Marriage and the Transsexual Woman
Statistics are limited, but it's generally thought that about 20-30% of transsexual women marry a man at least once, e.g. one American study of 51 post-SRS women aged 20 to 58 found that 12 were married as women (21%) while another 23 were in relationships.
With the help of modern medicine, many post-operative transsexual women pass so well both physically and socially that it is often their own choice as to whether to reveal their male background to a boyfriend or husband. As sadly most men react badly to being told their girlfriends transsexuality and young women in particular often prefer to hide this and risk discovery, instead admitting to some other medical problem which prevents them from ever menstruating or having children. For example in the study referred to earlier one woman (now in her mid-30's) met her future husband soon after her SRS while working as a receptionist, they've now been happily married for seven years and her husband still doesn't know of her surgery - which the authors say is not unusual. Dr Stanley Biber has said of his 3,500 MTF women, "A lot of them get married and have families and don't want to remember their lives before."
Belinda Darlington
There is now absolutely no doubt that most transsexual women can satisfactorily and fully enter in to marriage (in all physical as well as social senses), on exactly the same terms as any infertile but genetic woman - whose right to marry has never been disputed!
However, in 1970 Lord Justice Ormrod issued his infamous judgment on the Corbett v. Corbett (otherwise Ashley) case which has ever since prevented Male-to-Female transsexual women from marrying. He basically stated that if a transsexual woman was originally born physically male with XY genes then she will always be legally "Male" - regardless of her current external female genitalia; psychology; hormones; and secondary sexual characteristics. A transsexual woman is therefore never able to lawfully to marry a man (other than presumably a Female-to-Male transsexual!) as this would be an indecent and void "same-sex" marriage.
The judgment of Lord Justice Ormrod makes irrelevant the fact that with the benefit of hormonal treatment, modern sex reassignment surgical techniques and other treatments, the majority of post-operative MTF transsexual women enjoy a normal life as a woman and can pass even quite intimate medical examinations as a female.
The deficiencies of the Corbett judgment have now been repeatedly and glaringly proven, but despite subsequent re-testing of the law in UK, Europe and America, most countries still reject the validity of marriages entered into after a transsexual person has transitioned. For example one judge concluded: "there is no authority in Ohio for the issuance of a marriage license to consummate a marriage between a post-operative male to female transsexual person and a male person".
This law is patently unjust to transsexual women and in desperate need of change. Transsexual women who have lived as a post-op woman for perhaps 10, 20 or 30 years, and have been married 5, 10 or 20 years, can suddenly find on the death of their husband that: the marriage was never valid; that they have no legal rights as a widow; that they are denied their inheritance; and that they have no right of guardianship over their adopted or step-children.
April Corbett & husband
Bibiana Fern�ndez
Caroline Cossey
Incidentally, it should be noted that those transsexual women who have by some means obtained a valid birth certificate identifying their sex to be "female", generally marry without incident. In most cases, judges only step in to deny the transsexual woman her female identity and her right to marry a man if the marriage is challenged after-the-fact.
Birth Certificates and Same-Sex Marriages
There are two hopes that may reverse the current desperate situation for transsexual women who are married to, or hope to marry, a man:
1. Permit Change of Birth Certificate.
The adoption of laws allowing allowing a transsexual person who has undergone sex-reassignment surgery to change the sex designation on his or her birth certification his or her birth certificate. This is important, because by allowing birth certificate changes, a country is essentially acknowledging that changing one's sex is legally possible - that, e.g., a female person can become male for all legal purposes, presumably including marriage.
2 Legalise Same Sex Marriages.
The legal framework surrounding marriages involving a transsexual person is still far from clear and has never really been properly clarified in the courts or laws of most countries. When courts have dealt with the issue, they have been overwhelmingly preoccupied with whether a person can "really" change his or her sex, and with the fear that recognizing these marriages would open the door to same-sex marriage. The increasing number of cases invalidating marriage involving transsexuals makes it relatively easy for the court to decided to follow precedent and simply do the same. However, many countries are now addressing the issue of same-sex homosexual marriages. While laws permitting this would not resolve the issue of whether a male-to-female transsexual has legally changed sex, the provision of marriage rights for same-sex couples would also protect the right of the marriage between a man and a transsexual woman, and also eliminate the many legal uncertainties and vulnerabilities to which these marriages are currently prone.
