  The court agreed with Davis’s argument that this provision was intended to prevent the recognition in Indiana of same-sex marriages that were performed in other states, but “does not automatically void a marriage that was initially valid in Indiana simply because one of the parties to the marriage has changed his or her gender.”  Judge Haughton had not relied on the other provision of the statute , which says: “Only a female may marry a male.  Only a male may marry a female.”

Judge Mathias found that there was support for Davis’s argument in another provision of the Indiana statutes, titled “Void Marriages,” which states that a marriage is void if an Indiana couple goes out of state in order to evade Indiana’s ban on various kinds of marriages, if they intended to return to Indiana after getting married.  “Simply said,” wrote Mathias, “there is nothing in the Indiana Code chapter dealing with void marriages that declares that a marriage that was valid when it was entered into becomes void when one of the parties to that marriage has since changed his or her gender.  And the section that deals with marriages between Indiana residents solemnized in other states to avoid the application of certain Indiana marital regulations does not mention same-sex marriages.  Nor does it need to do so, as these marriages are already void under Indiana Code section 31-11-1-1(b) even if they were solemnized in another state.”

Thus, the trial court’s reading “has the effect of adding the type of marriage at issue, a marriage between a male and female solemnized pursuant to Indiana law,” to the list of marriages that are “void ab initio” under the “Void Marriages” provision.  Judge Mathias opined that making such an addition to the list was beyond the authority of the trial court, and would have the undesirable effect of creating an “untenable situation” for the child of Davis and Summers.  “To conclude that the parties’ marriage somehow became void when the gender was changed on Davis’s birth certificate would permit Davis to effectively abandon her own child, even though the parties were validly married at the time of the child’s birth and even though Davis is the child’s father.  It would also leave the parties’ child without the protection afforded by Indiana’s dissolution statutes with regard to parenting time and child support.  We do not think that our General Assembly intended such a result.”

The court concluded that the statutory same-sex marriage ban did not apply to this case, since the parties did not “enter into” a same-sex marriage in Indiana, and they were not in a “same-sex marriage that was solemnized in another state.”  The court reversed the trial court’s ruling and sent the case back “for further proceedings consistent with this opinion.”  Presumably this means to reinstate Judge Haughton’s original order approving the parties’ dissolution agreement.

The court’s ruling suggests by implication that there is one kind of same-sex marriage that can exist and be legally recognized in Indiana: a marriage between a transgender woman and a person identified as a woman at birth that was solemnized before the transgender woman obtained a legally recognized change of gender designation (and similarly in the case of a transgender man who was married to a woman prior to his legally recognized change of gender designation).

One wonders whether this decision will inspire an urge by the Indiana legislature to amend the statute.  The legislature is scheduled to take up the question early in 2014 of putting a measure on the ballot to adopt a constitutional ban on same-sex marriages.  Depending how the appeals turn out in pending federal same-sex marriage cases in other states, such an amendment might be rendered unenforceable by a Supreme Court decision finding, consistent with the reasoning of U.S. v. Windsor, that same-sex couples enjoy a right to marry under the 14th Amendment.

The appeal in this case was not opposed by Angela Summers.  Melanie Davis was represented by Professor Stephen Sanders of Indiana University Maurer School of Law (Bloomington), and Earl R.C. Singleton of the Community Legal Clinic, also in Bloomington.