Does the New York Marriage Equality Bill Include Intersex People?

To me, the answer is quite clearly “Yes!” However, since some people apparently disagree, I’ll go ahead and explain how I reach that conclusion.

In thinking about laws legalizing same-sex marriage, it’s always been my understanding that the goal is to make the sex or gender of the partners irrelevant, in other words, to allow anyone to marry anyone else without regard to what sex or gender they are. The text of the New York Marriage Equality Act passed and signed into law yesterday reflects this principle.

The Act states that its purpose is to “formally recognize[] otherwise-valid marriages without regard to whether the parties are of the same or different sex.” In addition, the legislature’s intent in passing the act is to ensure “that all provisions of law which utilize gender-specific terms in reference to the parties to a marriage … be construed in a gender-neutral manner….” (Sec. 2.)  To carry out these purposes, the operative provisions of the Act (Sec. 3) state:

A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.

No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage … shall differ based on the parties to the marriage being or having been of the same sex[,] rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all sources of law.

It’s true that the phrase “the same or different sex” could be interpreted as referring only to the two binary sexes, i.e., only to male and female. Any such interpretation, however, is contradicted by the statement that “all gender-specific language or terms shall be construed in a gender-neutral manner.” “Gender-neutral” means “without gender,” not just male or female, or masculine or feminine.  The reference to parties who are “of the same sex[,] rather than a different sex,” rather than the different, or opposite, sex, also contradicts any claim that the Act was only intended to allow people who are either male or female to marry and deny that right to intersex people who may be neither or both sexes.

Finally, as the Supreme Court declared in Loving v. Virginia, the right to marry is a fundamental right. Therefore, any statute barring intersex people from marrying would likely be unconstitutional. In keeping with the separation of powers between the three branches of government, courts always attempt to carry out the legislature’s will by avoiding any interpretation of a statute that would render it unconstitutional. Under this principle, even if the language of the New York Marriage Equality Act could be interpreted as excluding intersex people, any court addressing that issue will strive to avoid finding the Act to be unconstitutional by adopting the equally reasonable interpretation that the legislature intended that everyone should have the right to marry anyone, regardless of their sex or gender (or any combination or lack thereof).

Thus, given both the language of the Act, and the potential unconstitutionality of any other interpretation, intersex people can be confident that, like those who fall within the sex/gender binary, they can marry whoever they want in the State of New York without regard to sex or gender.

NOTES

1. In most cases, when one section of a statute is found to be unconstitutional, the courts will “sever” that provision and allow the remainder of the statute to go into effect.  However, the religious exemptions added to the Act on Friday, which won over the three Republican votes needed to pass the Act in the Senate, also included a “poison pill” provision to discourage anyone from challenging those exemptions. Section 3 of those amendments states that, if any part of the Act is held to be unconstitutional, the entire statute is invalid. Given this additional incentive, courts are sure to do everything possible to ensure that the entire Act is interpreted to be constitutional, including interpreting it to give intersex people the same right to marry as everyone else.
2. I find it interesting that whoever drafted the Act was evidently aware of questions regarding the validity of an otherwise valid opposite-sex marriage when one of the partners transitions from male to female, or female to male.  It appears that the statement that no marriage shall be treated differently “based on the parties to the marriage … having been of the same sex[,] rather than a different sex” is designed specifically to remove any lingering doubts about that question.

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eQualityGiving’s Omnibus Equality Bill Proposal

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?

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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.

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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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Still More on Transsexual Marriage Rights

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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More on Transsexual Marriage Rights

For those of you who didn’t see it there, this is my response to a comment over on TranscendGender to my post, also posted here, on the effect of the proposed amendment to the Arizona Constitution banning same-sex marriage on transsexual marriages:

Liz, the best chart I know of on LGBT rights in the U.S. is EqualityGiving’s State of Equality Scorecard, which includes same sex marriage. It does not, however, deal with the question of the validity of marriages by transsexuals, whether they transition before or after marriage. Lambda Legal, NCLR and NCTE may have charts or other information specific to transsexuals.

