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April 29, 2008

What happens when a person transitions from male-to-female during marriage?

It really isn't clear.  In conservative states, the answer tends to be:  once a man, always a man.  In that case, the marriage would remain valid in spite of rules against same-sex marriage.  See, e.g., Littleton v. Prange, 9 S.W.3d 223 (Tex. App.--San Antonio 1999).

In other (liberal) states, like New Jersey, where courts recognize a sex change when the person's psychological sex matches their physical sex, see M.T. v. J.T., 355 A.2d 204 (N.J. 1976), the answer is murky.  In these states, courts would prefer not to rule that the marriage is invalid by recognizing the sex change.  (Of course, in Massachussetts, where same sex marriage is legal, this would not create a problem.)

The issue came up once again because one member of a couple (the Brunners) living in New Jersey transitioned from male-to-female during marriage.  In New Jersey, courts would recognize Denise Brunner as her new sex because now her physical characteristics match her psychological sex.  However, although civil unions are available in New Jersey, same sex marriage is not. In the eyes of the Brunners, to convert their marriage to a same-sex union would be a "downgrading of their relationship".  See New York Times Article entitled "Through Sickness, Health, and Sex Change" (April 27, 2008).  So, where does that currently leave them?  With a marriage that could be characterized as a same sex marriage (if challenged).

April 29, 2008 | Permalink

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Comments

"In these states, courts would prefer not to rule that the marriage is invalid by recognizing the sex change."

In states without any legislation describing marriage as "between a man and a woman", I think courts would say that a marriage of any two individuals is a contract, and these individuals' gender identification doesn't make them different people. They would be as subject to that contract as before.

If states with such 'man-woman' laws also recognized sex changes, though, they would be in a bit of a pickle.

Posted by: Brian | May 3, 2008 6:00:37 PM

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