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Posts Tagged ‘Transgender’

Perhaps, someday, I will have the time to write a proper blog on this topic. For now, however, I simply want to record (for my own future use, and that of my friends) various internet discussions on the the use of the terms “cisgender” and “cissexual” and the issue of cis privilege. I have encountered these discussions over the last few days as I explored these topics in response to the controversy that erupted on Pam’s House Blend, when one cisgender male objected to being informed that’s who/what he is because it hurt his feelings to have his position of privilege as a cis person (i.e., one who doesn’t have to endure the challenges, not to mention the harassment, discrimination and other oppression, that those of us whose gender identity differs from the biological sex to which we were assigned at birth, i.e., trans folks, experience on a regular basis) pointed out to him. I suspect I’ll revise and add to this list as time goes on.

The posts where this controversy arose on PHB:

http://www.pamshouseblend.com/diary/11728/aravosis-needs-to-issue-his-own-apology-to-trans-people-before-1st-citing-tgs-on-lgbt-civil-rights

http://www.pamshouseblend.com/diary/11753/

The resulting discussion on Questioning Transphobia, which contains links to several other relevant discussions: http://questioningtransphobia.wordpress.com/2009/06/29/cis-is-hostile-terminology-really/

Julia Serano’s blog post on the origins, of these terms and her use of them in her book, Whipping Girl: http://juliaserano.livejournal.com/14700.html

Some discussions prompted by the above discussion on QT:
http://www.xoros.net/2009/06/30/cis/
http://queersubversion.blogspot.com/2009/06/cisgender-privilege.html
http://tgnotwhatyouthink.blogspot.com/2009/07/counteroffensive.html
http://mythcongeniality.blogspot.com/2009/07/in-margins.html

An earlier discussion on QT explaining why every cis person should “check [her/his] cis privilege” before getting all huffy after being told s/he *is* cisgender and/or cissexual and, consequently, is speaking from a place of cis privilege: http://questioningtransphobia.wordpress.com/how-to-check-your-cis-privilege/

A simple explanation of the meaning of “cis”: http://smashthecisarchy.wordpress.com/2009/04/23/trans-101-what-is-cis/

An interesting and informative post that explains why I will hereafter ensure that I always say “trans woman” and “trans man,” not “transwoman” and “transman,” which ties into the discussion of cisgender, cissexual and cis privilege: http://takesupspace.wordpress.com/2008/10/15/put-the-goddamn-space-in-transwoman-transfeminism-transmasculine-etc-language-politics-1/

UPDATED with links to some additional discussions that have recently arisen.

UPDATE, 7/13/09
A cis woman’s take on being cis – http://jadedhippy.blogspot.com/2009/07/hey-guess-what-im-still-cisgender.html
Continuing discussion on Questioning Transphobia – http://questioningtransphobia.wordpress.com/2009/07/04/a-point-about-cis/

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When I heard yesterday that the jury in the trial of Allen Andrade, the man charged with murdering Angie Zapata, had reached a verdict in less than two hours, I was hopeful, since a quick verdict usually means that the prosecution’s evidence was so overwhelming that the jury saw no need for extended discussion. As I watched the judge read the verdicts convicting Andrade on all counts, my hope turned to elation. To the extent that our criminal justice system can actually deliver “justice,” the jury did everything that we could have hoped for. My elation, however, was, and will always be, tempered by the knowledge that Angie, a beautiful young trans woman, will never have the opportunity to live the life of peace and dignity that all of us, trans- and cisgender alike, deserve.

For the rest of the day, I surfed the Web to see what others were saying about this truly momentous event. There I found several people expressing concern that the jury’s verdicts may be vulnerable on appeal on the theory that the short duration of their deliberations indicates a failure to adequately consider the evidence. My experience as a criminal appeals attorney, however, tells me that there is no reason for such concern.

The Weld County District Attorney’s Office charged Andrade with first degree murder and a bias-motivated (i.e., “hate”) crime for bludgeoning Angie to death with a fire extinguisher that he found in her apartment. Before the trial began, however, his attorneys asked the judge to tell the jurors that they had the option of convicting Andrade of second degree murder, manslaughter or criminally negligent homicide, instead of first degree murder. Much to my surprise, the judge agreed and instructed the jury on all four types of homicide as “lesser included offenses.” (A “lesser included offense” is a crime that contains some, but not all, of the elements of the greater charge, such that it’s impossible to commit the greater offense without also committing the lesser. As long as the evidence supports a conviction on the lesser offense, the Constitution requires that the jury be given the option to consider both the greater and the lesser offenses.)

