I’m hoping that this talk was recorded as planned and so will be available on Penn State Dickinson School of Law’s website, eventually, because there were a lot of interesting questions discussed in the Q&A after I spoke. Prof. Rains also added a lot of useful legal insight.
I started with a kind of preface in order (1) to define terms like transgender, MTF and FTM, and also (2) to explain that while people like drag queens and crossdressers are considered part of the transgender community, discussions about legal marriage issues donâ€™t always or often effect them; that is, this talk concerns people who identify nearer to the transsexual end of things. that said, drag queens are often already gay and so deal with the same marriage discrimination all gay people do, and crossdressers often suffer with the stigma of being perverts, and one of the reasons they are not out is exactly because they donâ€™t want their wives to divorce them, or lose custody of their children, or lose their jobs, all of which can & does happen to crossdressers who come out.
I never expected that any aspect of my life would cause me to speak at a law school to future lawyers about the odd ways that my life has become complicated by laws about gender and marriage. Iâ€™m surprised two-fold: for starters, I never expected to get married, since as a younger and Very Serious Feminist I saw it as a Tool of Patriarchy, symbolic at least of the ways women have always been chattel, and so, not for me. But I also never expected to get married because I was, starting as a teenager in the late 80s, an ally of gay and lesbian people.
& Then I met Betty, who at the time we met presented as male, and as she likes to explain, we knew, both of us, nearly from the get-go that we were supposed to be together. Itâ€™s a difficult feeling to explain, and poets have tried, but it took us a few years to decide once & for all that we were in this thing together. We decided to get married because things were so easy between us; on our 2nd date we sat together and read, one of us The Nation and the other The New York Times. When youâ€™re something like an old married couple on your 2nd date, you know that youâ€™re doomed.
Two years after that second date we started telling people we were getting legally married, and most people in our lives knew that Betty, while still looking male most days, also dressed in womenâ€™s clothes sometimes. It is amazing how supportive people can be when they like you a lot to start with, and when they have faith that you have, well â€“ a sense of adventure. Iâ€™m still surprised by how surprised my friends werenâ€™t. We went out to clubs then a lot, and Betty identified as something like a straight drag queen at the time. Same sex marriage issues concerned us as allies, but not for us: we were legally a heterosexual couple.
But one friend, a lesbian, was furious with me for planning our wedding. She called me and complained about what a sell-out I was, that I had some nerve taking part in an institution that would treat her as a 2nd class citizen. & While I didnâ€™t want to hear it, I did hear her out; my feminist friends were a bit surprised as well, so I was thinking about why, all of a sudden, this former â€œaltâ€ type would dive feet first into such a conservative institution. So I listened to my lesbian friend, and had her list for me all the things she couldnâ€™t do for her partner if there were ever a medical emergency. She gave me the whole list of things she wasnâ€™t allowed as a lesbian, so let me give it to you:
- LGBT people are not automatically allowed to make medical decisions for their partner.
- no family & medical bereavement leave
- no family health or auto insurance
- canâ€™t share a room in a nursing home
- no dependency benefits
- no guarantee of being notified of arrests or other criminal matters
- no inheritance rights
- no estate guarantee
- no ability to bring wrongful death suits
- & of course, as so many comedians have joked, thereâ€™s no divorce law.
Okay, I lied. Thatâ€™s not all of them. Thereâ€™s about a 1000 more federal protections that only legally married people have, & as of right now, marriage is only reserved for heterosexual people.
And by a legal loophole, us.
While my friend went on with her list, and grew more & more angry, I grew more & more frightened. Emergency rooms? Death? No shared health insurance? (I mean we are both artists, so health insurance is a miracle as is.)