Examples
This page provides a few examples taken from the internet that show how a bad law is directly affecting the lives of transsexual women. Although the last article is unsympathetic to the wife, it still demonstrates well how a wife's normally undisputed right of inheritance to her husbands estate can be easily challenged on the grounds that she is a transsexual.
A lot more legal information concerning marriage and transsexuals can be found on the excellent Press for Change website.
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Daily Telegraph
Wednesday, 18 July 2001
Transsexual loses appeal over 20-year 'marriage'
By Joshua Rozenberg
A Transsexual who wanted to have a 20-year marriage recognised in law lost her appeal yesterday by a majority of two to one.
The dissenting judge in the Court of Appeal considered that the law should reflect social change.
ElizaLiv Bellinger, 54, was registered at birth as male and was married to a woman for four years. Mrs Bellinger had gender reassignment surgery in 1981 and, during the same year, went through a ceremony of marriage with Michael Bellinger, a widower of the same age who was fully aware of the situation. The couple now share a home in Lincoln.
Dame ElizaLiv Butler-Sloss and Lord Justice Robert Walker ruled that Mrs Bellinger was not female as the law currently stood. They accepted that "the profoundly unsatisfactory nature of the present position and the plight of transsexuals requires careful consideration".
However, the two judges said any change in the law must be a matter for Parliament. The court was dismayed to hear that no steps had been taken by the Home Office following the report in April last year of an inter-departmental working group on transsexual people.
The two judges said: "That would seem to us to be a failure to recognise the increasing concerns and changing attitudes across Western Europe which have been set out so clearly and strongly in judgments of members of the European Court in Strasbourg."
Copyright � 2001, Daily Telegraph
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San Antonio Express-News, Texas
Wednesday, Oct 27, 1999
Appeals court rules against transsexual
By Adolfo Pesquera
Express-News Staff Writer
Woman cannot be man-made, or so ruled two of three justices Wednesday in an appellate court opinion on a San Antonio transsexual's suit.
"This case involves the most basic of questions," remarked 4th Court of Appeals Chief Justice Phil Hardberger, who in answering the question denied Christie Lee Littleton any legal standing as a woman.
In a medical malpractice suit, she alleged her husband's death in 1996 was preventable and the result of a missed diagnosis.
Hardberger agreed with 285th District Court Judge Frank Montalvo in his ruling that Littleton's marriage to Jonathon Littleton was a same-sex marriage, therefore illegal.
The ruling denies Littleton any standing as the spouse and affirms the defense's claim that no operation changes the genetics of the male chromosome.
Cases involving transsexuals are the rarest of sex cases in courts of law. Only four similar cases exist in the world, the chief justice noted.
Dale Hicks, Littleton's attorney, said he was disappointed by the opinion "but not surprised."
Hicks said he hasn't conferred with Littleton, but "it has been my understanding all along that she desired to go to the Supreme Court of Texas if it came to that."
Justice Alma L. Lopez cast the dissenting vote. She claimed the majority ignored rules of civil procedure in accepting Littleton's original birth certificate. Littleton had the birth certificate amended by court order Aug. 14, 1998, to reflect her preferred gender.
To set aside a suit, a defendant must show that no genuine issue of material fact exists, Lopez stated. "Christie presented significant controverting evidence that indicated she was female," Lopez wrote. "Texas law recognizes that inaccuracies occur in recording gender. By permitting the amendment of an original birth certificate, law allows these inaccuracies to be corrected."
But there was no error in the original birth certificate, Hardberger argued. Littleton was born in 1952 as Lee Cavazos Jr. and was anatomically a male until the age of 27 when his male organs were amputated. The lower court's role in amending the certificate was ministerial and "involved no fact-finding or consideration of the deeper public policy concerns."
Hardberger acknowledged that science recognizes certain people as transsexuals, and that the operating physicians at the University of Texas Health Science Center, Donald Greer and Paul Mohl, testified that "Christie is medically a woman."
The chief justice also acknowledged that transsexuals are not homosexuals. Nevertheless, he concluded that "her female anatomy is all man-made. There are some things that we cannot will into being. They just are."
In concurring with Hardberger, Justice Karen Angelini wrote, "this case involves no disputed fact issues for a jury to decide, but presents this court with pure issues of law and public policy."
Hardberger's opinion on public policy concurred with oral arguments provided Sept. 2 by George Brinn, attorney for the defendant, Dr. Mark Prange. Brinn argued that juries are not asked to answer questions without appropriate instructions or guidelines.
