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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.


Transgender Woman Wins New Trial on Inheritance From Her Husband

Posted on: February 14th, 2014 by Art Leonard No Comments

A three-judge panel of the Texas Court of Appeals ruled on February 13 that Nikki Araguz, a transgender woman who is the surviving spouse of Texas firefighter Thomas Araguz, is entitled to a trial of the question whether her marriage with Thomas was valid. Thomas died without a will, and his mother and ex-wife (suing on behalf of his children) contend that the marriage was not valid and thus cannot provide the basis for an inheritance for Nikki. Estate of Thomas Trevino Araguz III, 2014 Tex. App. LEIS 1573 (Tex. App., 13th Dist.).

Born Justin Graham Purdue in California in 19775, Nikki Araguz grew up in the Houston area and self-identified as female from a very early age. Indeed, evidence related by Chief Justice Rogelio Valdez in the opinion for the court suggests that Araguz always dressed as female. At eighteen, Araguz was diagnosed as having gender dysphoria, and began treatment, including hormone therapy and living as a woman. When she was 21, she filed a petition in the Texas District Court for a name change to Nikki Paige Purdue, which was granted by the court in 1996. She then filed an application in California to amend her birth certificate to show her new name, which was granted. She used the new birth certificate when she obtained a driver’s license in Kansas identifying her as female, and then used that license to get a Texas driver’s license, also indicating she was female.

On August 19, 2008, Nikki and Thomas Araguz applied for a marriage license in Wharton County, Texas. The license identifies Nikki as “woman.” The wedding was held on August 23. At that time, Nikki had transitioned in all respects except one: she had not yet undergone sex reassignment surgery, a procedure for which she had been saving money all her adult life. In October 2008, a few months after her marriage, she had the procedure, which was performed in Texas by Dr. Marci Bowers.

On April 28, 2010, Thomas gave a deposition in a family court proceeding involving the custody of the children from his first marriage, in which he stated, under oath, that he did not know that Nikki had undergone genital reassignment surgery, or that Nikki was “formerly male” or had undergone any type of “gender surgery.” Thomas testified in the deposition that Nikki always represented herself as female before their marriage. In the current proceeding, Nikki alleges that she and Thomas had agreed to take the position that she was female from birth, but Thomas was fully aware of the facts when they were married.

Thomas died on July 3, 2010, without a will. Less than two weeks later, Nikki filed a petition in San Francisco, California, Superior Court, seeking a new California birth certificate specifically designating her as female, which was evidently a detail she had overlooked when a decade earlier she had applied for a birth certificate showing her new name. This was granted by the court and California issued a new birth certificate designating Nikki as “female” on August 30, 2010, almost two months after her husband died.

Under rules of intestate succession, a surviving wife is the principal heir of a man who does not leave a will. If there are surviving children, the estate is split between the widow and the children. If there is no surviving spouse, a surviving parent may inherit, and surviving children are legal heirs as well. In this case, Thomas’s mother, who otherwise would not inherit, filed a lawsuit seeking appointment as administrator of her son’s estate and asking the court to declare that his marriage to Nikki was a “void” same-sex marriage, barred by Texas law. Thomas’s ex-wife also filed suit on behalf of the two minor children, also arguing that the marriage with Nikki was void.

In response, Nikki sought to vindicate her claim to be a surviving spouse, arguing that she was a woman at the time of her marriage. In support of this claim, she presented an affidavit from Dr. Collier Cole, a gender identity expert, who asserted that Nikki would be recognized as a woman at the time she married.

Another fact that is not part of Nikki’s story is also relevant. In 1999, the Texas Court of Appeals ruled in Littleton v. Prange that a marriage between a transsexual woman and a man was void as a same-sex marriage, regardless whether the woman had fully transitioned before the marriage. The Littleton court insisted that one’s gender as identified at birth was fixed for purposes of the marriage law, because no medical or surgical procedure could alter one’s genetic makeup and somebody born male could not be provided with female reproductive capacity. In 2009, the Texas legislature amended the state’s Family Code to provide that “an original or certified copy of a court order relating to the applicant’s name change or sex change” could be “proof of identity and age” for purposes of getting a marriage license. Thus, an important question in this case is whether the 2009 amendment had overruled Littleton v. Prange, in effect authorizing marriages between transsexual women and men (or vice versa).

