- Can transgender people in different-sex relationships get married?
- How do you know if you’re marrying in a trans-friendly state?
- Does the federal Defense of Marriage Act (DOMA) affect the marriages of transgender spouses?
- Can courts invalidate the marriage of a transgender surviving spouse?
- Is a marriage still valid if one spouse transitions later on?
- If my partner and I are getting married and one or both of us is transgender, are there legal steps we can take for further legal protection?
- What steps can I take to safeguard my relationship with my child?
- What is the current status of federal immigration policy with respect to transgender spouses?
- THE BASICS: Gender Identity & Marriage Law
A: For a quick breakdown about transgender spouses and marriage law, see "The Basics: Gender Identity and Marriage Law," below.
Some courts have ruled that transgender people cannot marry, usually by relying upon bans against marriage for same-sex couples and some states’ refusals to acknowledge gender transition. But marriage has been deemed by the Supreme Court as a fundamental right under the Constitution. And many states recognize that the sex you are assigned at birth is not a permanent stamp of who you are, allowing transgender people to amend or correct their birth certificates.
In the 2012 case of Radke v. Miscellaneous Drivers & Helpers, a Minnesota court found that the marriage between a transgender woman (Christie) and her husband was valid at the time it was entered into because Christie had legally amended her birth certificate to reflect her female gender identity and, as a result, was eligible to be married to a man under Minnesota law. Christie’s husband’s health insurance company had denied her access to spousal health care, citing a prohibition on marriage for same-sex couples in Minnesota. The court overturned the company’s decision, however, stating that it was “not the [company’s] role to impose its own definition of gender and marriage upon its participants” but instead, that under state law they were obligated to respect both Christie’s birth certificate amendment and her marriage.
Another transgender-friendly marriage ruling came in the 1970s in New Jersey. M.T. v J.T. involved a transgender woman (M.T.), who married a non-transgender man (J.T.) shortly after she had sex reassignment surgery, and lived with him for two years until he moved out. When she filed a complaint seeking support and maintenance, J.T. claimed M.T. was a male and that their marriage was therefore void. But M.T. won the case because the court perceived “no legal barrier, cognizable social taboo, or reason grounded in public policy” that she should not be recognized as female.
More recent was 1997’s Vecchione v. Vecchione, in which a California court refused to annul a post-transition different-sex marriage (in such marriages, one or both partners have already transitioned) because “California recognizes the post-operative gender of a transgendered person.”
The cases above relied on surgical standards to determine someone’s gender—which is far from ideal. There is nothing rational about requiring that some-one undergo surgery in order to have their gender identity officially recognized and be able to marry. Transition is not a one-size-fits-all experience; it’s an individualized assessment between the transgender person and their doctor. Sex reassignment surgery (SRS) has been widely rejected as a requirement for gender marker changes on official documents, by the medical community and even by the federal government: In 2010, the U.S. State Department removed the requirement that a person must undergo sex reassignment surgery in order to change the gender marker on their passport. Now, passport officials look to what is “appropriate clinical treatment” for that person. Three states (WA, VT, CA) have since removed surgical requirements for changing gender markers on birth certificates, with more states expected to follow soon. In 2010, the World Professional Association for Transgender Health (WPATH) urged governments and other authoritative bodies to move to eliminate requirements for identity recognition that require surgical procedure.
Despite the surgical requirement in these cases, however, both M.T. v J.T. and Vecchione v. Vecchione did affirm that transgender people can marry as long as they meet a state’s requirements for gender marker change on a birth certificate. This is especially important as a precedent because it protects transgender people who come from states or countries that refuse to allow for change in gender marker on a birth certificate. If those people live in a state that does allow those changes and they can meet that state’s requirements, their marriage should be recognized.
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Q. How do you know if you’re marrying in a trans-friendly state?
A: If you live in a jurisdiction where same-sex couples may marry, it doesn’t matter what gender you or your loved one happen to be. You can marry the person you love and your gender identity and assigned sex are not relevant.
