Austen Crowder

Clarification in New York Marriage Rules for Transgender People

Filed By Austen Crowder | March 08, 2011 12:30 PM | comments

Filed in: Living, Marriage Equality, Politics, Transgender & Intersex
Tags: marriage, transgender

One of the most understated barriers to equality for trans people isn't animus - it's ambiguity. Some of our biggest steps of progress trans-rights-protest.jpgcome from the clarification of rules regarding gendered institutions like marriage. Take TLDEF's latest victory regarding policies for transgender marriage applicants in New York:

Jane and John are both transgender. They are an opposite-sex couple who have been in a relationship for over a decade. In Dec. 2009, they attempted to marry in the Bronx. They fulfilled all of the requirements for receiving a marriage license in New York City and presented their government-issued photo identification - the only identification required by the City Clerk's office. Rather than issuing the marriage license, the City Clerk refused and instead demanded that Jane and John produce their birth certificates before they could be married - something not required of other marriage license applicants.

Under the terms of the new policy, issued on Feb. 7, 2011, once a marriage license applicant produces the required photo ID, the City Clerk may not request additional proof of sex. Moreover, City Clerk employees are forbidden from considering the applicant's appearance or preconceived notions related to gender expression when deciding whether to issue a marriage license.

I know we focus on bigotry and bias within the community but sometimes we find the greatest traction in the simplest requests. Transgender people are caught between a rock and a hard place regarding one-man-one-woman policies; even if they receive a license it can't be relied upon to remain valid in the court of law. Most middle-of-the-road folks aren't looking to put the thumb on trans people - instead, they're just trying to find guidance in regards to rules that start to break down when gender comes into question.

Congratulations to TLDEF for finding clarification in this. It may not be front-page news but these kinds of policy victories do more for trans equality than a whole mess of alphabet-soup laws can ever do.

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I read that this policy announcement was 14 months in the making, and that these people are still not married.

I have to say I'm utterly dumbfounded that the discrimination problem in the City of New York is apparently so profound that it takes a legal advocacy organization, the threat of a lawsuit, and over a year to achieve the amazing result of... following the law as it is already currently written.

Really, is this Alabama? I don't understand why this couldn't have been solved by using the magic words, "Let me speak to your superviser". And if necessary, their superviser. Worse come to worse, go back to the office another time and speak to a different clerk. Or go to another office. There has to be a minimum of at least four others in New York City alone. But 14 months? Really?

What about a single phone call to your elected representative? (I'm a little fuzzy about jurisdiction. Normally, marriage is a state matter. But this clearly talks about the City clerk. I suppose they could have a separate mechanism from the state the same way they have their own Bureau of Vital Statistics for birth and death certificates)

But is it really so bad there that these other standard remedies were in vain and it was necessary to have a legal group go to bat in order to get the law enforced already as written? Were they even tried?

Am I to understand that no trans people have been married in the City of New York for over a year? I seriously doubt that, which means City clerks have been issuing marriage licenses all along without this amazing clarification. So what was the real problem with this case? My guess is a single clerk dealt with one person who didn't pass. And voila! A "federal" case.

Mind you, I don't object to the clarification and the accompanying training. Obviously that's a good thing. It's just mindblowing to me that that's what it takes in 2011 in NYC to fix this problem. A legal group and 14 months. Wow.

I was at the NYC Office of the City Clerk yesterday delivering the required training to 20 of their staff. I will train the other 40 staff over the next two weeks. You are correct when you say the initial incident was about one clerk. I cannot comment on the "year" of negotiations but the training went very well.

Well that's very good news, Carrie. How is it that you've come to have that opportunity?

Thanks for doing the work needed to make things better for our community, Carrie. I honor you.

According to their letter, it wasn't just one bad apple clerk, but rather an unwritten policy that was in place that allowed clerks to ask visibly transgender people for additional ID.

I was at the NYC Office of the City Clerk yesterday delivering the required training to 20 of their staff. I will train the other 40 staff over the next two weeks. You are correct when you say the initial incident was about one clerk. I cannot comment on the "year" of negotiations but the training went very well.

In the state of New York, marriage licenses are issued by city, town and village clerks.

I had been under the impression that birth certificates were required documentation for a marriage license(and, in the case of my own marriage license, my birth certificate was a necessary prerequisite, since I have a legal lesbian marriage because of variance in the requirements for DMV gender correction and birth certificate gender correction in the state of New York. I am female for all DMV purposes, but since correcting a birth certificate is both optional *and* requires proof of "convertive surgery," my birth certificate still indicates "male.")

