Sadly, the Beaties filed for divorce in March. That is sad news for them and their children, but the ramifications of this divorce and the legal precedent it could set might be sad for a lot more people. Here’s the problem:
Unexpectedly, on June 26, 2012, Judge Douglas Gerlach, the Maricopa County Superior Court judge overseeing the matter, vacated the final trial date and put the divorce on hold. The judge backpedaled from what seemed to be the course for a normal divorce case to issuing a Nunc Pro Tunc Order challenging the jurisdiction and validity of the Beaties’ marriage and Thomas’ male identity. Due to the fact that Thomas chose to use his reproductive organs and give birth to his children, the judge potentially sees their marriage as a same-sex union.
That a judge might seek to annul a marriage between a trans and cis person is not new news. That has happened before – too many times. The difference here is the issue of how Beatie’s legal maleness is being challenged precisely because he gave birth to his own children. And while essentialists the world over locate female-ness in the ability to give birth, there are too many reproductive technologies available (and more coming!) which will further distance birth from being female.
Of course same sex marriage legalization everywhere would resolve an awful lot of this pretty much overnight. But until then, trans people have to face the idea that a government can legally declare their sex invalid based on their roles as spouses and parents.
Because many of us are very, very worried – and feminists should be especially – if we start setting legal precedent by pairing childbirth and femaleness.