Antonia D'orsay

Erasing Marriage

Filed By Antonia D'orsay | January 14, 2010 1:30 PM | comments

Filed in: Marriage Equality, Media, The Movement, Transgender & Intersex
Tags: AFER, Erasure, LGBT, LGBT civil rights, marriage, marriage equality, Prop 8 trial, Trans, transgender, transphobia, transsexual

I'm in the process of writing the last of my articles in my series on foundational stuff, but I'm not quite finished.

In the interim, I'm going to talk about other stuff. In this case, the trial regarding marriage equality that's going on right now.

I'm in favor of marriage equality. One of the articles coming out soon will explain why that is, and some of the arguments used in the trial dovetail nicely with why I feel that way.

I'm also in favor of the approach being used by the team assembled to challenge this. I am not fond of some of the people who advise that team, though.

I am not, however, fond of the erasure of trans folk from the whole thing. Call me predictable, and read on to see why.

The press over the trial is, ultimately, quiet. Indeed, for such an important a case, I'm somewhat surprised; although I am aware I shouldn't be given the lack of willingness to cover the lgbt anything in the wider news.

I've been reading transcripts of the court case, and I love what I see. I think the overall presentation is pretty good, but it's still very early, and while there are specific things being seen, they may indeed just be red herrings.

One thing that stands out is the absolute prohibition on motivations and source behind the campaigns. It's very easy to see, nearly immediately, what one of the points being raised is, and that gives one a good insight into the reasons why our opponents want none of the proceedings public: Romer v. Evans.

In the 90's, Colorado passed a law. A terrible law. It enshrined discrimination and actually sought to stop discrimination. In 1996, the Supreme Court made a ruling regarding that law that is important here, as it was very clear.

You cannot make laws against gay people out of dislike for LGBT people. That's unconstitutional.

That was early on in the fight as it is now. At the time, sodomy laws were still legally enforceable as tools against LGBT folks.

But it changed the way in which our opponents worked, and they cannot afford to have their motivations looked at too closely by people who are not LGBT.

That's the focus of these first few days, it appears (at least to me) -- to establish that there is indeed a motivation behind this based in the illegal discrimination of LGBT people.

But you wouldn't know that to read the opinion pieces and articles on the topic.

Because everyone is, at the least, kind enough not to use trans in anything. There's no T here. Indeed, there's no B here, either.

This has become a 100% L/G show.

Let me explain something real quick, if I can. It is the policy of major legal bodies (backed by precedent, but still untested) that the marriages of trans people entered into prior to transition are still valid.

That actually affects me. You see, I'm a straight gal in a legal same sex marriage as a result without the means to extract myself from it in a manner that does not create additional burdens for me.

I want my cake, and then to eat it. And I *could* do that.

Part of the reason that they are considered valid is a legal fiction that more or less implies that we are still what we used to be.

And that annoys me -- because I'm certainly not who I used to be, let alone what.

This does help a lot of trans folk who are in marriages they wish to stay in, and they significantly outnumber people like me, and I'm actually cool with that, but my odd status gives me a bit of insight into an inequity that is generally ignored.

In the same year as the Romer ruling, there was a woman who had her marriage erased by the children of her deceased spouse on the grounds that she was actually a man, and the law did not allow for men to marry men.

This was the first of many setbacks for trans marriage, which, being marriage, is inextricably linked to marriage equality. Since then, the situation for trans marriages has changed dramatically from what it was. In some locations, right now, my marriage to a man, should I be able to get one in the first place, would be invalid when I travel through a particular state. In that same location, my same sex marriage would be legal, despite that state having a prohibition against such.

And this is important: I am in a legal same sex marriage in a state that literally says such things are void, at both the federal and state level. My ex and I, who are estranged, could actually be pulled into tax court for filing a return that takes advantage of that.

In short, there's no aspect of marriage equality that does not impact on trans people.

Some trans folk cannot get married, even in places where its legal, to persons of the same sex - and they want to because they are gay, after all.

In a recent post at the Huffington Post by a member of the AFER team (the group behind the current court case), Dustin Lance Black (MILK), there is a post explaining why it is that we (as in the L/G community) cannot wait for marriage equality.

One excerpt:

To those who have said, "Wait," I say, Gay and Lesbian people should not be forced to wait years to be treated equally under the law. By straining to avoid our federal Constitutional arguments, we only reinforce the false notion that our arguments lack merit. We reinforce the lies and myths and stereotypes that have been forced upon us for generations. We send a signal that we must not truly believe we are equal. The truth is, we are equal, and our love deserves equal recognition and protection under the law. Truth is on our side, and justice, but time is not.

Tell me, do you see trans stuff there? Bisexual stuff?

Tell me, do you think that trans folk can wait? That bisexual folk can wait?

Because I certainly don't, and I think that people who believe that the T and the B can wait need to seriously examine their humanity.

You see, I agree with the above, L/G folks should not have to wait.

But when I see that, I don't see anything that speaks to me, personally, and to the importance of fixing this issue not merely for L/G folks but for BT folks as well.

For the same reasons. You see, not including Trans and Bisexual people in the above sends a signal to trans and bisexual people, and to the rest of the country who are NOT bisexual and/or Trans, that they do not truly believe that BT folks are equal. It helps to reinforce the lies and the myths about BT folks that are used to further keep *us* down.

As I've noted before, one of the most pernicious ways that manifests in LGBT writing is that people do not mention Trans folk or Bisexual folks because they make the issue "cloudy." They are "difficult" to deal with. They "complicate" matters.

Did ya notice my situation? It's actually not all that much different from a couple friends of mine. They got married in California when it was legal. They are, in fact, one of those 18,000 couples. And they are in the same situation I am in terms of validity while one travels.

