How do courts applying state law that requires “one man and one woman” for the validity of marriage look at marriages in which one of the parties has transitioned genders?
That’s an issue one of our CUNY Law alums, Alana Chazan (pictured), just litigated in California. While California, of course, now recognizes same-sex marriages so that gender should not have been an issue at all, the marriage at issue occurred in Louisiana, a state that does not recognize same-sex marriages.
Superior Court Judge Gould-Saltman, in the Statement of Decision in Miller v. Angel considered the full faith and credit clause implications not only of the Louisiana marriage, but also of the California judgment that the petitioner was male, entered in 1998, years before the 2003 marriage. In essence, the judge rules, that California judgment was good enough for a driver’s license and it is good enough for a marriage license, arguments that there needed to be a birth certificate notwithstanding. The judge added that the putative spouse theory had relevance because the parties intended to be married to each other.
Why all the fuss about the validity of the marriage? There’s an underlying property dispute.
I considered similar issues almost a decade ago in an essay Reinscribing Normality? The Law and Politics of Transgender Marriage published in the anthology Transgender Rights edited by Brooklyn College Professor Paisley Currah, Shannon Minter, and Richard Juang. (A version also appeared in Hypatia as A Mere Switch or a Fundamental Change? Theorizing Transgender Marriage and is available here). The article analyzes the cases, their rhetoric, and also the lawyering choices that can pit individual interests against theoretical positions. And though I don’t generally list my own work on a class syllabus, this is one that I’ve made optional in Sexuality and the Law for many years.
And how nice to get a note with the opinion from one of the former students in the class who used the article to win a case.
Though how odd that such cases are still being litigated.