If you live in a state where same-sex couples may not marry, you may have more trouble. If you are in a different-sex couple—for example a transgender man who is married to a non-transgender woman—the validity of your marriage under state law depends on whether the government respects your gender identity. You are generally allowed to marry if you have made every possible effort to document a gender transition, whether that’s changing a birth certificate or taking medical steps in one’s transition. On the other hand, courts in Texas and Kansas have ruled in marriage cases that no amount of surgery, document changes or time spent living in accordance with one’s gender identity is enough to alter a person’s gender in the eyes of the law.
If you get married in a state that permits same-sex couples to marry and you live in a state that does not, and your relationship may be described as same-sex under state law, you may still access at least some federal protections, benefits, rights and responsibilities now that the federal law known as the Defense of Marriage Act (DOMA) has been struck down (for more, visit www.lambdalegal.org/publications/after-DOMA).
A: No. In 2013, the Supreme Court struck down as unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage for the purpose of federal recognition as a “legal union between one man and one woman” and stated that “the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Even prior to this historic victory, the federal government consistently found that legally married different-sex couples, where one partner has subsequently transitioned, are still entitled to the same spousal benefits as couples who are and remain “opposite sex” in the traditional sense throughout their marriage.
The U.S. Office of Personnel Management has directly addressed this issue in its “Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace”: “If the employees in transition are validly married at the time of the transition, the transition does not affect the validity of that marriage, and spousal coverage should be extended or continued even though the employee in transition has a new name and gender.”
Other federal agencies that have drawn the same conclusion include the Social Security Administration (SSA), the Board of Immigration Appeals (BIA) and the Internal Revenue Service (“IRS”) as well as the United States Navy.
For more information about federal respect for marriages of couples whose relationships could be described as "same-sex" under state law at the outset, see www.lambdalegal.org/publications/after-DOMA.
A: Two of the most fiercely bigoted anti-transgender court rulings have involved transgender women whose different-sex marriages were invalidated after the death of a non-transgender spouse.
The first such case in Texas involved a transgender woman who filed a wrongful death suit after her husband died from what she said was an overlooked blood clot. The court in Littleton v. Prange refused to recognize Christie Lee Littleton as a woman because her birth certificate said she was male. The court held that because Littleton was born male, her marriage to her husband had never been legally valid, because same-sex couples cannot marry in Texas.
The 1999 ruling was disturbing not just because it ignored Littleton’s gender identity but for its hostile language: “She has made every conceivable effort to make herself a female, including a surgery that would make most males pale and perspire to contemplate… Her female anatomy, however, is all man-made.”
The language in the second case, Kansas’s 2002 decision in In re Estate of Gardiner, was equally bad: “The body [she] inhabits is a male body in all aspects other than what the physicians have supplied.” Therefore, “as a matter of law, she…is a male.”
Lambda Legal submitted a friend-of-the-court brief in Gardiner but the Kansas Supreme Court nevertheless ruled against the validity of the transwoman’s marriage by declining to recognize the gender marker change on her Wisconsin birth certificate—and relying on a Kansas statute limiting marriage to different-sex couples.
A: For a quick breakdown about transgender spouses and marriage law, see "The Basics: Gender Identity and Marriage Law," below.
Marriages remain valid if they were valid at the time they were entered into. The government cannot retroactively invalidate a marriage because of a change in eligibility criteria that occurs after the marriage is entered into.
It’s an important principle to defend, especially in the face of openly anti-transgender policies and sentiments. That was the situation, for example, in 2007 when Lambda Legal represented a transgender man in a Florida alimony case known as Roach v. Roach n.k.a. Silverwolf. Julio Silverwolf (formerly Julia Roach) transitioned from female to male after 18 years of marriage to Lawrence Roach.
