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On Marriage, Family, and Good Public Policy

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On Marriage, Family, and Good Public Policy Michigan Journal of Gender & Law Volume 17 Issue 1 2010 Defining Sex: On Marriage, amilyF , and Good Public Policy Mark Strasser Capital University Law School Follow this and additional works at: https://repository.law.umich.edu/mjgl Part of the Law and Gender Commons, Legislation Commons, Sexuality and the Law Commons, and the State and Local Government Law Commons Recommended Citation Mark Strasser, Defining Sex: On Marriage, amilyF , and Good Public Policy, 17 MICH. J. GENDER & L. 57 (2010). Available at: https://repository.law.umich.edu/mjgl/vol17/iss1/4 This Symposium Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Gender & Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. DEFINING SEX: ON MARRIAGE, FAMILY, AND GOOD PUBLIC POLICY cmark Strasser* INTRODUCTION -57 1. ON BIRTH CERTIFICATES AND QUALIFICATIONS FOR MARRIAGE -58 A. Modifying Birth Certificates.- 5 9 B. Birth Certificates and Marriage -63 C. DissolutionsofMarriages Where One of the Parties Is Transgendered - 73 D. On Custody and Visitation - 80 CONCLUSION -81 INTRODUCTION Thomas Beatie became the subject of national attention after an- nouncing in The Advocate that he was pregnant' and after being interviewed on national television by both Oprah Winfrey' and Barbara Walters.' Beatie became known as the first man to give birth to a baby' * Trustees Professor of Law, Capital University Law School, Columbus, Ohio. 1. Jeni Christensen, Trans Positions, ADVOCATE: NAT'L GAY & LESBIAN NEWSMAGAZINE 32, May 20, 2008, available at 2008 WLNR 11187018 ("Thomas Beatie first told the world that he was pregnant in The Advocate in March"). 2. See ABC Good Morning America (ABC television broadcast July 23, 2008), available at 2008 WLNR 13746105. Thomas Beatie first made headlines five months ago when news of his pregnancy first became public. Born Tracy Lagondino, he began his transition at 24, taking testosterone and having his breasts surgically removed, but still hoping to one day have a child, Thomas kept his female reproductive organs. Af- ter meeting wife Nancy who couldn't conceive, the couple decided to inseminate Thomas with donor sperm. Since then, the Bearies have faced a whirlwind of criti- cism for their decision, criticism they addressed with Oprah Winfrey. 3. See ABC News Now Special Report (ABC television broadcast Dec. 12, 2008), avail- able at 2008 WLNR 23413877. 4. Ellen Goodman, Daddy becomes a mother, father, TULSA WORLD, July 12, 2008, at A17, available at 2008 WLNR 13125209 ("For those of you who do not watch Oprah or read tabloids, Beatie is 'The World's First Pregnant Man.'"). 57 58 58MICHIGAN JOURNAL OF GENDER 6- LAW [Vl175[Vol. 17:57 and has since given birth to a second child! He and his wife and chil- dren live in Oregon.6 Transgendered individuals and their families face legal risks that most families do not, at least in part, because state laws are often unclear about whether or under what conditions transgendered individuals are permitted to marry the individuals whom they love. Challenges to the validity of marriages involving the transgendered may arise under a vari- ety of circumstances, ranging from cases in which individuals may have hidden or may not even have known that they were transgendered until after their marriages, to cases in which the individuals had already tran- sitioned and had explained their personal histories to their partners before they were married. Where such marriages are contested, a num- ber of issues may have to be resolved including the validity of the marriage, parental status, and who should have custody of or visitation with any of the children raised by the parties. This Article focuses on the spousal and parent-child relationships of transgendered individuals. Regrettably, much of the law is still unclear. While most states specifyr the conditions under which a transgendered individual can have his or her birth certificate modified to reflect his or her self-identified sex, states have been much less clear about how local marriage laws apply to transgendered individuals. In many states, there is no express policy with respect to whether a transgendered person will only be permitted to marry someone of the opposite sex of his or her self-identified sex or, instead, someone of the opposite sex of his or her birth sex. Current law in most states is intolerable, either because it fails to take into account the actual lives of the transgendered, or because it is simply indeterminate. 