The law on when the jury can pass over the greater offense and consider convicting the defendant on a lesser included varies from state to state. In this case, the judge instructed the jurors that they could not consider any of the lesser included offenses until and unless they first found Andrade not guilty of first degree murder. Thus, there was no reason for the jury to spend any time on those offenses until they decided whether to convict Andrade on the primary charge.

Throughout the trial, Andrade and his attorneys admitted that he killed Angie. That admission meant that the jury only had to answer two questions on the first degree murder charge: (1) was the murder intentional, i.e., was killing Angie his goal when he began to beat her with the fire extinguisher; and (2) was the murder committed “after deliberation,” i.e., was it premeditated. As the jury’s quick verdict demonstrates, those two questions were pretty easy to answer. Here’s why.

First, bashing someone in the head with a fire extinguisher multiple times until her skull is crushed is a pretty good indicator that Andrade’s purpose was to kill Angie. After all, you don’t do that thinking, “Hmmm, she might or might not die if I bash her head in. Let’s try it and see what happens.” In addition, the autopsy showed that Andrade didn’t hit Angie any place other than her head. You don’t hit someone with a lethal weapon in the head but nowhere else unless you intend to kill her. In other words, because of the way he did it, it’s clear that Andrade intended to kill, not merely injure, Angie. Thus, the murder was intentional.

Second, because the most damaging portions of his confession were suppressed, the jury didn’t get to hear Andrade tell Det. Tharp that he hit Angie with the fire extinguisher the first time and thought she was dead; then, while he was going through her apartment figuring out what to steal, he heard Angie “gurgle” and saw her sit up, so he went back with the fire extinguisher and, this time, made sure she was dead. That’s absolutely conclusive evidence of premeditation, but, as I said, the jury didn’t get to hear it.

What they did get to hear is that Andrade started beating Angie with his fists. Apparently dissatisfied with the damage he could do with his fists alone, Andrade paused, took the fire extinguisher down from the wall of Angie’s apartment and used it to kill her. That pause, even if all he had to do was reach over and grab the extinguisher without taking a single step, was ample time for the premeditation or deliberation that the law requires for first degree murder.

Deliberation or premeditation, however, requires more than just the passage of time. It requires the prosecution to prove that the defendant actually reflected on or thought about what he was doing before delivering the fatal blow. So, how do we know what Andrade was thinking during that pause while he grabbed the fire extinguisher? The answer to that question is similar to the answer to the first one. We know Andrade was thinking about how he was going to kill Angie, because you don’t grab a lethal weapon like a fire extinguisher, after beating someone with your fists, and then use it to bash in her skull unless your plan is to kill her.

At this point, you’re probably saying to yourself, but what about the evidence (primarily the things Andrade said to his girlfriends from jail) that indicated that Andrade acted impulsively and without thinking or even knowing what he was doing? It’s true that there was plenty of evidence that the jury could have relied on to acquit Andrade of first degree murder. The beauty, and sometimes the bane, of the jury system in this country, however, is that it simply doesn’t matter how much contrary evidence there was. What matters is whether the prosecution presented enough evidence for a reasonable jury to find the defendant guilty beyond a reasonable doubt. Because there was more than enough evidence for the jury to convict Andrade, he and his family (and any other supporters he may have) can complain that the jury should have believed his evidence, not the prosecution’s, for as long and as vehemently as they want. In the end, however, it simply doesn’t matter.

How do I know all this and why am I so confident in my conclusions? As I explained in my previous post, I’m an attorney. Because of the nature of my practice, for the last 12 years, I have done nothing but pour through the record of trials like this one on behalf of defendants like Andrade looking for claims that their convictions were improper, for example, because there wasn’t enough evidence. Every single time during those 12 years that I have argued that the jury made a mistake because there wasn’t enough evidence, the appeals court has “schooled” me by showing me that, regardless of how I think the evidence should have been interpreted, it was perfectly reasonable for the jury to see it differently and convict my clients. The bottom line from that experience is that, where the evidence is disputed and the jury chooses to believe the prosecution, the defendant always loses.

Because of all of these factors, there’s no chance Andrade’s convictions will be overturned on appeal for lack of evidence and any concern about the fact that the jury only took 2 hours to convict him won’t even be a footnote when the Colorado courts reject his appeal.

