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Transgender Legal Advisor
Legal Transsexual Marriage
By Carolyn Woodward
Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her via Email at Carolyn75@aol.com or message publisher Cindy Martin and we'll make sure she gets your question.
Well, here I am again, pounding away at the keyboard at the last minute,
still debating what I'm going to write about. I can't help it, I've got one
of those brains that will take a thought and follow it anywhere. On the one
hand, I run across all sorts of interesting things. On the other, it can be
hard to decide what to write about. (I'm an ambidextrous Libra, too -
coincidence or not?) I've been mulling over two subjects and wondering which
to write about. I did finally solve the problem, I'm going to write about
both, over two months, in the order they came up.
The first topic arises from a question I was asked about the legal status of
post-op transsexuals vis-a-vis marriage. The gentleman in question was (is)
engaged to a post-operative transsexual. The twist was that he is British
and she American. He was concerned about the legal status of their marriage,
particularly if they moved to England. (England will not let a TS change her
birth certificate or recognize her as a woman. I use MTF references here
because that's the situation posed, but it works both ways - or doesn't
work.)
Well, I can't speak for England as a matter of certainty, but I haven't
really heard of any place which will not recognize a marriage considered
valid where it was created. In the United States this is a matter of
certainty, however. The Full Faith and Credit Clause of the Constitution
dictates that such is the case. What one state does shall be recognized by
other states. This is a bit of a simplification, please keep in mind.
Nothing in law is ever THAT straightforward - if it were there would be
nothing for us lawyers to fight about. ;-)
Consider this example. In California, a marriage can not be created by common law means. A couple
can live together and hold themselves out as husband and wife for decades and
California will NOT consider them married. You have to have a license and a
ceremony by someone authorized to perform marriages. (It is called
solemnization.) However, in Utah a couple CAN create a common law marriage
by getting a license, cohabiting, and holding themselves out to the world as
husband and wife. If they do this for six months (if memory serves) then
they are considered married. If they move to California, then they are still
considered married because it was a valid marriage where it happened, and
California must recognize it as such. It could only be attacked in
California by using the law of the original state. Let's say the husband died
and his sister contests wife's right to community property of the estate by
challenging the validity of the marriage. Sister would have to prove the
marriage was invalid under the laws of Utah, where the marriage came into
being, as the laws existed at the time of the marriage.
What does this mean for our English gentleman and his soon to be wife? Well,
in this country they are fine. After surgery she can get her birth
certificate changed from male to female, and her new staus as female is
recognized. But let's say they managed to find a state which will not change
birth certificates or recognize the new status. The Constitution will still
force that state to recognize this marriage as valid because it was valid
where it came into being. (As an aside, I was looking forward to seeing the
reaction when it looked like same sex marriages were going to become the law
in Hawaii, and people in other states found they HAD to recognize those
marriages.) What if they move to England? Here I had to confess, I'm not
really sure. Other countries have no obligation to recognize the validity of
what happens in the United States, so I had to suggest he consult sources in
England, and if the answer is not what he wants to hear, that they stay here
and remain happily married.
Next month, my other issue, a commentary on Dr. Sheila Kirk's groundbreaking
article on hormone treatment for non-transsexuals (TGForum, week of October
20, 1997), and some of the possible legal issues involved in hormone therapy.
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