Alex Blaze

Tennessee could invalidate transwoman's marriage

Filed By Alex Blaze | May 12, 2009 11:30 AM | comments

Filed in: Marriage Equality, Politics, Transgender & Intersex
Tags: gay marriage, Jeffery Scott Phillips, Jo Rittenberry, Kentucky, LGBT, marriage, Montreal, prison, same-sex marriage, srs, surgery, Tennessee, trans, transgender

The Leaf Chronicle has a story on their site now about a transwoman who married a cis-man in prison in Tennessee in 2007, but whose marriage was overturned because she's legally considered male in the state of Tennessee.

The Chronicle did a pretty lengthy investigation into this case, and you can read the full details on their site. But the short version is that Jo Rittenberry was born male in Kentucky and transitioned later in life. She claims to have had full SRS in Montreal, but the clinic where she had it says she didn't go through with it. Either way, she was living as a woman, and she had had her birth certificate changed in Kentucky based on a letter from her doctor saying she completed SRS. She then used that birth certificate to get a female driver's license in Tennessee (Tennessee doesn't allow sex changes on birth certificates, but Kentucky does).

She was found guilty on domestic violence and credit card fraud (unrelated to gender/sex), and was sent to the men's penitentiary because an officer patted her down during a physical and deemed her male. She is currently separated from the general population, though, because prison officials worry about her safety.

Rittenberry applied for a marriage license with Jeffery Scott Phillips, a cis-man who wasn't in prison, and used her driver's license to obtain it. Phillips said they married "no questions asked" through a telephone receiver. The state later found out about Rittenberry's transgender history and invalidated the marriage seems set to invalidate the marriage.*

What should matter is this:

"It wasn't anything planned to be deceptive," Rittenberry said. "I'm not gay, and Jeff ain't either."

Either way, Rittenberry plans to do whatever it takes to legally marry Phillips.

"Other transsexuals marry," Rittenberry said. "I will go out of state and marry him somewhere else."

Phillips considers it unfair that the state won't honor the marriage.

"What does it say on her birth certificate? Female. There you go," Phillips said. "To me, it's real."

Of course, these two people should have the right to marry any other consenting adult they please, and Rittenberry should be housed with her gender so that she doesn't have to be isolated for fear of violence.

This story isn't just illustrative of the legal complexity of legally changing one's sex, it's also a testament to the lengths people go to "confirm" the "real" sex of someone if they're trans, as if that person's body should be splayed and dissected and felt up and examined before someone can be respected as the gender he or she is.

Thanks to Interested for emailing in the link.

*Updated the wording of the title and the last sentence before the jump... check out Abby's and Angel's comments.


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I got my flack jacket on, my Kevlar panties and a helmet. I already know who will be commenting and what they will say. I think Alex knows, too. This looks like a great time for another vacation. IM me when this hits the Archives.

The fact that some clerk says the marriage is invalid doesn't make it so. Only a court can declare a presumptively valid marriage, as this one is, to be invalid.

Also, the fact that Tennessee won't change the gender on the birth certificate of someone born in that state doesn't mean that the state can't or won't honor the validity of birth certificates from other states on which the person's gender has been changed. In fact, the "full faith and credit" clause of the federal constitution requires Tennessee to honor the administrative and judicial acts of other states, including changes to the gender on the birth certificate of person born in Kentucky. Unfortunately, DOMA may give Tennessee an "out" and allow them to refuse to honor the changed birth certificate from Kentucky for purposes of marriage.

Also, if I was Rittenberry, I'd be looking into suing Drs. Brassard and Menard, and their clinic, for disclosing private medical information without her permission. That is clearly illegal under U.S. law (HIPAA) and I suspect Canada has similar restrictions.

Also, for a secretary at the clinic to claim that the letter Rittenberry submitted to change her Kentucky birth certificate "was not authentic" without having seen the letter is outrageous. She obviously has no way of knowing whether Rittenberry had surgery somewhere else or simply found another doctor who certified her completion of SRS. Talk about sticking your nose in where it's none of your business!

If I was a former or prospective client of Drs. Brassard or Menard, I'd be very concerned about the confidentiality of my medical information.