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Attorney and law professor Jillian Weiss has posted another interesting article over on Bilerico.  This one concerns the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which held that laws making sex between consenting adults of the same sex a crime (aka “sodomy” laws) are unconstitutional, and whether and how that decision can be used to, in her words, “loosen the chokehold that the law has on transgender people.”  One of the commenters there asked if she could write another article on the definition of “sex” in Title VII and EEO policies banning “sex” discrimination, as applied to trans people.  Rather than wait for Dr. Weiss’ response, I decided to weigh in on this topic.  Here is my response:

E.T., I’ll take a stab at responding to your second question regarding the definition of “sex.”

It’s important to distinguish 2 different situations in which the legal definition of the word “sex” impacts trans people: first, laws that ban discrimination on the basis of sex in employment, housing, public accommodations, etc.; and second, the right of trans people to access legal privileges, e.g., marriage (in most states), that are restricted on the basis of a person’s sex. The second group could also encompass the right of trans people to use services or facilities, e.g., public restrooms, access to which is restricted on the basis of a person’s sex. (I say “could encompass” since, in most places, contrary to public opinion, there are no laws that say a man can’t use a women’s restroom, or vice versa. In other words, sex segregation of restrooms is largely a matter of social convention, not law, although trespassing and disturbing the peace laws are sometimes used (unjustly, in my opinion) to enforce those conventions.)

Where access to a legal privilege, service or facility is restricted based on sex, determining a trans person’s right of access requires a determination of what “sex” the person is, since sex-based segregation is based on a strict binary division between male or female, where no ambiguity is allowed. Answering that question, in turn, raises myriad complicated questions regarding how a person’s sex is determined. For example, is it strictly biological or chromosomal, or does it include a person’s gender identity or expression? If biological, do we look only at the configuration of the person’s genitals or genes at birth, or do we, also or instead, give effect to the person’s genital configuration after surgery? Can a person’s sex be legally changed? And what do we do about intersex people whose chromosomes, genitalia, internal organs, etc. are not clearly male or female?

Most, but not all, of the cases addressing this question in the context of the right of a trans person to marry have ignored the effects of surgery and attempts to “legally” change the person’s sex by amending her/his birth certificate. In other words, they were decided based on the basic premise espoused by many of our opponents that “once a man, always a man,” and vice versa.

Fortunately, most, but not all, of the recent cases involving the definition of “sex” for purposes of determining a trans person’s right to protection under laws banning sex discrimination have avoided this difficulty. They do so by saying that it doesn’t matter what sex a person is, i.e., whether the person is male, female, both or neither. Instead, what matters is whether the person was treated differently because of some sex-related characteristic. This trend started with the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins in 1988. In that case, the court said that discrimination based on sex under Title VII, the federal law banning sex, race and other types of discrimination in employment, includes being treated differently because the person doesn’t conform to sex-based stereotypes regarding dress, mannerisms, etc. Thus, the Supreme Court held that it was illegal for Price Waterhouse to refuse to make Ann Hopkins a partner basically because she was too “butch.” (The court, of course, didn’t use that term and there is no indication that I know of that Ms. Hopkins was lesbian.)

This trend, IMO, reached its logical endpoint with last fall’s federal trial court decision in Diane Schroer’s Title VII sex discrimination suit against the Library of Congress. Schroer v. Billington. In that case, the court found that the Library violated Title VII by discriminating against Schroer because she was changing her sex, not because she was male, female, both or neither.

Thus, in the context of discrimination laws or policies that you were talking about, it isn’t necessary to define a person’s sex as male or female, etc. It is only necessary to tackle that question when the trans person is seeking access to a legal privilege like marriage, or a service or facility, like a restroom, where access is restricted based on whether the person is male or female. The lack of a coherent and consistent definition of a person’s sex and/or methods for legally changing one’s sex that are actually recognized by the courts are the source of most, if not, all, of the ongoing confusion regarding the rights of trans people.

In the case of marriage, I think the best solution to that confusion is to remove all sex or gender based restrictions, in other words, to legalize same sex marriage. That’s why the battle for marriage equality is important to the trans community, contrary to the opinions of some. With respect to access to restrooms and other sex-segregated facilities, I think the best solution is to provide for personal privacy, e.g., the stalls in women’s restrooms, and allow access based on the person’s gender expression. In other words, if you’re presenting as a woman, you use a women’s restroom, and vice versa, regardless of your physical sex. Any other solution quickly becomes too complex and confusing to administer and enforce. Implementing that solution will, however, require the American public to just “get over” their hang-ups about the sex or gender of the person in the stall next to them.