My spouse and I were turned down at the Whict Plains City Clerk office in late October 2009, but since any municipal clerk in the state can issue the license, we went to the Manhattan office of the New York City Clerk to make our second attempt. Once we got to the hed of the line, we were directed to another window and escorted to a back room, where I explained to counsel that existing caselaw permits a New York marriage licenst to be issued to a lesbian couple where one is trans, and has not had her birth certificate amended from male. Counsel took three hours to get a second opinion, at which point the license was issued.

I sincerely hope that this new "improvement" does not result in denial of licenses to gay and lesbian couples where one is trans.

What I don't undertand, is that a trans woman who is pre-op but has a DMV correction on her driver's license, will apparently be able to get a license to marry a cis man, even though existing caselaw does not permit this (at least until the marriage bill is passed). (and vice versa for a straight trans man with a cis woman)

I have a feeling that in these cases, even if a license is issued, the marriage might end in a declaration of nullity, or might fail to pass scrutiny in other circumstances.

There is so much that is vague and confusing about this case.

what is known?

"Jane and John are both transgender. They are an opposite-sex couple who have been in a relationship for over a decade."

according to Shannon Minter

“transgender” also includes a variety of more
specific identities.

"It includes transsexual people, cross-dressers, transvestites, drag queens, butch lesbians, feminine gay
men, and even more generally any women who have so called masculine characteristics and any men who
have so called feminine characteristics."
"It’s important to make it clear, however, that not all transgender people choose to undergo any medical
treatment. Not even all transsexual people do. There are female bodied people who identify as male and
as transsexual without any medical treatment"

http://www.transgenderlawcenter.org/pdf/AdvancInStateAndFedLawReCATransEmployees.pdf

According to Harry Benjamin, under his sex orientation scale, a person described by him as the mildest form of transsexual does require medical care:

http://en.wikipedia.org/wiki/Benjamin_scale

Type IV Transsexual (Non Surgical)

Estrogen Medication: Needed for comfort and emotional balance

So, this couple has been described as "transgender". Already there is a conflict in terminology leading to confusion about what is involved in this specific marriage case.

According to this study,

http://priyosudibyo.staff.fisip.uns.ac.id/files/2010/05/2007-transgender-and-public-policy.pdf

twenty-three states do not allow post op erative transsexual people to marry people of their birth sex. Florida, the state where the Kantaras v Kantaras decision was issued,by the way, is one of those states where post operative people cannot marry those of their birth sex. Regardless, contrary to what many transgender advocates insist, post operative status is regarded as a change of sex which has significant implications in many jurisdictions.

The significance of sex characteristics is dismissed by transgender advocates. In this particular case, taking place in New York City, there has been at least one significant ruling based on sex characteristics. This case discusses transsexualism as it relates to DOMA and immigration law using Maffei, v. Kolaeton Industry, Inc as one example of how transsexuals are regarded by the courts in New York City:

http://www.ilw.com/articles/2004,0817-mehta.shtm

". . . But this is an extremely simplistic view of transsexuality. Experts generally agree that sex is not just identified by external genitalia manifested at birth, but that there are at least seven variables that interact to determine the ultimate sex of an individual, to wit: (1) Chromosomes (XX female, XY male); (2) Gonads (ovaries or testes); (3) Hormonal secretions (androgens for males or estrogens for females); (4) Internal reproductive organs (uterus or prostate); (5) External genitalia; (6) Secondary sexual characteristics; (7) Self-identity,"

If this is the case in New York, where the courts are already on board recognizing the transitioned to sex of transsexual people, why is this not brought up in the very vague article about the "transgender" couple. None of what is spoken relates to "gender" or "gender identity". The term used is "self-identity", a term with much different overtones than the sexist term "gender identity" with its overtones concerning gender expectations for a particular sex, a very important distinction.

All we know about in this case is the fate of two "transgender" people who may, in the words of Minter, be simply "feminine gay
men, and even more generally any women who have so called masculine characteristics and any men who
have so called feminine characteristics."

What I am getting at is the obvious conclusion that lawyers, like Minter, are careful not to describe transsexual people as people who change sex, turn them into people who are just extreme examples of others of their birth sex and render any kind of marriage issue involving a person he describes as "transgender", whether a person of post operative transsexual history, or not, as someone in a same sex marriage as long as their birth assignments are the same.

