Another Complication in Marriage Laws

Kelly Francis gives her own woman lawyer's perspective on a recent New York Times Op-Ed piece by Jennifer Finney Boylan that explores: "Is My Marriage Gay?"

Last week Maine became the fifth state in the union to legalize gay marriage. As Boylan points out however, it is likely that there are a number of legal "gay" marriages even in states which have not legalized such unions. These are marriages such as Boylan's, in which one partner has undergone a gender transformation.

Confounding the problem that many states do not recognize gay marriages, is the problem that some states do not recognize sex changes. As Boylan points out, had she divorced her partner after her transformation (and prior to the legalization of gay marriage in Maine) she would have been allowed to marry only a male partner in Maine, which recognizes sex changes, but only a female partner in Ohio, which does not.

Boylan goes on to discuss the case of J'noel Gardiner from Kansas who, though anatomically female, was denied her husband's inheritance on the grounds that her marriage to another man was invalid.

Part of the problem stems from contradictions in how we define gender. Some decisions are based on the presence or absence of chromosomes, while some are based on anatomy and physical characteristics.

It has been argued that discrimination against GLBT individuals is an extension of sexism. We expect men and women to behave according to pre-established gender roles. Effeminate men and aggressive women cause a great deal of discomfort, sexual orientation aside. The continuing confusion is a direct result of our stubborn insistence on pegging individuals into one category or the other: Male or Female. In reality however, it would appear that gender exists along a spectrum, with individuals displaying different traits, with different intensities all along that spectrum. In some ways, further acceptance of these variances can lead to more freedom for men and women who still feel confined by traditional stereotypes of what it means to be a man or a woman.

Quoting directly from Boylan's article on the absurdity of the country's gender laws, a lawyer for a transgendered plaintiff in San Antonio put it this way:

“Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”