UPDATE

Some of you may also be interested in this post from last year on how laws that ban sex discrimination in access to public accommodations relate to the right of trans people to public restrooms.

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eQualityGiving is proposing a bill to correct the unequal treatment of LGBT people in all areas of federal law – employment, housing and public accommodations discrimination, the American with Disabilities Act, DOMA, DADT, etc. Read about (and download) it here. Whether or not a comprehensive bill like this is ever introduced or enacted, I think it serves a useful purpose in uniting the debate on the many ways in which we are treated unequally and helping to ensure that the changes we seek are consistent.

What do you think?

******************************
FYI, here is eQualityGiving’s email announcing its proposal:

INTRODUCING THE EQUALITY & RELIGIOUS FREEDOM ACT

Dear Abigail,

What if we asked for legal equality all at once in one comprehensive omnibus bill?

THE BLUEPRINT FOR LGBT EQUALITY

What would a bill for total legal equality look like? We asked attorney Karen Doering, a very experienced and savvy civil rights attorney, to prepare such a bill. It was presented and discussed on our listserv, which includes many of the major donors to the movement and the executive directors of all the major LGBTQ organizations.

We believe now is the time to introduce an omnibus bill.

We have prepared a section of our website with all the information about the proposed bill:
www.eQualityGiving.org/Blueprint-for-LGBT-Equality

There you can read the actual text of the bill and read the answers to the frequently asked questions. There is also a section reviewing the status of the incremental bills currently proposed. You can also post your comments directly on the site.

WHAT THE OMNIBUS BILL COVERS

1. Employment
2. Housing
3. Public accommodation
4. Public facilities
5. Credit
6. Federally funded programs and activities
7. Education
8. Disability
9. Civil marriage
10. Hate crimes
11. Armed forces
12. Immigration

INCREMENTALISM vs. OMNIBUS BILL

Some people think that an omnibus bill is too unrealistic to pursue because Congress functions in a very complex way. But the country voted for a new leader who promised major changes to the way our government functions.

We have tried incrementalism at the federal level for LGBT equality for 35 years without any results. Now is the best time to capitalize on the energy of new leadership and propose what we think change looks like.

As the Rev. Dr. Martin Luther King said:

“A right delayed is a right denied.”

Asking for an omnibus equality bill does not mean that we need to pursue it at the expense of incremental bills. Both approaches can be used simultaneously, and we encourage this strategy.

An Omnibus bill has two major benefits:

> It points out in clear legal terms all the areas in which we are not treated equally under the law. If we ask for less, we will certainly get less.

> An Omnibus bill provides a standard to which incremental victories can be compared. We may discover, for example, that even the trans-inclusive ENDA introduced in March 2007 still did not provide the same level of protections in employment that other groups receive.

SAY WHAT YOU THINK

If you believe that, in addition to incremental bills, we should also push for an Omnibus Equality Bill, tell your member of Congress, talk to your friends, and write about it on the site. All the info about the bill is here:

www.eQualityGiving.org/Blueprint-for-LGBT-Equality

For many months we have been preparing this Omnibus Equality Bill. Join us to push for it, so that we can achieve LGBT legal equality faster.

Best regards,

Juan Ahonen-Jover, Ph.D.
Ken Ahonen-Jover, M.D.
Founders, eQualityGiving

P.S. Please forward this alert to others who could be interested.

********************************

UPDATE – 3/24/09

Recently, there has been some discussion in the blogosphere about the impact of what some believe to be a narrower definition of “gender identity” in the federal Hate Crimes Bill (HR1592) from 2007, when compared to the definition of that term in the gender-inclusive ENDA (HR2015) from that same year.  (The Hate Crimes Bill defined “gender identity” as “actual or perceived gender-related characteristics,” while the inclusive version of ENDA defines it to mean “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.  To learn about this discussion, read Kathy Padilla’s recent posts on The Bilerico Project here and here.)  In a comment I left on eQualityGiving’s website, I pointed out this difference and the risk of unnecessary litigation over whether the definitions are intended to have different meanings.  In response, eQualityGiving has amended their Omnibus Bill to include the same definition in all its provisions, including hate crimes.  The revised version of the bill, dated March 21, 2009, is available for download on eQualityGiving’s website.