Marriage is not the only important issue to post operative transsexual people. Personal integrity is much more important. Such reasoning, that a person of transsexual history is merely an extreme form of "transgender" is not the view of twenty three of the states in the U S. That, right there, becomes a huge source of conflict for a transsexual person. Add to that the opinion of the experts in Maffei, v. Kolaeton Industry, Inc, on sex characteristics one has to conclude that anyone who is intent on reducing the situation of a transsexual person as simply a matter of gender is living in abstractions and is completely removed from concrete reality.

More and more as I am able to sort this out, it becomes obvious what the motivations of those who have formed the LGBT alliances that exist regarding the political expedience involved in framing genital surgery as having no significance in a world where all "transgender" people are the same as long as they are assigned similarly at birth.

To provide a link to the Nikki Aruguz case and describe it as simply a "transgender" question is entirely mis-leading. She is someone who was born intersex, first off. She married before she had her genital surgery and had her birth certificate was amended in California which is a state that would not allow her to marry someone who was assigned the same sex she was after surgery, I believe.

I don't know what the motivations of someone who is of post operative history would be for going along with the erasure of transsexualism. There have to be consequences involved for transsexual people. It is obvious those consequences go way beyond marriage. With so little to go on, where this case is involved, there seems little to jump for joy over. It seems this could end up in the courts with who knows what unintended consequences for people of transsexual history.

Correction:

I wrote -
"twenty-three states do not allow post op erative transsexual people to marry people of their birth sex."

Actually, twenty-three states do not allow post op erative transsexual people to marry people opposite their sex assigned at birth.

That is not true for anyone but people of post operative transsexual history. Why is this not acknowledged more often. When is GLAAD going to stop erasing this fact. This is not true for any other category under their so called "transgender umbrella".

Right now, I wish I could delete my comments but I am still not sure. I feel like I got worked up over nothing but at the same time I don't think so. Joann has provided the most information regarding this very confusing situation. I have read two of the Edge articles and a Facebook friend put up the New York Daily News article. I have tried to read everything thoroughly to understand what it is I do not understand. I waited a couple of days to comment on this because everything is so nebulous.

Joann writes:

"What I don't undertand, is that a trans woman who is pre-op but has a DMV correction on her driver's license, will apparently be able to get a license to marry a cis man, even though existing caselaw does not permit this (at least until the marriage bill is passed). (and vice versa for a straight trans man with a cis woman)
I have a feeling that in these cases, even if a license is issued, the marriage might end in a declaration of nullity, or might fail to pass scrutiny in other circumstances."

I wonder if none of this has to make sense, why should any decision the courts make in relation to anyone's marriage rights or legal identification have to make sense? Does anyone know if the identification the couple offered to show to get their marriage license has anything to do with how they "identify"? Was this about someone not liking the way they were dressed? Did the female "identified" person have very conspicuous breasts and a male drivers license? Did the male "identified" person have a beard and a female license? Or, was it the opposite way around, whatever that means? The one thing the article said is that they were "opposite sex". Is this all about genderfucking? If so, how far into the legal system is this going to get before if becomes a situation that is very far from amusing for someone?

I guess one should assume that the couple had their licenses changed to reflect their gender/identity expression since they objected to showing their birth certificates. I don't know what requirements New York has as far as getting a legal gender identity changed on a state drivers license. Is there anything to keep someone from getting a gender change on a lark? I don't know if it is the way the articles are written or the situation, itself, or both. I think it would help to have some clarity. I don't think the law should be arbitrary or variable. I know it shouldn't. Why isn't anyone able to make what happened here clearer?

unrelated to New York City, this popped up on my Facebook newfeed :

http://newsok.com/oklahoma-house-rejects-measure-to-change-birth-certificates-for-transgendered/article/3547008

So, I decided to go back here:

http://priyosudibyo.staff.fisip.uns.ac.id/files/2010/05/2007-transgender-and-public-policy.pdf

The Oklahoma story conflicts with what the paper linked to directly above states but I found this about New York City while reading through most of the entire paper:


"As with the variety of policies regarding vital records amendment, there
are varying standards as to what constitutes sex reassignment. In 2006, this
issue was the subject of controversy in New York City (Yoshino, 2006).
Using its rule-making authority,the city’s Board of Health proposed a policy that would have permitted a transgender individual to amend his or her birth
certificate provided (Yoshino, 2006):
• He or she had undergone a legal name change
• Lived in the acquired gender for at least 2 years
• Submitted two affidavits (from qualified medical and psychological pro-
fessionals) that demonstrated full transition and its intended permanence
The guidelines did not require sex reassignment surgery. City health com-
missioner Thomas R. Frieden justified the new policy by stating that
“surgery versus nonsurgery can be arbitrary. . . . It’s the permanence of the transition that matters most”(as cited in, Cave, 2006)."

