|Posted on November 14, 2011 at 11:50 PM|
Marriage Validity of Transgenders
By: Rivka Israel, Esq.
Recently, I have been approached repeatedly with inquiries regarding the validity of marriages of Transgender individuals. Thus, it has been brought to my attention that this is an area of concern and interest about which there is not a lot of information available. The issue is actually a lot less complicated than it would appear to be and depends a great deal on when the transition took place.
Some transgender people marry an individual of the opposite gender and subsequently undergo sex-reassignment. This results in a married couple who are of the same gender. Cases have been brought in several states including New Jersey, Louisiana, Florida, and here in California, among others, attempting to invalidate such marriages. Thus far such cases have not ultimately been successful. This is because it is a well established legal principle that the validity of a marriage is determined at the time the marriage is entered into and valid marriages will not be invalidated retroactively. As these marriages are presumptively valid, the burden of proof falls upon the person wishing to challenge the validity of these marriages.
When one enters into a legally recognized relationship, either by marriage, civil union, or domestic partnership, the status of the validity of that relationship is determined at the time the relationship is entered into. Therefore, if a couple enters into a heterosexual marriage and one of the spouses subsequently transitions to the opposite gender, as long as that relationship was valid prior to the transition (i.e. at the time the marriage was entered into), the marriage will remain valid after the transition. On the other hand, some states will not recognize, for the purposes of marriage, the new gender of someone who has undergone sex-reassignment and therefore will not recognize the validity of what would appear to be a heterosexual couple in which one of the parties had previously undergone sex-reassignment unless that state recognizes same-sex marriages.
Here in California, the validity of a marriage is determined at the time the marriage is entered into and is based on statutory law, Family Code Sections 300 et seq. and 308. This very issue was raised in an Orange County case in 1998 in which the Court held that the marriage between a woman and her transsexual husband was valid. Of course, the timing of the transition can be crucial in marriage cases. For example, if a male-to-female transsexual marries a female after the November 5, 2008 cut-off date, the marriage will be recognized as a legitimate legal relationship but will not be recognized as a marriage due to the passing of Proposition 8. This is due to the fact that California recognizes the new gender of an individual who has undergone sex-reassignment for all purposes, including marriage.
Because the validity of transgender and same-sex couples marriages is not settled or consistent across the board it is very important that such couples take the additional necessary steps to protect their families by drafting legal documents that document their desires and intentions regarding their families such as Advanced Health Care Directives, co-parenting agreements, Wills, and HIPAA directives, to name just a few. This area of the law is constantly changing and I encourage the readers of this article to subscribe to my blog or follow my Facebook or Twitter feeds to stay up to date on those changes. I also encourage readers to submit questions and/or suggestions for article subjects to me and I will try to address those issues in ongoing blogs or articles.
Rivka Israel, Esq. isa local Family Law attorney and can be reached at LavenderLegal@yahoo.com, by telephone at 858- IT’S-EASY (487-3279) or on the web at FamilyLegalEase.com