Mercedes Allen

Flying Marriages Under the Radar

Filed By Mercedes Allen | June 23, 2008 2:30 PM | comments

Filed in: Living, Marriage Equality, Politics, The Movement, Transgender & Intersex
Tags: California, gender recognition, marriage, Massachusetts, Prang, transgender

I recently had the pleasure of attending and helping out with the wedding of some close friends in the trans community (or at least until I threw my back out and hit a bout of dehydration and shock that messed me up somewhat for the rest of the day). My partner was a bridesmaid. I won't say a lot about it, because I haven't yet discussed with the couple what they prefer to remain private and such, so all I'll say is to jokingly and affectionately comment that if you want something to start on time, don't let a drag queen organize it.

However, it amazes me just how much insight and maturity can come from a union where one or both of the partners is trans, bi- or gay. In the case of transfolk, we tend to see the world from eyes in which we are socialized to be something entirely different from what we are. It tends to make one question things a whole lot more, such as why men have to be "stoic" or why women aren't paid their worth in employment. I fail to understand why radical feminism sometimes feels threatened by transwomen, for example, when we've probably got the most intimate experience with male privilege and the lack of it, by acutely having life experience of both for comparison.

In Canada, we've come that far, that we don't have to be thinking about the legalese behind the marriage. In the U.S. you're not so lucky, aside from in Massachusetts and (barring a challenge) California.

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 (neƩ 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.

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I don't know whether to thank you for writing this, or point out you're about 15 years behind the times. Every since DOMA reared its ugly head in the Clinton Admin, trans people have been screaming at the top of their lungs on how we can be used to fight this issue, but the leadership of the GL community back then thought of us as nothing more then "men in dresses," and didn't even recognize trans men.

Our legal same-sex marriages should have been the wedge to show how stupid these laws really are and how they cannot work. Some of this I mentioned in my recent article here on Bilerico, "Can We Really Define 'Man and Woman'?"

Even today, the leadership in various places where this fight is still taking place, including California, have not asked the trans community how we can help. I did my damnness to get Georgia Equality to listen to my suggestions, but the leadership at the time thought they had all the answers and today we have an amendment to our state constitution that bans same-sex marriage because of their unwillingness to at least try something out of the "box."

Good article. Poor timing. Sorry.

With crap like this hitting the media circus today, it's going to get tougher to fly under that radar... AP: VA Says Groom and "Bride" Deceived Local Officials

Actually, it is all that bleak. The Kantaras ruling was overturned on appeal, and didn't the Fundies crow about that. The Florida Supreme Court refused to hear the matter.

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Wouldn't this all be so much simpler if marriages didn't require anyone to state their gender? I mean, they don't ask about race, religion, ethnicity, or anything else, at least in the US.

While trans marriage issues have been discussed a couple times lately, I don't think adding another perspective is going to hurt, Monica.

I'd be interested to know of any specific cases from Canada, Mercedes.

This has nothing to do with a new "perspective" on transgender marriages. I got the impression that this was presented as a novel new idea of "Hey, maybe our marriages can help same-sex marriages." It's not a novel or new idea. Not only that, the only GL people who will listen to this is the opened-minded ones on this list.

Monica, I didn't mean to suggest that this discussion is new, only that I don't see it out there at the moment.

That part I can agree with. It's just that I have had the bad experience of beating my head against a brick wall on this issue. The people I tried to work with at the time thought that same-sex marriage was a gay and lesbian issue only. "We'll include trans people . . . unless the issue of marriage comes up and trans people don't count." That's the attitude I got. I suppose that if anyone can convince gays and lesbians on this, it could be you.