I don't understand why the city has jurisdiction over who can amend their birth certificates but that is what it states here. Further on it says:


"Although sup-
ported by many activists because sex reassignment is costly and often
unavailable, the proposal drew heavy criticism from institutional stake-
holders such as hospitals, jails, and schools (Yoshino, 2006). These insti-
tutions rely on sex classification, but they were not consulted during the
rule-making process. In addition, the proposal might have conflicted with
existing state policy and proposed federal guidelines. In response to
public and institutional outcry, Commissioner Frieden admitted that the
board “hadn’t thought through” the proposal’s implications (Yoshino,
2006). Subsequently, the board scuttled the original proposal and settled
for an incremental improvement to the existing policy. It allowed postop-
erative transsexuals to amend their birth certificates to show the acquired
sex (Yoshino, 2006)."

So, it seems there are many pieces missing to this puzzle, still. 2006 was five years ago. I think the Edge and the New York Daily News could have done a better job reporting this. I also think the legal organization that worked for fourteen months could do a much better job issuing press releases. Cases like this should see the light of day and not be conducted behind closed doors. Concepts such as "transsexual", "transgender", "genetic male", "genetic female", "cis", "trans", have more, less and not specific at all meanings, meanings that sound deceptively scientific which are not scientific, and meanings that only have relevance within certain sub-cultures. Throwing everyone under one very wide umbrella only serves to make the existence of everyone under there meaningless.

Every week this consumes hours of my attention. It is such a distraction. Who has time to understand any of this? Why should a legislator want to get bogged down on these issues? Or a police department, or a news reporter? What definitions is a judge supposed to use for guidelines? Oh, a transgender person is just about everybody under the sun depending what mood they happen to be in at the moment, then there are "genetic" males and females? Like what does that mean to a woman who was born an infant just like everyone is, has a "y" chromosome and a vagina?

Activism seems only to have made things worse for transsexual people and has not helped people who just happen to be intersex, except to erase the existence of each. Yes, a woman who is born with a "y" chromosome, a vagina and testicles that help her develop secondary female characteristics does not need medical treatment. That does not make her transgender, transsexual or anything less than a woman unless someone starts talking scientifically sounding gibberish about "genetic females".

Where is this going? Transsexual people, transgender people, intersex people do not exist apart from any other people. If we are going to extend umbrellas lets have one for the whole human race. If someone wants to eliminate gender, which is probably an impossibility, it will do terrible injustice if gender is not eliminated for everyone, not just people who are thrown in the transgender ghetto.


You bring up interesting points in your comments - believe me when I say I've thought long and hard about marriage issues regarding trans folk and the convoluted rules/potential conflagration clarity may cause. A few things:

Arraguz is an intersex person, yes, but the line of logic being used to argue for the nullification of her marriage is based on perceived gender nonconformity, not her specific condition. The subtle differences in her situation are ignored for the fact that her birth certificate originally said male - her situation in this regard is no different than mine. Perhaps luck and persistence will shine on us all once DOMA is a historical artifact, in which case this whole conversation becomes moot. Still the difficult work of equality remains.

I don't have the answers to even half the questions you pose. (I doubt anybody has all of them!) However, I disagree that activism has harmed transgender people. People standing up and demanding rights - oftentimes in quieter, subtler, less politically active forms of activism - has done more to fit transgender people into the "human umbrella" than silence ever has. Many of the trans-friendly policies in Indiana were generated by quieter forms of advocacy - network connections, talking to the right people, making common-sense appeals to experts and policy-makers in their respective fields.

After two and a half years of slogging it out in the LGBT political trenches I've come to the conclusion that "live first, fight later" is of the utmost importance. The importance of cisfolk meeting successful and happy trans people cannot be understated -- it shines a light on the absurdity of policing trans identities and creates allies. (But there I go, ramblin' on like I always do.)