Marriage for transsexuals has always been problematic. For many years, the counselors and psychologists who were the gatekeepers and held the keys to hormones and surgery required that trans folk divorce prior to beginning their transition (in many cases, people were also encouraged (strongly!) to disown their past entirely, move to a new city and invent a past that was congruent with their new identity). Thankfully, those days are now largely in the past. But serious problems still remain for those who are legally in a heterosexual marriage at the outset of their transition. Obviously, one's spouse has to consent to remaining in the marriage. The vast majority do not. Even when the love is there (as it is for Judi and Mikayla Howden, in this article) and the desire to remain together is there, there are many hurdles. Perhaps the largest of them is suddenly adapting to the idea that one is now in a legally sanctioned same-sex marriage. There is still tremendous social stigma associated with being gay or lesbian despite all the progress we've made in the last few years.
There is a principle in law that is inviolate. The legislature cannot pass a law that makes what you've done in the past illegal in the present. Therefore, once you've legally entered into a marriage, no one but you can break the contract. Even in states where same-sex marriage is specifically prohibited by changes in a state's constitution (for example, in those 11 states which just passed such constitutional amendments), if such a state recognizes the validity of a transition between sexes it is now required to honor your same-sex marriage (should you get divorced, of course, it can then prevent you from re-marrying a person of your new legal sex).
But, of course, it is not quite so clear. In the states of Tennessee, Ohio, Texas, and Kansas, (and, apparently, Florida) for example, transitioning does not give you permission to marry someone of your birth sex. In the Christie Lee Littleton case I mentioned earlier, Mrs. Littleton's birth certificate was re-issued by the state where she was born, reflecting her new sex. The state of Texas refused to honor that and said it was her chromosomes that determined her sex (they never tested her chromosomes, by the way). The US Supreme Court denied cert.
But, then, that seems to offer the option to Mrs. Littleton to marry a woman (were she so inclined). While she looks like a woman, talks like a woman, walks like a woman, has sexual intercourse like woman, has a birth certificate declaring her to be a woman, the state of Texas has said she's a man. Yet, how would she go about marrying a woman in that state? Presumably, I suppose, she could produce the court's opinion that said she was a man and demand the secretary of state issue her a marriage license to marry a woman.
Doesn't this just seem like a whole lot of machinations to keep people with similar chromosomes from legally recognizing their love, commitment and partnership? Does not Mrs. Littleton's re-marriage to another woman have the same deleterious effect upon traditional marriage that the right-wing is so frantic about? I wonder how those people who are so fearful of same-sex marriage and condemning of it on religious grounds would react to such a sanctioned marriage? Or, would they simply deny us any right to marriage, whatsoever?
The state of New Hampshire, where the Howdens live, is one of those states with an indeterminate policy about recognizing a transsexual's new sex. This has left them feeling somewhat vulnerable. Still, it seems to me that as long as their love and their willingness to confront the bigots remains steadfast, the government may not render their marriage invalid. I wish them much peace and happiness.
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