Of the states you listed, only Texas and, I believe, Ohio, have addressed the validity of marriages involving transsexuals. In both cases, however, the dispute involved trans women who had fully transitioned, had SRS and obtained new or amended birth certificates showing them as female before they married (in the Texas case) or attempted to marry (in the Ohio case). Both cases, as well as the similar decision in Kansas, essentially said, “once a man, always a man,” regardless of what you might have done since birth. Under those decisions, an opposite-sex marriage in which one partner transitions after marriage theoretically would continue to be valid. As I said, however, as far as I know, there has never been a decision in the U.S. specifically holding that such marriages are still valid. It would seem logical that, if you’re considered to be male (or female) despite surgery, transitioning and changing your birth certificate, then it should be legal to marry a cissexual female (or male). There are some, however, who essentially argue that transsexuals are both sexes and, therefore, can’t legally marry anyone. Some foreign countries, like the U.K., have addressed the risk that permitting transsexuals to legally change their sex will result in illegal same-sex marriage by prohibiting married people from changing their sex for legal purposes, unless they first get divorced. I have one post-op trans woman friend in England who remains legally male because she and her wife want to stay married.

I don’t know of any decision in Kentucky regarding the validity of marriages involving transsexuals, whether they transition before or after marriage.

In New Jersey, a court held in 1976 that the marriage between a cissexual male and a trans woman who had legally changed her sex before marriage was valid. There is no case there, however, saying that a marriage in which one of the partners transitions after marriage is still valid. That question is unlikely to arise, since New Jersey allows civil unions that are supposed to have all of the same rights and responsibilities as marriages. (New Jersey is currently studying whether the two are truly equal, as the legislature intended. If not, they are likely to change their laws to permit same-sex marriage, as is now the law in Massachusetts and California. Once same-sex marriage is legal, this issue, of course, goes away.)

Like New Jersey, Connecticut and Vermont allow same-sex civil unions. I know of no decisions in either state regarding the validity of marriages involving transsexuals, whether they transition before or after marriage. Thus, the quotation in the NY Times article [on existing marriages where one partner transitions that Liz linked to] stating that Christine Littleton could legally “marry” a man in Connecticut or Vermont is inaccurate. While she could enter into a civil union with a man in those states, there is no reason to believe she could actually marry a man there.

The whole picture gets even more complicated if you consider the fact that three states (Ohio, Tennessee and Idaho, where I was born) do not permit the change of a person’s sex on their birth certificate, whether they have had SRS or not. The State of Arizona, however, has already recognized me as female on my driver’s license. Would that designation control if I wanted to get married here? Nobody knows. Of course, I could probably walk into a courthouse, except the one here in Prescott where they all know me, show my driver’s license and obtain a license to marry a cissexual man. That’s no guarantee, however, that the marriage is actually valid. A cissexual man and a trans woman, who still had an “M” on her driver’s license, or another man (the news reports are unclear regarding whether the second partner was gay or trans) recently managed to do just that and barely escaped prosecution for providing false information on their marriage license application.

Then, consider the fact that, even though I can’t change my birth certificate after SRS, I can change my sex to female on both my passport and my Social Security records with proof of surgery. If I attempt to marry a man here, or anywhere else where same sex marriage is illegal, will the courts look to those documents, rather than my birth certificate, to determine if my marriage is valid? Again, nobody knows.

The bottom line is that the marriage rights of transsexuals are a mess, contrary to the beliefs of some gays and lesbians, who occasionally express resentment at the (mistaken) notion that we can marry persons of the same birth sex with impunity. The only fair, as well as the simplest, solution to these problems for both trans and non-trans people is to allow same-sex marriages, not civil unions, without restriction based on sex or gender. Until that happens, or there’s a hell of a lot of successful litigation in many, many states, trans people will continue to have good reason to worry about the validity of their marriages, whether they transition before or after exchanging vows with the partner of their choice.

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Will the proposed amendment to Arizona’s Constitution to ban same-sex marriage change the treatment of existing marriages in which one partner transitions?

Recently, on one of the Arizona trans-related Yahoo groups that I belong to, one member stated her belief that the proposed constitutional amendment to ban same-sex marriages in Arizona, known as Prop 102, would change the law so that “[e]xisting marriages involving a transsexual could easily be nullified.” (The proposed amendment states, “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”) Here is my response:

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