1. ON BIRTH CERTIFICATES AND QUALIFICATIONS FOR MARRIAGE Almost all states permit a transgendered individual to have his or her birth certificate changed, as long as certain conditions have been met. However, there are at least two reasons why the general willingness of states to permit birth certificate modifications does not settle issues related to familial status. First, states vary with respect to what is re- 5. Baby No. 2 born to 'man, HERALD-SUN (Melbourne), June 12, 2009, at 29, available at 2009 WLNR 11167537 ("Thomas Bearie, the world's first pregnant man, has given birth to his second child."). 6. Kristi Turnquist, Oh, what a glitzy year we had!' PORTLAND OREGONIAN, Dec. 30, 2008, available at 2008 WLNR 24991737 ("Bearie and his wife, Nancy, of Bend, 20101 DEFINING SEX 59 quired in order for a birth certificate to be changed, which means that what one state requires for modification might not suffice in a different state. Second, even where a modification has been permitted, the state may only recognize the modified birth certificate as establishing the in- dividual's sex for certain legal purposes-a transgendered individual might be considered male for purposes of identification on a birth cer- tificate or driver's license but be considered female for purposes of determining the sex of potential marriage partners. To add insult to in- jury, the state's policy with respect to family relationships may not be established by statute and may instead have to be established in the courts in the context of an individual case, which creates the potential for harm to both adults and children and may make planning difficult if not impossible for those individuals wishing to do what is best for their families. A. Modijy5ing Birth Certificates Currently, only Ohio, Idaho, and Tennessee do not permit trans- gendered individuals to change their birth certificates to reflect their self-identified sex.7 Other states permit changes as long as certain medi- cal procedures have taken place," although there is no agreement about which procedures are required in order for such changes to be made.' This raises the distinct possibility that transgendered individuals who had undergone certain surgical procedures would qualify for birth 7. Briana Lynn Morgan, Note, The Use of Rules and Standards to Define a Transsexual's Sex for the Purpose ofMarriage:A n A rgument for a Hybrid App roach, 5 5 HAST INGS L.J. 1329, 1336 (2004) ("All states but three-Idaho, Tennessee, and Ohio-allow trans- sexuals to change their sex on their birth certificates.") 8. Dean Spade, Documenting Gender, 59 HASTINGs L.J. 731, 768 (2008) ("Every state allowing change of sex on a birth certificate requires evidence of surgery to warrant a gender reclassification, though they vary in what proof is required and in the specific- ity of the evidentiary requirements."); Alice Newlin, Should a Trip from Illinois to Tennessee Change a Woman into a Man?: Proposalfor a Uniform Interstate Sex Reas- signment Recognition Act, 17 COLIIM. J. GENDER & L. 461, 481 (2008) ("Of the twenty-five jurisdictions to enact statutes allowing transgender people to modify birth records, all but a handful require proof that the individual seeking modification has undergone some form of sex reassignment surgery."). 9. Shana Brown, Sex Changes and "Opposite-Sex" Marriage: Applying the Full Faith and Credit Clause to Compel Interstate Recognition of Transgendered Persons 'A mended Legazl Sex for Marital Purposes, 38 SAN DIEGO L. Ray. 1113, 1129 (200 1) ("The circum- stanices under which transsexuals and intersexuals may legally change the sex designated on their birth certificates vary from state to state."). 60 60MICHIGAN JOURNAL OF GENDER 6- LAW [Vol.[V.175 17:57 certificate modifications in some jurisdictions but not others.'0 Indeed, the requirements within the state of New York differ depending upon where one lives, and a particular procedure that would suffice in one part of the state for purposes of meeting the birth certificate modifica- tion requirement would not suffice in another." That an individual would qualifyr for a birth certificate modifica- tion in one jurisdiction but not in another is troubling for a few different reasons. First, given all of the difficulties that can arise in our current terror-conscious society for someone whose physical appearance is not in accord with that person's official sex, precluding individuals from having their documents reflect their appearance and self-identified sex seems cruel.'12 Second, it is hard to understand what asserted state interests could justify the differing treatments that individuals receive depending upon where they happen to have been born-an individual born in one jurisdiction is permitted to have his or her birth certificate changed, but an individual born in a different jurisdiction is not, even though both individuals have undergone identical surgical procedures. One response to this confusing state of affairs is simply to assert that this is a price of being in a federal system where different states 10. See Spade, supra note 8, at 736 (noting that New York and California have differing standards).
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