The trial judge in Wharton County had granted summary judgment to Thomas’s mother and ex-wife, and denied Nikki’s motion for summary judgment, evidently finding that Littleton was a controlling precedent and that, as she still had male genitals when she was married, this was a void marriage between two men.

The court of appeals disagreed. The court found that the 2009 amendment had actually overruled Littleton, making it possible for a transgender woman to marry a man by using a court order relating to a name change or sex change as “proof of identity.” This overruling took place after the marriage of Nikki and Thomas, but before Thomas’s death. This does not end the case by any means, because the parties hotly contest whether Nikki was a woman at any relevant time from the date of the marriage until the date of Thomas’s death. Nikki had not had gender reassignment surgery until after the marriage, and did not obtain a new birth certificate specifically designating her as female until after Thomas’s death. It seems clear from the facts that Thomas’s affidavit given in the custody proceeding was false, as it is unlikely that a man who married a woman who had male genitals at the time of the marriage and who did not undergo sex reassignment surgery until several months into the marriage could possibly be “unaware” that his spouse had previously been a man or had undergone a gender-related medical procedure.

The Texas legislature’s 2009 amendment does not provide any clarity or guidance by setting specific standards for determining when a court can give an order relating to a sex change, so a determination must be made, probably as part of further litigation in this case, whether a person with male genitals can be considered female for purposes of the marriage law, based on the court order granting a name change with the corroborating evidence of a birth certificate indicating the new name and a driver’s license designating the individual as female. Dr. Cole, the only expert witness in the case so far, testified by affidavit that the determination of gender does not depend on surgical alteration, the most important factors being that the individual had been diagnosed with gender dysphoria and had lived in the preferred sex for at least a year, during which hormone treatment was taking place. The plaintiffs in this case (the mother and the ex-wife) had not presented any expert witness to counter this testimony, but the court said that the undisputed evidence that Nikki still had male genitals at the time of the marriage was sufficient to place in issue what her sex was at that time, at least for purposes of a trial as to the validity of the marriage. Texas recognizes the concept of informal marriage, under which the marriage of Nikki and Thomas could be valid if Nikki was legally female at any time before Thomas’s death, even if she would not have been considered female at the time of the marriage ceremony.

The court stated that the concept of gender dysphoria was not a matter of common knowledge, or generally within the expected knowledge of typical jurors or judges, so it was necessary to consider expert testimony in determining the answers to the factual questions in this case. Consequently, it was error for the trial judge to grant summary judgment, especially when the only expert testimony in the record, from Dr. Cole, supported Nikki’s claim that she was female when she married Thomas. It may be that as this case is litigated the Texas courts will give legal effect to the Standards of Care recognized by the World Professional Association for Transgender Health, under which Nikki would be deemed female as of the date of her wedding. Clearly, this court finds that the 2009 statutory amendment overruled Littleton, so it is possible for somebody who has been through a “sex change” — whatever that involves — to marry consistent with their gender identity.

Other lawsuits are pending in Texas challenging the state’s ban on same-sex marriage. Were the ban to be invalidated, same-sex marriages would not be void in Texas, and it would be clear that transgender people can marry any willing partner, regardless of sex, who is interested in marrying them and not otherwise disqualified by virtue of age, disability, or close legal relationship. But until marriage equality becomes a reality in Texas, this case may serve to provide the basis for transgender people to marry the partner of their choice.

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.

Hong Kong’s Highest Appeal Court Says Transgender Woman Can Marry Her Boyfriend

Posted on: May 15th, 2013 by Art Leonard No Comments

Overruling the Registrar of Marriages in Hong Kong, who refused to issue a marriage license to a “post-operative” transgender woman who sought to marry her male partner, the Court of Final Appeal of the Hong Kong Special Administrative Region ruled on May 13 that the woman, identified as W in court papers, was entitled to the license, although the majority of the court was not unanimous in its reasoning.  Ironically, such a right for a transgender woman to marry in her preferred gender is already recognized in mainland China, according to the court.  The Registrar’s position reflects Hong Kong’s previous status as a British possession in which the courts continue to follow British legal precedents.  In the U.K., such marriages are now legal by virtue of legislation enforcing a ruling by the European Court of Human Rights, but former British colonies may continue to enforce outdated British court rulings on the subject.

