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.
Living My Life 
Would you care to site the cases in which you claim a “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.”
It might also interest you that some states have passed legislation to change birth certificates so that post op transsexuals could specifically enter into hetrosexual marriages…as far back as 1968.
Click to access 8.pdf
If I identify as a woman and am attracted to men, does that make me a homosexual? If I found the man of my dreams, could I be legally married as husband and wife? But if I identify as a woman and fall in love with the woman of my dreams, am I hetrosexual or gay? Could we be legally married? Or am I not allowed… because I am what I am… Lynn T.
SA-ET,
Courts in Texas (Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999), Kansas (In the Matter of the Estate of Gardiner, 42 P.3d 120 (Kan. 2002)), Ohio (In re Declaratory Relief for Ladrach, 513 N.E. 2d 828 (Ohio Prob. 1987), and Florida (Kantaras v. Kantaras, 2004 WL 1645849, (Fla. Dist. Ct. App. 2004)) have held that neither SRS nor an amendment to the person’s sex/gender on her/his birth certificate changes the person’s sex for purposes of marriage. Thus, in Texas, Kansas and Ohio, marriages between post-op MTF transsexuals and men designated male at birth were held to be illegal same sex marriages. The Florida case involved an FTM transsexual married to a woman designated female at birth, but reached the same conclusion.
Only one appellate level court has held that a post-op MTF transsexual was legally female for purposes of marriage, and that her marriage to a man designated male at birth was valid. M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204 (1976). The trans woman in that case had not been able to amend her birth certificate, but the court found that fact to be of no consequence to its decision. A Orange County, California trial court reached a similar conclusion. Vecchione v. Vechione, Civ. No 96D003769, reported in L.A. DAILY J., Nov. 26, 1997, at 1. However, because that case was not appealed, there is not reported decision. I am also aware of a case in which an immigration judge ruled a marriage between a man designated male at birth who was a U.S. citizen and a post-op MTF transsexual from Spain (I think) was valid for purposes of their application for a residency permit for the woman as the man’s spouse. I was not, however, able to locate that case in the time I had for this comment. Thus, even if you count the unreported trial-level decisions, we still have four courts who have held that SRS and a change of the sex/gender designator on a birth certificate does not change the person’s sex for purpose of marriage, and only three who have reached the opposite. (I am not counting any of the lower court decisions in the Texas, Kansas, Ohio and Florida cases that ruled that the marriages were valid, since those decisions were overturned.)
If you would like more information, you may want to review Greenberg, J., When Is Same-Sex Marriage Legal: Full Faith and Credit and Sex Determination, 38 Creighton Law Review ___ (Jan. 2005), available at http://ssrn.com/abstract=598941.
For all the battles being waged, my situation is similar to the legal male applied for marriage certificate with a cisgendered female and after the wedding as two women, I changed my name through the courts system. At tax time we filed as Kay and Sarah married with federal taxes and no problem. The hold up came with State tax returns, since we filed as a married couple with federal, our state tax return was held until I submitted copies of the court documents changing my name.
I know this is taking advantage of a loop hole, but you do what you have to do.
Sarahjane, there is no shame in loving who you love and marrying her if you’re able. Congratulations to you both!