In fact, the "full faith and credit" clause of the federal constitution requires Tennessee to honor the administrative and judicial acts of other states, including changes to the gender on the birth certificate of person born in Kentucky.
Sorry, but there's piles of caselaw on exactly this point that make it clear that the issuing of a birth certificate is considered neither an administrative or a judicial act for the purposes of this clause. And that for transsexuals, Birth certificates are meaningless in many states.

Oh yes, that's horse-puckey, but until such a case gets certiorari from the Supremes, that's the law.

See for example in re marriage of simons in Illinois where it was held that a state could even ignore BCs that they themselves issued, for the purposes of marriage.

Texas ignored it's own Texas-issued BC and invalidated a Kentucky marriage in Littleton v. Prange.

Kansas ignored a Wisconsin BC in In Re Estate of Gardner.

Formerly legal marriages of straight trans people have been rendered invalid in more states than have gained gay marriage. Trans people have actually gone backwards a lot when it comes to many human rights in the last 40 years.

Just to clarify something, since I know her, Christee Lee did NOT change her birth certificate until AFTER the court case.

I've long felt that the linchpin of the gay-marriage movement is the marriage of a T person, and that the fallout will be messy. This could be the case that forces states and Fed to attempt to define "man" and "woman", and if that happens, the results are unlikely to be pretty or favorable to T people, at least anywhere between Hagerstown and Reno.

Kentucky's provisions for changing birth certificates, difficult as they already are, at least are surmountable at this time for those postops who use some foresight. I expect that, as news of this case spreads, along with the knowledge that this T probably falsified docs to get the BC change done, T Kentuckians will have to weather yet another assault on our civil rights in Frankfort, as a result of the blowback.

Polar, don't be so quick to condemn Rittenberry as having "falsified docs to get the BC change done." Some doctors will certify that a trans woman has completed "sex change surgery" upon completion of an orchiectomy (aka castration) without vaginoplasty. She could have had that done many different places. Thus, the fact that Drs. Menard and Brassard (improperly) claim she hasn't had SRS (who knows whether they ever actually examined her?), and that the jail guard claims he felt a penis, doesn't mean she did anything wrong in changing her Kentucky birth certificate. Most state statutes allowing for changing the gender on a birth certificate don't define the surgery required, instead correctly leaving that medical matter up to doctors to determine.

The article says Kentucky requires:

A sworn notarized statement by a licensed physician showing a surgical procedure had been performed.

A certified copy of an order from the court showing a name change had been completed.

"A surgical procedure" can mean a lot of things.

I have to agree with Abby ("The fact that some clerk says the marriage is invalid doesn't make it so "), who makes several other good points as well.

The Leaf Chronicle's article is a pretty poor example of reporting on trans issues. Alex, you also need to be more careful in your reporting: the headline "Tennessee invalidates transwoman's marriage" appears to be untrue (unless you have additional information on an actual court order dissolving Rittenberry's marriage).

Good point. I updated accordingly.

Thanks!

Here's a link to a great column from the Monday New York Times: http://www.nytimes.com/2009/05/12/opinion/12boylan.html?emc=eta1
In the days of bans on interracial marriage, states had to determine a person's race -- not always a simple matter. Some of the court cases on the subject are fascinating. Let's hope legal disputes over a person's sex are also one day a footnote in history.

Jenny hesitated on publishing her article because some trans activists feared discussing the issue of marriages involving trans people would result in a backlash. As I pointed out to her, the NYT reported on this issue last year: http://www.nytimes.com/2008/04/27/fashion/27trans.html, as have many others. I'm glad she went ahead. The existence of trans marriages is just one more piece of the puzzle that shows the absurdity of bans on so-called "same sex" marriages.

Yeah, I live in TN and even though I'm on HRT and have been living as female for more than 2 years basically because I can be read they won't even let me change my DL. This was a major issue when I was driving 18-wheeler for a living because some states like TX for instance have gender laws about the bathroom where if I had been read I could have been arrested because of it. About the only thing TN does right with regards towards T folk is there are no laws about who has to use which bathroom.

So she hasn't had the operation? Sounds like a no-brainer if any of this goes to court- she loses. She's lose anyway down there probably, but they won't even get to the point of questioning any of the legalities involved with gender changes. Penis = man before all else to these people.

This doesn't help or hurt same sex marriage, it's just another rejection of it, status quo reigns supreme. It probably -will- be a black mark against the marriage hopes for any kind of transitioned people though.