In my original post, I failed to note one huge advantage eQualityGiving’s Omnibus Bill has over even the inclusive version of ENDA.  Rather than enacting a separate statute with a broader exemption for religious organizations and other provisions that differ from existing civil rights law, eQualityGiving’s bill would simply amend Title VII of the Civil Rights Act of 1964 (the federal law banning sex, race and other discrimination in employment) by adding “sexual orientation” and “gender identity” to its terms.  As Karen Doering, the drafter of the Omnibus Bill, explains on the FAQ page for the bill, this approach has substantial advantages over ENDA.  Having worked as an investigator of discrimination claims under Title VII and being familiar with its terms and, especially, how it has been interpreted by the courts, I see this as a major improvement over current proposals.

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UPDATE: Once more, it is Martin Luther King, Jr. Day, the day on which we honor the memory of a great man who has proved so inspiring to so many of us.  I, too, have a dream and I pray each day for the day we can each can celebrate our diversity and our equality throughout this country and the world.

I originally posted this one year ago today [i.e., January 2008] on my old Yahoo 360 blog, while the wound from transgender people being excluded from ENDA by HRC and Barney Frank was very raw (it still is).

Today is the day in the United States that we celebrate the dream of equality and freedom that the Rev. Martin Luther, Jr. inspired in this country and, I hope, in the world. There is not much that any of us can add to his inspiring words, so I simply invite all of you to take 17 1/2 minutes of your day to listen to his words and to share his dream. (The video and the direct link to YouTube are below.) As you do so, you might want to note as I did, the following words, which seem so appropriate today as we struggle for recognition of equal rights for all transgender people against the argument that we need to wait our turn, that incrementalism is the path to freedom and justice for us:

“We have also come to this hallowed spot to remind America of the fierce urgency of Now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.” (Beginning @ 5:15 on the video below)

I followed up the next day with another post on Martin Luther King’s opposition to incrementalism and how he convinced LBJ that that was not the right approach:

As I noted yesterday, in his “I Have a Dream” speech, Martin Luther King, Jr. opposed applying “the tranquilizing drug of gradualism” to the civil rights struggle of that time.

More information about Dr. King’s opposition to that strategy came out last night on Bill Moyers’ Journal on PBS. During that program, Moyers recounted a previously unrevealed conversation between Dr. King and Lyndon Johnson that Moyers was privy to as a young presidential aide. (You can watch or read the transcript of this program here: http://www.pbs.org/moyers/journal/01182008/watch4.html.) Initially, LBJ tried to convince Dr. King to quell the demonstrations and other unrest that he and others were encouraging, in order to help Johnson convince the white supremacists in Congress to approve the Civil Rights Act of 1964. In keeping with his words at the Lincoln Memorial, King refused, saying that “his people had already waited too long. He talked about the murders and lynchings, the churches set on fire, children brutalized, the law defied, men and women humiliated, their lives exhausted, their hearts broken.” After listening to King, Johnson changed his mind and told King to “keep doing what you’re doing, and make it possible for me to do the right thing.” King did as asked, LBJ used his legendary arm-twisting skills in the Senate and one of the most important pieces of legislation of the last century, and one that today provides the only glimmer of hope for protection against employment discrimination for most trans women and men in the U.S., was passed.

So, Lyndon Johnson insisted on doing what was right at the time, rather than what he thought was practical or pragmatic given the resistance he faced. As civil rights pioneer and U.S. House of Representatives member John Lewis said on the floor of the House during the ENDA debate last November [2007], “It is always the right time to do the right thing.” Johnson, King and many others knew this in 1963 and 1964. Why is it that today so many people believe that this principle doesn’t apply to our own struggle for equal rights?

Today is still the time to do the right thing!  Perhaps, with Barack Obama’s inauguration tomorrow as our next President, we will finally begin to achieve the civil rights, the human rights, that we all deserve.

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My friend Michael is one of the organizers of, and the webmaster for, the Central Arizona Gender Alliance.  Recently, he asked me to write a profile of myself to be posted as the feature story on the CAGA website for January 2009.  Rather than start from scratch, I adapted my “Who I Am and Why I Do What I Do” post.  Since I wrote that post, however, my involvement in the issues affecting our community has increased.  That led to the following comments that I added to the story that will appear on the CAGA site, which I wanted to share here.

While I have this chance, I also want to say some things about activism. The trans community in this country is small, and the number of those willing to speak out on the issues that affect us is even smaller. That means that each one of us is vital if we ever want the public’s attitude toward us, and the discrimination, hate and bigotry that we face, to change. It also means that one person can have a significant impact on the direction that our community takes in addressing the issues that we face.