"In our system of government, it is for the Legislature to determine what guidelines should govern the recognition of marriages involving transsexuals," Hardberger wrote.
Hicks argued that the Legislature already took up the issue, which twice this decade was brought to state committees by a gender lobby.
And in an opinion filed on Littleton's behalf by the Texas Gender Advocacy Information Network, its executive director, Sarah DePalma, said transsexuals at this year's legislative session were told their bill to legally streamline gender transitions died because representatives "were not convinced there was a need to address the issue." "The chromosomal argument made in this case and the potential it has to do irreparable harm to hundreds of transsexuals across the state is a grave concern to us," DePalma said. Of the four examples in case law cited, one came from England, another from New Zealand and two from the United States. Only one case upheld a transsexual marriage -- M.T. versus J.T. in a New Jersey superior court. The New Jersey case involved a man who paid for his mate's sex-change operation and lived with her as man and wife for two years.
When they separated she sued for support.
The lower court sided with the transsexual, stating: "If the psychological choice of a person is medically sound, not a mere whim, and irreversible sex reassignment surgery has been performed, society has no right to prohibit the transsexual from leading a normal life."
The New Jersey appellate court agreed.
Copyright � 1999, San Antonio Express-News
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The Story of: Christie Lee Littleton
From the Christie Lee Littleton website, for access click HERE
It is the tragic story of the death of her husband of seven years and how an insensitive judiciary not only invalidated her marriage, but declared her to be a "male" despite having a female genitalia and all other female physical appearance characteristics. Despite all medical evidence to the contrary, the courts have said that she cannot sue a doctor for wrongful death of her husband, because her marriage is invalid.
It is the story of how narrowmindedness and prejudice can affect us all. It can even affect those who are not even personally aware of their chromosome configuration, or have chromosomes that do not fit within the court's narrow definition of what are "man" and "woman" chromosomes.
After a long period of grieving, Christie sought out an attorney to try to prevent the physician who treated her husband just prior to his death from harming anyone else. The attorney suggested a "wrongful death suit," so Christie agreed to go forward. It surfaced during depositions that Christie had been identified as "male" on her original birth certificate and the defendant's attorneys sought summary judgment on the theory that Christie was a "male" at the time of her marriage and is still a "male" -- "same-sex" marriages being illegal, then Christie's marriage was invalid and thus she did not have any legal standing to file suit.
The trial judge agreed with the defense, and subsequently the Texas 4th Court of Appeals agreed with the trial judge. The Texas Supreme Court denied petition for review and Christie's attorney dropped her case. With new attorneys now representing her, a petition for rehearing by the Texas Supreme Court was filed on April 18, 2000.
On May 18, 2000, the Texas Supreme Court denied hearing again, and Christie's legal team will file a writ of certiorari with the United States Supreme Court on July 3, 2000.
It's not just a case of possible medical malpractice, Christie Lee Littleton is in a fight to regain the validity of her cherished marriage and her dignity as a woman and human being that was stripped from her by ignorance and prejudice exercised in the judicial system -- she seeks JUSTICE!
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Tuesday October 13, 1998
Transsexual mother goes public
Clare Dyer reports on a spouse's battle to be recognised as female and have her marriage legalised
For nearly 20 years Liz Bellinger has lived an ordinary, anonymous life as the wife of Michael and mother to his daughter, who was left motherless at the age of five when his first wife died.
The couple, who met in a hospital ward where she was a patient and he a visitor, married at a London register office in 1981. Liz "fell in love" with Michael's daughter, too, and was granted legal custody of her. The three lived together.
But three weeks ago she faced the painful task of telling her daughter, now 24, that the mum who brought her up began life as a boy. After 20 years of sharing her secret only with her husband, Liz is coming out as a transsexual.
She is one of only a handful to have contracted a marriage in Britain - which is invalid by law - in her adopted sex. Almost certainly she is the only one to have been granted custody of a child by a judge who knew the truth.
She has still not plucked up the courage to tell her friends or her husband's family. She even moved home, from Devon to Lincoln, for fear that a Benefits Agency employee who knew her story would reveal the details to the media. She is going public now because she feels she can no longer keep quiet. Her decision is not personal but political, she insists.
Ms Bellinger wants her marriage legalised. Aged 52 and suffering from the physical effects of a lack of hormones for nine years, following surgery, she thinks her life will be short and she wants to die a woman. She wants it not just for herself but for the 10,000 in Britain who have had a sex change.
