Why Trans People Need Marriage Equality, Too

So it turns out that Thomas Beatie is not being granted his divorce, for the worst possible reason: his marriage has been declared invalid, and a marriage that never existed can’t end in divorce.

This is one of the many reasons trans people need marriage equality: so that we do not have to exist in a this legally unclear environment where a judge can decide whether or not we were ever married, even if we were for 20 years, like Christie Lee Littleton was.

That said, Beatie’s case is a little different – not that it does him much good – in that what Beatie had or had not done to establish his identity as male at the time of the marriage was unclear:

“The decision here is not based on the conclusion that this case involves a same-sex marriage merely because one of the parties is a transsexual male, but instead, the decision is compelled by the fact that the parties failed to prove that (Thomas Beatie) was a transsexual male when they were issued their marriage license,” he wrote in Friday’s ruling.

What’s more interesting to me as a gender studies person is this detail:

Beatie is eager to end his marriage, but the couple’s divorce plans stalled last summer when Gerlach said he was unable to find legal authority defining a man as someone who can give birth.

precisely because it involves the definition of a “man” – which, as any good gender studies student knows, is a cultural construct in the first place. (So is male, but far fewer people seem to understand that sex, or biological gender, is also culturally constructed.) As a feminist, I’m particularly concerned when the ability or inability to bear children starts getting involved in definitions of who is or isn’t a woman or a man.

But same sex marriage would, at least in some way, prevent this kind of bullshit at least in part, as it wouldn’t matter if Beatie was or was not a man at the time of his marriage. The issue of whether he could be a man and also give birth to his own children is, effectively, a different issue altogether.

(Interestingly, Beatie lives in AZ, where he could also, very shortly, be facing the fact that he may be legally required to use the ladies’ room, depending on what it does or doesn’t say on his birth certificate.)

Beatie Divorce

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.