It sounds clichéd, but I have learned through experience the truth of the statement that if I don’t do it, if I don’t step forward and say “this is wrong and must change,” if I don’t propose solutions and work to make them a reality, then who will? The answer is no one. It happens every day. We see or hear about something that we know is wrong – another trans woman shot in Memphis, another trans woman homeless because she can’t get a job – and we stand by in silence and do nothing. Those things will never change if you don’t work to change them, even if all you can do is to say “this is wrong.” Keep in mind too that, although it is important that we in the trans community know about these injustices, it is our families and friends, our lesbian, gay and bisexual sisters and brothers, and the general public that need to hear our voices. So many people truly have no idea about the mistreatment that we suffer, how widespread it is and how few protections exist to ensure that most basic of human rights: the right to live lives of peace and dignity. Those are the people we need to speak to, because it is their sense of justice and morality that we need to invoke if we ever want things to change.

Is it scary to step forward and say, “I am trans, this is wrong and it must stop”? Of course, it is. But there are also rich rewards in showing the world that we are proud of who we are, that we refuse to cower in the darkness of ignorance and hate any longer, and in knowing that we are helping to change the world, not just for ourselves, but for people everywhere. Join me! Today do just one thing to make the world a better place to live, whether that’s giving a hug to a friend you know is having a hard time, writing a letter to the editor or simply telling your story. But, most of all, Be Who You Are!!

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The discussion on various Yahoo groups that I belong to regarding the impact of the same-sex marriage bans just enacted in Arizona, California and Florida on marriages involving one or more transgender partner continues. I’ve previously posted about those issues here and here.  This is my most recent addition to that discussion:

I agree with the basics of your description [of the law concerning marriages in which one partner is trans], but want to clarify that what happens in most of these cases is that the couple is able to get a marriage license and marry simply because they appear to be a typical male/female couple. Thus, although they are allowed to marry, they are “legally” married only in the sense that no one has challenged it yet. Many couples involving a trans partner may marry, live out their lives and die without anyone ever challenging the validity of their marriage, and thus escape the uncertainty I’ve been talking about. But there’s no way to predict which couples will be that fortunate and which ones will face the horror of being told years later that they were never legally married.

As for the “trans lesbian” who married her partner that you mentioned, I assume that you are referring to cases where a MTF transsexual marries a cisgender female, before the trans partner has changed her name or sex marker on any of her identification documents. I know of several such cases. Again, as long as the couple appears to be a male/female couple to whatever clerk issues the marriage license and to whatever judge or other authority marries them, their marriage is treated as a legal, opposite-sex marriage, but may, or may not, in fact be legal if it is ever challenged.

The basic rule is that a marriage that was legal when and where it was entered into continues to be valid until dissolved by divorce. The federal Defense of Marriage Act (DOMA), however, makes an exception to that rule for same-sex marriages by allowing states where such marriages are banned to refuse to recognize a legal same-sex marriage entered into in another state or country. DOMA should not apply, however, to a marriage between a trans woman who was legally male at the time and a cisgender female since, at the time it is entered into, it is a legal opposite-sex marriage. The same applies to a trans man who is legally female at the time he marries a cisgender male. Such marriages should, therefore, be safe from challenge even after the trans partner legally changes her/his name and sex. A marriage between a man and woman, one of whom realizes that she/he is trans after the marriage and then transitions, should also be legal, since the only difference between that situation and the ones I just discussed is simply a matter of timing.

BUT, and this is a big “but,” I know of no cases anywhere addressing whether a marriage in which one partner transitions after marriage continues to be valid. Everything I know says it should be, but stranger things have happened, especially when it comes to trans people.

Finally, just to clarify, the majority of courts that have faced the issue have said that a marriage between a trans woman (i.e., an MTF transsexual) who is “legally” female at the time of marriage and a cisgender man (or vice versa) is INVALID as an illegal, same-sex marriage, despite any change in identification documents, birth certificates, or whatever.

The bottom line is to get married before the trans partner has legally changed her/his sex if you can. If not, once married, see an attorney to draft wills, medical directives, child adoptions, etc. to legally create as many of the benefits of marriage as possible, in case the marriage is declared invalid at some future date. (In fact, it wouldn’t be a bad idea to do those things even when the couple marries while they are still legally of different sexes, just in case.) In other words, do the exact same things that other “same-sex” couples have to do to create the semblance of a legally recognized marriage. That’s why marriage equality is just as much an issue for trans people as it is for gays, lesbians and bisexuals.

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