Who Gets to Decide?

Today is a very historic day, one I’ve been waiting for my entire life.  Today the Supreme Court of the United States hears oral arguments regarding marriage equality.  This is personal, and the personal is political.  It matters to the Transsexual communities, both AGPs and HSTSs, because now our marriages will either be validated or put into jeopardy.

To understand, we need to review a little history.

When transsexual surgery and post-op legal recognition in the US first began, it was only for single people.  In fact, the first transsexual person to be recognized in her new gender was likely Christine Jorgensen, who as a single person was able to get her passport amended after she had SRS overseas in 1953, so that she might return as legally female.  Since then, it has been State Department policy to recognize a legal sex post-operatively.  But what of married people?

When SRS was first offered legally in the US, at a limited number of medical clinics, it was no secret that they struggled to understand who was a valid candidate.  Most of the clinics refused to offer services to those that they knew to be heterosexual transvestites.  And they used a current status of being married to the opposite biological sex as one such indicator.  Further, these clinics were loath to artificially create “homosexuals” out of straight people.  Some of this was because of internalized heteronormative values, some of it was genuine fear of legal liability.  After all, if one performs what was then considered “experimental” SRS on a husband, would not the wife have legal grounds to sue due to estrangement and denial of conjugal rights?  Since same sex marriages were not valid, would not their marriage also be adjudicated invalid if their husband was now legally female?  Or would the courts refuse to recognize the change of sex and thus enforce the marriage?  The clinics wanted nothing to do with this potential legal mess, so refused to perform SRS on married people.  So, many candidates for SRS back in the ’70s got divorced, even when they remained on good terms with their female partners, just to secure SRS.

A bit of personal history.  Back to 1976.  I remember well the irony of sitting in a room full of AGP clients at the Stanford Gender Dysphoria Clinic, listening to a lecture from a lawyer telling the room about how to ensure that their future marriages, which he presumed to be with men when we became post-op, would be “valid”.  Truly, I was the ONLY one in that room that cared for his advice!  The rest wanted to know how to KEEP their present marriages to women valid !  Unlike many clinics, Stanford did NOT discriminate against gynephilic and admitted autogynephilic transwomen.  Thus, the burning question on their minds was, would the law still recognize them as married and simultaneously female after SRS?  Though Stanford didn’t discriminate against AGP transwomen, it did insist that they be unmarried at the time of SRS.

In a sense, the question was never adjudicated, to my knowledge, for transwomen married to women.  But marriage and recognition of legal sex DID become an issue for a fair number of MTF HSTS married to men… sometimes with a positive outcome for both questions, and sometimes with a negative outcome for both questions, depending on the State and the court.

Jeff and Kay saying their vows

Here is how it gets personal.  I’ve been legally married in the State of California since 1999, sixteen years.  I love my husband very much, and with or without legal recognition, I would still be with him and consider myself his wife.  But I wanted and still want our marriage to be valid and recognized.  And therein lay the rub.  I was born in the State of Texas, which in 1999, did NOT recognize either “sex change” nor post-operative transsexual persons marriages.  Texas would not change a birth certificate for “sex change”… but that didn’t stop me from getting a “corrected” one, to correct the “clerical error” of the wrong name and sex, oopsie!  So, in the State of Texas, should the court have discovered my subterfuge, a Texas court would likely have declared me legally male and my marriage void, (as happened to Christine Littleton around that time).  I vowed never to live in Texas !

It should be noted that Texas has since changed its policy on transsexual birth certificates and a Texas court has since reversed precedent and declared that transsexual persons marriages to their spouses of the opposite (legally recognized) sex to be valid.  Further, since California Prop. 8 was declared unconstitutional and same sex marriage is recognized, my marriage is just that much more protected from court challenge.

But there are still places and courts where this is not clear.  But if a HSTS’s marriage can’t be voided by declaring her legally male, ‘phobic judges will have less incentive to do so.  And similarly for an FtM transman married to his wife.  So it still matters to HSTS that the SCOTUS decide that same sex marriages are the law of the land. And it matters even more to AGP transwomen still, or wishing to be, married to their female (or even other transwomen) partners. Let us all hope that the SCOTUS makes the right decision after the hearings today.

(Addendum 6/26/2015:  BREAKING NEWS – Marriage Equality is now the law of the land in all 50 U.S. States !!!)

(Addendum 4/14/2024:  Since 2015, with marriage equality ending much of the war on gay & lesbian families, the right wing bigots have switched their focus onto transsexuals.  Many states have reversed course and no longer recognize the post-operative sex of transsexuals.  So, for the sake of our marriages, the Federal case law that supports our marriage rights is even more important than ever.)

Further Reading:

Family Memories:  Getting Married