Another Marriage Issue: Transsexual Marriage

The popular TV show Dancing with the Stars has been a hotbed for discussion and criticism this season due to one of its contestants: Chaz Bono. Chaz Bono, formerly known as Chastity Bono, is the famous transsexual son of Sonny and Cher Bono. The topic of transsexualism which has been gained a lot of attention in the popular media has also gained attention in the legal sphere and in this month’s New York State Bar Association Journal they ran an article entitled “Planning Considerations for the Transsexual Client.”

The article, written by Caryn B. Keppler, discussed many of the practical difficulties that transsexual clients face. Most notable were the issues relating to marriage. With the federal Defense of Marriage Act (DOMA) and state mini-DOMAs defining marriage as the “legal union between one man and one woman as husband and wife” the question arises as to what is a man and woman for definition purposes? Is it the biological sex assigned at birth? Or is it one’s current anatomical state? For transsexuals the answer to these questions is often different and can pose unique problems. For example: If you have a male to female transsexual who wants to marry a male is that a marriage between a woman and man or is it a gay marriage/civil union/partnership?

While a handful of states have recognized gay marriage only one state, New Jersey, has provided some legal recognition to a marriage of a post-surigical transsexual. In the case of M.T. v. J.T. the Court recognized the marriage of a male to female transsexual who was married to a male after sexual reassignment surgery. See M.T v. J.T., 140 N.J. Super. 77, 355 A.2d 204 (N.J. Super. Ct. App. Div. 1976).

The current topic of transsexuals and marriage is one that many states have not dealt with or have opposed under the guise of DOMA; yet, it is undoubtedly an issue in which lawyers, judges and the legislature will have to tangle with in coming years.