And of course when I pictured these possibilities in my head, I didnâ€™t picture my handsome boyfriend, lead actor. No. I pictured my husband as his female self, dressed to pass as a woman. And I realized, in about a heartbeat, that we had to get married: if a lesbian wasnâ€™t necessarily allowed to make medical decisions for her partner, I had better have some kind of legal ability to assert that that person was my husband, despite the dress, for fear of what kind of treatment she might receive if I werenâ€™t there. Because prejudiced against them or not, people know lesbian couples exist, at least, but a male-bodied person who presents as female is, to most people, absolutely & incorrigibly gay, & so could never be married to a woman. Except that many of them are.
So in a sense I can admit, feeling somewhat guilty, that it was my lesbian friendâ€™s ire at her inability to legally marry her own partner that convinced me, once & for all, that Betty and I had to get legally married.
So we did. We went to City Hall, since at the very least, I thought, we could avoid at least that huge mixup of Church & State that is marriage in the US.
I didnâ€™t expect at that time to find myself half of a couple that people saw as a lesbian couple. I didnâ€™t worry so much then about Betty being assumed to be female about 95% of the time or about the 5% of times that sheâ€™s clocked, or read as male, or formerly male, or whatever it is people think theyâ€™ve discovered when they declare sheâ€™s â€œreallyâ€ a guy.
But they do.
And unfortunately for trans people right now, thatâ€™s exactly what judges get to decide when a trans person comes into court to resolve an issue involving marriage or divorce or child custody or estate inheritance. They get to decide whether that trans person is really the sex they were born, or the gender identity they live in.
And they do so by asking an awful lot of very personal questions. Not just the genital one â€“ thatâ€™s almost impersonal comparatively speaking â€“ but they are asked whether or not they can have a â€œfulfilling sex lifeâ€ with their opposite sex partner.
But first let me back up and explain that last phrase: When I say â€œa trans person and their opposite sex partnerâ€ I mean a trans man, or FTM, a person born with a female body who lives as male, and his female partner. I donâ€™t mean Betty and me: we are seen as â€œa trans person and her same sex partnerâ€ by my language. Because I work within the trans community I respect the personâ€™s own gender identity: not their legal status, not what people decide the person in question â€œreallyâ€ is, but simply, what gender they are living as and prefer to be considered.
In the case of Michael Kantaras who was married to a woman and was co-parenting with her, you see, he was asked, pretty much, if he could sexually satisfy his legal wife, and whether or not he had had the kind of genital surgery that would allow him to. He was also asked if he could pee standing up and what sexual positions they engaged in. And he was asked all this because he was getting a divorce.
And as you all well know, those questions are not on the usual list of questions for a soon to be ex husband. (Okay, one of them is, sometimes.) But in Kantarasâ€™ case, his legal identity as male was being called into question in order that the judge could determine whether or not that their marriage was ever valid in the first place, which is rarely the question before a judge when people who are not trans are getting a divorce.
Kantaras was ruled not male enough to be a father to his children or to have been a husband to his wife. But simultaneously â€“ remember, this is a person who had lived for years as a man â€“ he couldnâ€™t legally marry a man, either, after that ruling
If he had born in Texas, he could have married a man legally, however, because the state of Texas doesnâ€™t recognize any gender change. Sadly, Christie Lee Littleton only found that out when she tried to get some justice for her deceased husband, who she felt had died as a result of medical malpractice. What she found instead was that the state of Texas did not consider her a woman, and her marriage was invalid, and that she had no right to pursue justice for her loved one at all. Trans women and their female partners can get legally married in Texas, as can trans men and their male partners. Iâ€™m not kidding.