For the majority of the court, the ruling here was premised on the fact that W has gone through the entire cycle of gender transition, including surgery necessary to make it possible for her to engage in sexual intercourse with her male partner although, of course, such intercourse cannot lead to pregnancy.  The court noted that the ability to procreate through sexual intercourse is not a necessary feature of marriage in the modern state, in which people who are incapable of conceiving due to age or medical conditions are fully able to marry.  Indeed, the court majority was not even willing to hold that the ability to consummate the marriage through sexual intercourse was a necessary prerequisite.  Focusing on the facts of the case before it, the court held that surely W qualified, and that it would be up to the Hong Kong legislature to respond to the decision with a statute that develops the necessary criteria to govern in other cases.

The major different between the majority of the court and the concurring judge was over whether this case required resort to constitutional interpretation or could be resolved through statutory interpretation.  The marriage laws in Hong Kong unequivocally require that marriage be between a man and a woman, so the question is whether W can be deemed a woman for purposes of these laws.  Hong Kong has already gone a long way towards this conclusion by authorizing the issuance of new identity papers and passports designating somebody as legally a woman after gender transition, but the jurisdiction does not allow for changes on birth certificates, taking the position that such certificates are a historical record of gender as determined at birth.

The Registrar, in denying the license, relied on old British precedents holding that a person’s sex for purposes of the right to marry is the sex identified at birth.  As a matter of normal statutory interpretation, the majority of the Court held that this could not be questioned, and it was necessary to consider constitutional arguments over equality, especially as the Hong Kong legislature had followed the lead of the British Parliament in1971 when that body codified the old judicial precedent of Corbett v. Corbett, a 1970 decision by the Law Committee of the House of Lords.  Hong Kong had adopted amendments to its marriage law incorporating the same view.

The court looked to Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights.  Article 37 provides: “The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”  Article 19(2) provides: “The right of men and women of marriageable age to marry and to found a family shall be recognized.” 

The court concluded that under the Corbett ruling and the Registrar’s decision implementing it in W’s case, W would, in effect, be precluded from the right to marriage.  Having gone through a total gender transition, including anatomical alteration, she is physically a woman who desires to marry a man, and her right to marry as a woman is thus totally denied.  She can’t marry another woman even if she wanted to, because Hong Kong law makes marriage available only to different-sex couples, and the court emphasized that this case did not, in its view, involve the question of same-sex marriage, since W is legally recognized as a woman.  Since Hong Kong recognizes W in law as a woman, the court found that the only way to effectuate her right to marry is to declare the existing statute unconstitutional insofar as it would preclude her from marrying.

However, the majority recognized the administrative difficulties this might create due to the different degrees of transition through which any particular transgender woman might have gone when she seeks a marriage license.  The court pointed out that the U.K. has established through legislation a detailed procedure for determining gender identity as a response to the European Court’s ruling that transgender individuals should be not deprived of their right under the European Convention to marry and form a family.  Under the British model, surgical transition is necessary for a transgender woman to be able to marry a man.  While the court ordered that W be granted the license she is seeking, it stayed its ruling as to any other persons for up to a year to give the legislature time to enact the necessary provisions through which a determination can be made in any particular case whether the transgender women seeking a marriage license is qualified to receive one.  The court strongly hinted that a law patterned on the U.K. measure would be appropriate.  Although of course the ruling is not binding on the Hong Kong court, the court paid much attention to the European Court of Human Rights’ Goodwin decision, which had prompted the U.K. to adopt its Gender Recognition Act.

The concurring judge, Justice Bokhary, differed with the majority on the need to reach the constitutional question, opining that the court could, through “remedial interpretation,” bring the existing law up-to-date consistent with current understandings of gender identity and the ability of modern surgery to alter a transgender woman so as to justify a legal sex designation change.   Dissenting, Justice  Chan contended that society’s views on these matters had not evolved so far in Hong Kong as they had in Europe, and that the question of marriage should be dealt with legislatively, not through a constitutional ruling of the court.

W was quoted in the press as hailing the decision but insisting that it was just one step in a larger struggle to achieve equal rights for transgender individuals in Hong Kong.   Chief Justice Ma and Justice Ribeiro were identified as joint authors of the majority decision, to which Lord Hoffmann signified concurrence.  Justice Chan dissented.  Justice Bokhary concurred in the result.