My thoughts were first directed to this by Bil, who'd been corresponding with some couples in which one partner is trans, and they'd managed to squeak marriage in under the radar, by scheduling surgery and ceremony relative to a point at which they'd still be legally considered a male-female couple. But then Indiana flooded and I changed jobs, so the original article plans and discussion had fallen by the wayside. But in looking up the background on it, two things became clear to me: transfolk still need the legalization of same-sex marriage (although arguably, there are things that are needed more right now), and the same-sex marriage lobby needs transfolk.

When the ENDA exclusion was occurring and groups were taking a stand to not support legislation that was non-trans-inclusive, writers like Chris Crain often brought up the ability of some transsexuals to marry, and wondered why transfolk wouldn't likewise abstain from marriage until it was available to all. What he and many others don't realize is that it's not that simple. Recently, Brynn Craffey rightly pointed out that marriages involving transfolk are routinely challenged or invalidated, and went on to comment:

As a queer-identified FtM, I always thought it was bizarre that I could legally marry a female partner but not a male partner, despite the fact that what I do in bed with a male partner more closely matches what heterosexual people do, while what I do in bed with a female partner technically falls under the "same-sex" category. We trannies, I always thought, embody the paradox at the heart of straight people's opposition to marriage equality.

For this reason, marriages involving transgender persons have never been particularly secure outside environments where same-sex marriage existed. In 1970, April Corbett (neé Ashley) found her marriage annulled and was declared to be legally still a man, in spite of a legal sex reassignment. This left United Kingdom transsexuals unable to marry as either sex, until the Gender Recognition Act came to be, in 2004 (and even then, marriage can only happen if the coupling is male-female). The U.S. also has its precedents, such as the Littleton vs. Prang case in 1999, in which Christine Littleton lost her case against the doctor who she contended negligently allowed her husband to die. The negligence wasn't even considered -- instead, the defense successfully argued that even though her birth certificate has been amended to denote "female," it had originally read "male," and since same-sex marriage is not permitted in Texas, she was not legally his widow or entitled to anything on behalf of his estate.

It's not all that bleak. In 2002, Michael Kantaras won a custody battle in Florida that questioned his gender and right to marry. But the majority of existing precedents demonstrate that even though it may be easy for transsexuals to obtain marriages at points in their lives that would classify them as "heterosexual" couples, any time someone (an ex-spouse, an in-law, an insurance company) wants to challenge the validity of the marriage, the legal ground remains very shaky.

Transfolk still need the legalization of same-sex marriage. And the same-sex marriage lobby needs transfolk.

The legal quandary remaining in 48 states provides a particularly compelling argument for same-sex marriage. If a transsexual stands to have marriage challenged regardless of whether their partner is male or female (i.e. can be challenged alternately by their post-op status or their birth status), then it becomes a clear human rights issue. There is a risk that this argument can be defused the same way the UK handled it with the Gender Recognition Act (i.e. by establishing a means of marriage protection on the provision that it's a heterosexual pairing), but then this does become a question of obvious discrimination based on orientation. And every transgender marriage that is upheld, relative to physical status or birth, is one more exception made that provides legitimacy for the argument in support of non-traditional marriage. Either way, there are potentially effective ways of chipping at the stone.

The question now is whether hardline GLB and hardline trans people are willing to work together on this.

In the meantime, I am happy to enjoy the privilege that Massachusetts and California now share, to wish a very loving, happy and well-paired couple all the best, without fear that it could be challenged in any way and with the ability to enjoy the subtleties and nuances about life revealed by their life experiences.