From the Transgender Rights Reader: â€œIn a rare example where two â€œwrongsâ€ actually do make a â€œright,â€ when the ban against same sex marriage is combined with the ruling that a trans individual cannot legally change her birth sex, the result is that gay trans people can legally marry their same sex partners. Not long after the ruling in Littleton, the Texas papers ran numerous stories of same sex couples, one of whom is transgender, who had decided to marry legally.â€
If Michael Kantaras had had a specific kind of genital surgery, which can cost something like $100k, he might have been declared legally male and so legally married and legally divorced. In fact, in a different case, Joshua Vecchione was ruled male and able to marry his female partner and retain custody of their children, and the only difference was that Vecchione was declared male, instead. Their histories as trans men were nearly identical: they had both changed gender before marriage, married women who knew they were trans, and both used their own brothers as sperm donors. But in California, where Vecchioneâ€™s case was tried, the state does recognize a change of gender. And Vecchione had had a phalloplasty, which is one kind of genital surgery trans men can have but that most donâ€™t prefer because itâ€™s expensive and sometimes medically dangerous.
Most of these issues would be less complicated and actually resolved overnight if same sex marriage were legal, but Iâ€™m pretty sure Massachusetts doesnâ€™t have enough room for the entire trans population, either. If that were some kind of solution that would be okay for the interim, maybe, but itâ€™s not, because making same sex marriage legal would only resolve some of the problem. The issues of trans people and marriage are not just about whether a state recognizes a change of gender; it also depends on what a person has to do to qualify for a gender marker change on their birth certificate when the state does allow for that change. Whether a trans personâ€™s marriage is considered legal depends on whether or not the person transitions before or after marriage. It depends on whether that person is married to or wants to marry someone who would be their â€œoppositeâ€ or â€œsameâ€ sex after transition. Add that to whether or not the state they were born in will change a birth certificate, whether that state recognizes anotherâ€™s stateâ€™s decision to do so, and then throw in whether or not the state recognizes same sex marriage, and you have a situation where Betty and I, simply by stepping on the PATH train that goes from New York to New Jersey, can be married and then not married, somewhere midway across the Hudson River, which is somewhere around the perimeter of the Statue of Liberty.
The reality for me and Betty is that we are legally married in every state right now since Betty is legally male and we have the paperwork to prove it. While we have no children and donâ€™t want a divorce, weâ€™re just fine as we are. With the outside exception of some groups who find people like us an abomination, no one is looking to keep us from being legally married lesbians. Thankfully. Because I’ve been through quite enough change for a lifetime already, thank you very much.
That said, we have trans women friends who donâ€™t change their gender markers on their ID cards exactly because they are lesbian-identified after transitioning, and they figure they should and will legally marry women if they want to. Betty has an M on her license, and you know, going through airports is hard enough right now without her having to explain how much sheâ€™s changed in the past years. To their credit, most of the ID checkers at major airports are quite good about the difference between her ID and her appearance; I like to joke that the one thing she canâ€™t do is get a nosejob or they wonâ€™t see anything that looks the same at all. When we get on Amtrak, she travels as â€œMs.â€ and is occasionally asked for her ID as well, which again â€“ most people are cool with. But we never know and always expect someone whoâ€™s having a bad day to hassle her and ask loudly why sheâ€™s M on her ID and â€œMs.â€ on her train ticket.
Being outed like that, in a public place, is always terrifying, because you donâ€™t always want to rely on the kindness â€“ or tolerance â€“ or education â€“ of strangers.
And the thing is, weâ€™re us. We do things like come to law schools and talk about this stuff. Weâ€™re not shy about it. But we hate that we have to do it, and every time we think of the million people who arenâ€™t out, who try to live their lives quietly, or have to travel with children, or a spouse who is having a hard time adjusting, we think that there must be some way to resolve all of these problems.
When it comes to marriage, of course, making same sex marriage legal would resolve an awful lot.
Respecting a personâ€™s gender identity as they live it would help a lot too.
But as we all know, the issues with identity cards, including the Real ID Act, are not just affecting trans people, though they can affect trans people in discriminatory and embarrassing ways. The Social Security Administration sometimes uses gender as a way of making sure the person registered under a name and number is the same person as the person working with that name and number, but since itâ€™s difficult to get the gender marker changed on Social Security cards, as well as passports, trans employees get â€œoutedâ€ by the Agency. The SSA might have a â€œJoseph Fordâ€ listed under a number who had been working happily as â€œJohanna Fordâ€ at a company where no one knew she had been identified as male at birth. Depending on the sensitivity and education of the HR admins, she could wind up outed to all her co-workers, or in states without employment discrimination protections in place â€“ and there are still plenty â€“ she could lose her job simply for being trans, just like Steve Stanton did in Florida.