Not real complicated. Not real difficult to explain or understand. Not too cloudy.

Here's the rub, then: when you purposely leave trans people out of things in order to make it easier for yourself, you are saying that Trans people are icky. That we are *bad*.

We aren't. Trans folk, and bisexual folk, are actually far more powerful because we have the ability to highlight the inconsistencies, to challenge the stereotypes, and, ultimately, to break down the lies that are built in layers about *you*, because, in the end, we are you.

And you are us.

What you are doing is erasing trans and bisexual people from the conversation, and we have just as much if not more stake in the whole thing as you do.

It is insulting. It is damaging.

How would you feel if someone were to propose an anti-discrimination and exclude gay people from the conversation?

Oh, wait. That happened, didn't it? The ADA, in fact. Which still explicitly excludes homosexuality. Because it was icky, complicated, difficult.

You know, at the intersection of disability and gay, there are people who are denied the protection of the ADA on the grounds that they are gay?

Yes, really.

Upset you to know that at all?

It does me.

There are arguments about why it doesn't matter - justifications made - but, in the end, it still does.

So while I am following this trial, I am getting upset at the way that it is harming Trans folk and Bisexual folk. And I am cheering thus far for our side in this battle.

But I want people to remember that they could be even stronger if they remembered to include the rest of us in something that affects all of us.

And stop erasing people.


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I want to thank you for your insight on this topic. As a gay man I have only my experience to shape my understanding of this case.

I found your article to be rather poignant. It reminded me of the sacrifices we begin to make when we get closer to what we want. At first it is the little stuff and before we know it we are severing large portions of who we are in order to accomodate or justify our demand to be acknowledged.

If only those at the front lines can hold on to that fact and retain the integrity of the greater movement that we all be acknowledged as human beings and afforded the rights of citizenship granted to those in the majority.

As a trans woman in a marriage conducted before transition I can certainly relate to how my marriage is affected by the same sex marriage situation in the US. I wrote a blog about it last year, http://emelyes-kitchen.blogspot.com/2009/02/im-already-married-why-should-i-care.html

It boils down to this: I am legally married since the law provides only two methods of dissolving a marriage, death and divorce. My spouse and I have done neither yet since we now look like a same sex couple ('cause we are, of course!) I have to out myself as a trans person in order to access the rights and privileges I enjoyed without question before I transitioned. This, of course, then leaves me open to further harmful discrimination, or even violence, on the basis of my gender identity/expression. Make same sex marriage legal and the need to out myself pretty much goes away.

I suppose the court case in California hasn't mentioned trans people because none of the plaintiffs are trans and because the legal team do not wish to complicate the legal issue. I can't really blame them for that but it increases my fear that somehow, some unforeseen circumstance related to the decision will exclude transgender and bisexual people simply because they weren't mentioned. I sometimes think many gay and lesbian people can't fathom how much the issue intersects trans lives as well as their own. I hope articles like this one help fix that.

Great article...My marriage, performed while I was still male bodied,by a Pentacostal male preacher-relative of the woman I love, is the bedrock of my life. By a strange twist of bureaucratic prejudice, Ohio refused, for the longest time, to amend the birth certificates of anyone in or post transition. So I remain, at least according to Ohio, a male with a vagina in a 30 year relationship with my soulmate, I think...and therefore a legally married lesbian Trans person.

My sympathies to those less fortunate

The law is an Ass!

Thank you for talking about this -- I too am flabbergasted at the lack of trans mention around the marriage issue. Personally, I think within our community there has to be the *perfect* case to blow this thing wide open. But I think the reason it has been avoided is that people already in these sorts of marriages are afraid to rock the boat, lest they lose what they already have.

My situation is even more convoluted: I'm a pre-op trans woman legally married to a post-op trans woman. It's been known to make bureaucrats' heads spin. But it's been very eye-opening to see people try to raise objections only to have them fall apart into a sea of contradictions -- but be upheld anyway. The accountant in me doesn't understand how you can expect to change rules on the fly. And yet they do.

I also fall into the 'opposite-sex married prior to transition,' and want very much to stay with my spouse as a spouse. However, personally, I *don't* want to take advantage of the 'loophole.' I didn't go thru all this to depend of previously being male; I really would prefer that my marriage was automatically voided in the absence of same-sex marriage (which would just make the whole thing irrelevant, as Antonia says).

The whole situation is just bizarre to me. I got my gender changed at a my work (a large, conservative multi-national corp), and requested a ruling on my status with my spouse, whether they recognized our previous marriage, or I needed to apply for Domestic Partner benefits (which they offer), and the legal department said I needed to apply for Domestic Partner status for her. Which is fine with me, but kinda inconsistent with other things I have heard.

So the whole thing is just confusing to me. My plan is to go ahead and set up legal documents like regular same-sex couples, pay separate taxes, all that, but it would be nice if there was a consistent approach for ppl in this situation.

Carol, what I have been told is that it is a good idea to get all the legal documentation done to back yourself up, like other same-sex couples would do. *But* if you have any interest at all in enforcing the marriage, don't ever undermine its existence, or you can lose the ability to enforce it later.

But who knows. This stuff is all so out of the realm of precedent, anyone giving advice is guessing.

Thanks, Phoebe!

Really, I personally would trade the 'legal marriage' and the hetero privilege for full, complete legal status as a woman. It prolly is stupid, but I plan to *not* take advantage of being legally married and just pay the gay penalty--taxes on my spouse's health insurance, separate tax filings, all that. If I die before her and she wants to push the issue to get my SS or something, that is her choice, but I intend to do what I feel is right to me rather than what is expedient.

Carol :)