The more these kinds of cases pop up in the media and are reported rejected as "male-male" by the various governments, the more the public builds a negative image of "transpeople". It doesn't matter how sympathetic people want to be, there will be social pressure to condemn these tricksters.

ariablue, you're making the same mistake Polar did by implying that Rittenberry is a "trickster[]" when, in fact, since vaginoplasty is not necessarily required, it's just as likely that she did everything the law requires to change her Kentucky birth certificate. I agree that there are those who may see her as such, but we don't help our own cause by joining in such criticism without knowing all the facts.

I'm sorry, I meant to put "trickster" in quotes. A lot of people consider all of us tricksters, is what I meant. That said, if the regulation specifically says that female genitalia are required to change the BC, then getting an orchi doesn't qualify. Depends on the wording. But if the person still has a penis, you can't seriously expect the law to look favorably on this situation.

The main problem with trying to push the limits is that the states will rescind ALL changes rather than fix the rules the way they want them. That's the way government works; break one, cut both off. Trying to skirt the system rather than asking for new rules in will bring a huge backlash.

It's not the concept that is the problem, it's the way that people go about things. Now we have an issue after the fact rather than challenging the laws beforehand. And this from a person who says they are perfectly fine being called a man and put in men's prison. There is a question of consistency that the public, and the government, will not care to deal with. Legally this person is a man and we have one more mark against all people who identify as trans.

Angela Brightfeather | May 13, 2009 1:15 PM

For every person that this type of thing happens to, (and we know there is no end to the variations of this type of thing) the more ridiculous it seems that people insist on laws to try and make it illegal to marry who you want.

Sooner or later one of these cases is going to reach the Supreme Court and when it does, as a community we need to prepare ourselves for that now and in the future. Past cases have failed to be heard by the Court, but those are in the past and as with any human rights movement, there are a multitude of unheard cases, before it reaches a crescendo and the new case that will get to them will be heard. We are constantly building on these cases of abuse, intolerance and discrimination over the years and the pendulum is beginning to swing our way right now with some new SC judges in the future appointed by Obama and cases in the lower courts like Dianne Shroer's that have been successful. It's time to start preparing. This case is just another example why our community needs to start pulling together instead of judging each other. At our conventions and gatherings we need to start to talk more about issues like this one and one's fromt he past in light of the changing perspectives of today. People like Shannon Minter and other legal minds in our community need to be harnessed at these conventions to do the introspective work that needs to be done and to prepare our community in arguing and debating for our issues.

Transgender relationships will change the perspective of many issues in the future and the more people that demand it will make it happen that much faster.

The real trickster was the doctor who signed off Rittenberry as having had SRS. Or is it that every man who had testicle cancer resulting in the removal of his testes is listed as having had SRS?
I am not sure how the Canadian doctors were approached in regard to the matter of Rittenberry but I suspect it may well have been part of a legal request either by Rittenberry's attorney's seeking support of his/her claim or a fraud investigator for the State of Tenn. Sure would send up red flags if a male identified person in prison married a male outside of prison would it not?
I do have to wonder how it was possible that a marriage even took place in a male prison where Rittenberry was identified as a male yet was allowed to marry a male if the state did not permit same sex marriage in the first place?
I had final corrective surgery 37 years ago and two others before then and am offended that cases such as these wrongly throw me and others to the rear of the 'trans' bus and are being used as a back door method to advance same sex marriage. Genital sex and/or the correction of it has nothing to do with ones sexual orientation so why is it being now confused with the issue of actual transsexuals?
I feel strongly that the distinguishing aspects of transgenderism be treated as just that without it being confused with transsexualism. The former is a social non-biological construct and the latter a medical condition, as supported by research, that for the true transsexual is a never ending driven need for correction.
And let us face the facts: most transgender identifiers are heterosexual males who seem to be transvestites/crossdressers so how might they be even compared to those who have a brain sex in contradiction to their genitalia? - - - the true transsexual. Statistically it is assumed that the percentile of transgender population are 1/2500 and actual transsexuals are 1/30,000 and thought by some statisticians to be even higher.
I have no doubt I will be hammered on this forum for my opinions but then I am a distinct minority who does not make claims to which I have no direct interest as it seems so many others might do when addressing an issue to which they have no direct connection.