When a trans woman gets older, her wife â€“ who by whatever grace and courage made it through transition with her formerly male husband â€“ might not be able to receive death benefits, or the trans woman herself might not be able to collect her very own retirement payments.
So in some cases, for someone like Betty, and for many married MTFs we know, the choice is between keeping an M on her ID in order not to risk our marriage, health insurance, and the like, and to deal with occasional and scary hassles that a mismatch in gender presentation and ID marker can bring. Or she can change enough of her ID, like her license, in order to minimize the day to day hassles but then end up with mismatched identity documents. Sheâ€™d probably need to have genital surgery she doesnâ€™t want & canâ€™t afford in order to get her Social Security card and Passport changed, and even in the case that she can get everything changed, sheâ€™d still run the risk of having the Federal government and a few states decide that what she did doesnâ€™t matter anyway and that they will always consider her a man.
And for the guys, that surgery can cause medical complications that would make you all wince if I described them. Requiring surgery that is not only expensive but discriminatory â€“ because technology has enabled better genital surgery for trans women than for trans men â€“ is deeply flawed logic. Telling people what sex they are based on their genitals is as well. So are chromosomal tests, because there are so many exceptions (so many, in fact, that the Olympics have stopped testing athleteâ€™s XX/XY configurations). Itâ€™s also deeply problematic that even with surgery, different local governments rule differently in terms of identity documents: for instance, until recently trans people born in New York City couldnâ€™t change their gender marker on their birth certificate at all; they could only get them erased, which certainly stood out when someone needed to present that document to an employer.
And in each of these cases, regular legal issues like divorce become a complete mess. So far weâ€™re going only by case law and precedents.
Now imagine that trans people have children, because they do. They have them biologically, before they transition, and they adopt them, and they have them by AI with a partner, and they marry into parenthood by marrying someone with children. And imagine the boatload of complications in custody cases where trans people â€“ who are already vulnerable to discrimination just because theyâ€™re trans â€“ are kept from their children. Even when they are the biological parents of a child, their visitation and custody has been denied, as in the case of a trans woman who was not only restricted from contact, but who was told she could not live with another trans person nor sleep with women if she wanted to continue seeing her children. Children who wanted to stay with their father who had transitioned were told that they couldnâ€™t by one judge.
Betty and I are lucky not to have children and never to have wanted any. We prefer cats. We also have legal recognition of our marriage because Betty has chosen to keep an M on her license for our sake as a couple. But we live in New York, and we have friends and employers and clients and family who understand we didnâ€™t choose this, and that we are doing the best we can with an unusual and tricky hand of cards. Our lives are â€“ besides a few contracts â€“ remarkably free of legal issues. And while we donâ€™t know that someone canâ€™t come along and decide our marriage is illegal â€“ all of the cases I’ve mentioned involve some degree of separation, divorce, and custody â€“ we really donâ€™t know that things will stay this way. We choose to take risks because there isnâ€™t as much risk for us as for others, who live in states without protections, states that donâ€™t respect even civil unions, states that have no gender identity protections in place and where the culture is much more restrictive. We may still worry about Betty being clocked as male by someone who doesnâ€™t know about transness and simultaneously worry about people who donâ€™t like lesbians, but legally, weâ€™re safer than most. And unless someone gets up and does this, too many trans people will be outed during a divorce, will not get custody or even visitation of their biological children, or will be told their marriage can not, will not, or never did exist. And we do it, too, because we have been able to take advantage of a loophole, that is based on a strange intersection of legislation and heterosexual privilege, which our LGB friends arenâ€™t afforded.