When the couple were divorcing, Roach argued that he shouldn’t have to pay alimony because Silverwolf was “legally dead” as a result of his transition and because Florida does not recognize marriages of same-sex couples. But the court upheld the alimony agreement, basing its ruling on the determination that the marriage was valid at the time it was entered into.
A: Yes. These are documents you can execute:
- Power of attorney
- Health care proxy
- Living will
- HIPAA release
- Guardianship/custody agreement or second-parent adoption (if kids are involved)
- Prenuptial agreement specifying that both parties are aware of each other’s gender status
- Also: It’s helpful to have your identity documents (such as your birth certificate, driver’s license or passport) changed to reflect your gender identity, but rules for changing ID gender vary from state to state. For more information about changing identity documents, see www.lambdalegal.org/publications/sources-of-authority-to-amend.
A: Documenting your intentions for a child through a will, adoption, guardianship and/or other legal documents and proceedings is especially important when a parent is transgender; couples should also consider writing up a statement of intention. Parental rights can be very hard to defend in court once they’re challenged, whether as part of divorce or custody proceedings or because of sheer discrimination.
To see our FAQ for transgender parents, click here.
A: Now that DOMA has been struck down, a transgender person's marriage will receive federal respect for immigration purposes without regard to whether it can be described as a "same-sex" relationship under state law at the time it was entered into, as long as the marriage occurred in a state that permits same-sex couples the freedom to marry, or the District of Columbia.
When a transgender person marries someone of a different sex in a state that prohibits same-sex couples from marrying, the following clarification form the Obama Administration may be relevant:
- A marriage of a transgender is presumed to be valid when there are no laws or precedents questioning its validity. Marriage benefits will be approved where a transgender individual has legally changed his or her gender and subsequently married a person of the other gender (i.e. a transgender man marries a cisgender woman); the marriage is seen as a heterosexual marriage under the law where the marriage took place; and the law where the marriage took place does not bar a marriage between a transgender person and a person of the other gender.
- When determining whether a marriage is different sex, the USCIS no longer requires proof of surgery. Instead, a transgender person can show an amended birth certificate or other official recognition of the corrected gender such as passport, court order, naturalization certificate or in some cases a driver’s license; or medical certification from a licensed physician (M.D. or D.O.) certifying that the individual has had appropriate clinical treatment using guidelines issued by the World Professional Association for Transgender Health (WPATH). (For more about WPATH’s Standards of Care, please see our “Transtion-Related Health Care” fact sheet, dowloadable here: www.lambdalegal.org/publications/trt_transition-related-health-care)
Talk to an immigration lawyer or contact Immigration Equality (www.immigrationequality.org) if your marriage or immigration status might be affected by these policies.
If you transition BEFORE getting married…
- and you and your partner's gender identities are DIFFERENT-SEX the validity of your marriage depends on your state. But generally you can marry if you meet your state’s requirement for gender marker change on your birth certificate. New Jersey, Minnesota and California courts have recognized the gender identity of transgender spouses and affirmed the validity of their marriages to different-sex spouses. However, some states refuse to allow gender-marker changes on birth certificates and do not legally recognize gender transition.
- and you and your partner's gender identities are SAME-SEX, you may marry and receive respect for your marriage in those jurisdictions that issue marriage licenses to same-sex couples. In addition, your marriage will receive respect in New Mexico. Also, you may receive some or all federal benefits, rights and responsibilities depending in which state you live.
If you transition AFTER getting married…
- and you and your partner's gender identities are DIFFERENT-SEX, your marriage will be respected in all jurisdictions that respect marriages of same-sex couples and you may have arguments for respect in other states depending on a number of factors, including whether your state of residence legally recognizes your gender transition in this context.
- and you and your partner's gender identities are SAME-SEX, your marriage should receive respect, as it was valid when you entered into it, and there is some legal precedent to support this.
FOR MORE INFORMATION: Contact Lambda Legal at 212-809-8585, 120 Wall Street, Suite 1900, New York, NY 10005-3919. If you feel you have experienced discrimination, call our Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.