Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, March 15, 2010

Gender Determined at Birth or by Birth Certificate?

The latest news story on the question of whether gender (for marriage purposes) is determined at birth or by what is recorded on the birth certificate:

Danielle Pauline Severson takes female hormones, dresses and acts like a woman and plans to have sex reassignment surgery so she physically looks like a woman.

Yet the pre-operative transgender female, who was born Dana Paul Severson, will have to tie the knot to a woman in California.

After being jilted by officials in Nevada—which bills itself as the wedding capital of the world—Severson and Rebecca Love were granted a marriage license Wednesday by officials in Severson's hometown of Redding, Calif.

While both states prohibit same-sex marriage, officials in California said the two qualified for the license because Severson's birth certificate lists her as a man. But officials in Nevada nixed the request, saying they consider Severson a woman because that's what her driver's license says.

Shannon Minter, legal director at the National Center for Lesbian Rights in San Francisco, said the circumstances of the case are unique.

But he said transgender people are often caught between conflicting state laws and policies about how to determine a person's gender.

"The same person may be considered legally a male in one state and legally female in another," Minter said. "This is a very painful and confusing situation for trans people."

Shasta County (Calif.) Clerk Cathy Darling said her office issued the marriage license only after consulting with the California Department of Health.

"The state told us to reference the birth certificate," she said. "It's a legal gray area. State law doesn't speak to this."

"There's case law to support that the gender of an individual at birth remains that person's gender regardless of what procedures are taken," he said. "But there's case law to support that at a certain point in this procedure the gender of an individual would change."

Lee Rowland, attorney for the American Civil Liberties Union in Nevada, said her group is determined to do away with statewide bans on same-sex marriages.

"Until that day comes, however, we believe it is appropriate for clerks to rely on the gender on a government-issued ID to avoid the risk of invasively investigating someone's gender," she said.

Read more here.


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