As same-sex marriage issue heats up, trans weddings often seen as the same thing
As gay and lesbian activists in New York and elsewhere press the drive for same-sex marriage rights, the legal standing of transgendered people to marry the partner of their choice and to have existing marriages recognized in law remains a less explored issue.
On the eve of Valentine’s Day, Lancorya Coco Lucas and Louis Angel Rodriguez gathered together 30 family members and friends to celebrate a religious marriage ceremony at the Metropolitan Community Church on Manhattan’s West Side. Rev. Pat Bumgardner presided over a ceremony in which Lucas, a transgendered woman, and her new husband Rodriguez exchanged rings and vows and lit a candle symbolizing their union.
“I couldn’t ask for a better partner to spend the rest of my life with,” Lucas said after the ceremony. “When I met Louis in 1985, I knew he was the one for me.”
Hugh Freeman walked Lucas down the aisle and Coy Gordon served as maid of honor. After the service, Freeman and Gordon joined other members of the wedding party in toasting Lucas and Rodriguez in what was a very happy evening.
Despite the emotional and religious significance of the event, however, Lucas and Rodriguez are not married under New York state law.
The state’s Domestic Relations Law (DRL), the marriage law dating from 1913, does not explicitly prohibit marriages for same-sex couples, or those with a partner who is transgendered. But the statute contains numerous gender-specific references, such as husband and wife, which many have interpreted to exclude same-sex couples from marriage. Even Supreme Court Justice Doris Ling-Cohan, who ruled on February 4 that gay and lesbian couples have a constitutional right to marry partners of their choosing, found that the existing statutory language precludes gay unions.
There have been no documented cases in New York State where the legal status of a marriage in which one of the spouses subsequently underwent gender reassignment surgery has been challenged. Transgender rights advocates believe that Manhattan’s State Supreme Court Justice Doris Ling-Cohan’s finding last month that the marriage law is unconstitutional because it effectively prohibits gays from marrying the individual of their choosing would likely also protect the rights of transgendered people.
Ling-Cohan’s ruling has been appealed by the Bloomberg administration, which has asked that the case be heard on an expedited basis by the state’s highest court, the Court of Appeals, but there is no word on specifically how the appeal will proceed.
Pauline Park, co-chair of the New York Association for Gender Rights Advocacy (NYAGRA), suggested that a transgendered plaintiff could challenge the court’s decision if it rules against Ling-Cohan and does not address the status of trans people under the state’s marriage laws. She noted the ambiguities that a law crafted almost a century ago creates for an age where sexual orientation and gender identity have moved beyond the traditional boundaries.
“No one in the 18th and 19th century thought about same-sex marriage,” she said. “Essentially it wasn’t the topic of public discourse.”
Shannon Minter, legal director of the National Center for Lesbian Rights, said he is optimistic that transgendered people will eventually be able to marry in New York. Nevertheless, he said judges in other states have used bans on marriage for same-sex couples to limit the rights of transgendered people already in marriages. The increased focus on same-sex marriage as a possibility that judges even think about, he argued, has been “terribly harmful” for transgendered people.
“Before the current debate over marriage exploded in the media, transgendered people were marrying all over the country with no problem at all,” he said. “Things have been turned upside down by the controversy over same-sex marriage.”
Citing bans on marriage between same-sex couples, courts in Texas, Kansas, Florida and Ohio in recent years have nullified marriages where one spouse had undergone gender reassignment surgery.
The Texas Court of Appeals in San Antonio ruled in 1999 that Christie Lee Littleton, a transsexual woman, and her late husband, Jonathan Mark Littleton, were never legally married in Texas because she was a man based on her chromosomal composition. The ruling also said Littleton did not have standing to file a medical malpractice suit against the physician she accused of causing her husband’s death.
Using the same legal precedent, the Kansas Supreme Court ruled in 2002 that the marriage between J’Noel Gardiner and her late husband, Marshall Gardiner, was invalid because J’Noel was born a man. J’Noel, who had undergone gender reassignment surgery years before she met Marshall, was denied part of her husband’s estate after his estranged son, Joe, challenged the validity of her marriage to his father.
Kansas’ marriage laws, as with those in other states around the country, do not specifically address marriages involving transgendered people. Nevertheless, Minter said, the Kansas Supreme Court, the Texas Court of Appeals and others have wrongfully concluded that marriages where one spouse is transgendered and marriages between same-sex couples are the same thing.
“It is ludicrous to say their marriages have anything to do with same-sex marriage,” he said, expressing frustration at how little is understood about transgendered people. “It is painful to see courts that are not able to distinguish between the two.”
A recent ruling by an Illinois appellate court in Chicago denied custody to a transgendered father, ruling that his marriage to his ex-wife, who is the child’s biological mother, was void, and therefore he was not in fact the child’s legal father. That decision, however, was premised on evidence that the man had never undergone complete gender reassignment surgery. Whether the Illinois court would have made the same ruling had there been surgery is unclear.
Park and Mara Keisling, executive director of the National Center for Transgender Equality, argued that these court decisions demonstrated that the right wing also has a transphobic agenda which parallels their anti-gay resistance to same-sex marriage.
“Some extremists would not want to see transgendered people get married,” Keisling said. “You can’t get much more unconstitutional than that.”
Michael Silverman, executive director and chief legal counsel for the Transgender Legal Defense & Education Fund (TLDEF), noted that while some transgendered married people have faced questions about the legality of their unions, transgendered people continue to marry, both with licenses and without, as in the case of Lucas and Rodriguez.
“Transgendered people are as concerned as gay men and lesbians about protecting their families and relationships,” Silverman said. “To a certain extent transgendered families have navigated the system with certain success.”
While the question of marriages including transgendered spouses remains in need of clarification, Lucas said everyone, regardless of sexual orientation or gender identity and expression, should be allowed to marry.
“Every girl has right to get married regardless of her gender—just like the right to breathe air,” she said.