But the law has not been on her side. In July, the European Court of Human Rights in Strasbourg rejected, by 11 to 9, two transsexuals who challenged the Government's refusal to let them amend their birth certificates.
The case was the latest in a series of similar ones dating to 1986. Each time the court has rejected the argument but by an ever narrower margin, and in the latest case the judges signalled that they would like Britain to change the law. Of 40 signatories to the European Convention on Human Rights, only four refuse to allow transsexuals to re-register their births. But on social issues the Strasbourg court leaves states a wide leeway.
Because her birth certificate says "male", Ms Bellinger is still a man in the eyes of the law. Though to all outward appearances she is a woman, her chromosomes are male. She knows that by going public, she risks a possible prosecution over her marriage. She was not asked to produce her birth certificate by the registrar but she is described as a spinster on her marriage certificate.
As far as she is concerned, she has done nothing wrong; since her surgery she has regarded herself not as a transsexual but as a woman. Yet she is challenging the authorities to prosecute her to highlight what she believes is a gross injustice. As far back as she can remember, she says, she knew she was the "wrong sex". In 1971, aged 25, she heard about the gender clinic at Charing Cross hospital in London and asked her GP to refer her. Within an hour she had found herself sectioned under the Mental Health Act. She was diagnosed as a paranoid schizophrenic and given electroconvulsive therapy. Eventually she was referred to Charing Cross but it was not until 1980 that she got her surgery.
Last month, she traced the psychiatrist who had misdiagnosed her and extracted an apology from him.
Now she has invited MPs, including the Prime Minister, the Home Secretary, the Health Secretary, and the Chancellor, to a meeting next week in Parliament.
As more transsexuals go public, she says, public opinion is shifting. ITV's Coronation Street has even helped. It has had a sympathetic story about transsexual Hayley Patterson. Lynne Jones, Labour MP for Birmingham Selly Oak and chairwoman of the parliamentary forum on transsexuality, is tabling an early day motion congratulating the series and asking the Government to alter the law to allow transsexual marriage.
"The public are supporting Hayley," said Ms Bellinger. "I'm saying - Hayley is a manufactured character... support the real Hayleys who are downtrodden by this government and experiencing a form of imprisonment."
If ministers fail to turn up to her meeting, she vows she will not leave Parliament voluntarily. "If that means I'm arrested, so be it."
Michael, her husband, disabled after a work accident years ago, is backing her fight. "I supported her for the last nearly 20 years and I'm with her," he said.
Copyright � Guardian Media Group plc.1998
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Wealth and a sex change are at center of Kansas estate case
By JOHN T. DAUNER - The Kansas City Star
Date: 06/23/00 22:15
Longtime Leavenworth resident Marshall G. Gardiner was an impulsive person, according to his only son. And now, about a year after his death, family members and others who were close to him still are bobbing in the wake of that impulsiveness.
Late in 1998, when he was 86, Gardiner, a former journalist, politician and stockbroker, among other things, married 40-year-old J'Noel Ball, an assistant professor of finance at Park University.
But when he died in August 1999, Gardiner left no will, an estate of about $2.5 million and a question for the courts: Can a man who has undergone a sex change -- J'Noel -- be a legal spouse in Kansas?
Had he left a will, Gardiner could have specified how his estate was to be divided. Without a will, state law rules.
After Gardiner's death, J'Noel Gardiner filed a claim for half the estate as Gardiner's surviving spouse. J'Noel cited the sex-change surgery in 1994 and offered as proof a Wisconsin birth certificate ordered by a Wisconsin court.
But Joe Gardiner, Gardiner's only child from a previous marriage, and his attorney argue that J'Noel remains a man under Kansas law and that the marriage is void.
Joe Gardiner's position is that J'Noel is entitled to nothing.
In January, a Leavenworth County probate judge ruled in favor of Joe Gardiner, saying that J'Noel was not entitled to a spousal share of the estate. J'Noel has taken the case to the Kansas Court of Appeals.
Currently, no state recognizes marriage between people of the same sex. Next month, Vermont will become the first state to recognize "civil unions" between couples of the same sex.
Gardiner married J'Noel on Sept. 25, 1998, in Oscaloosa, Kan. Kansas Supreme Court Justice Robert E. Davis, an old friend of Gardiner's, performed the ceremony.
Joe Gardiner said he didn't even know of his father's plan to marry until after the marriage had taken place and that he didn't meet J'Noel until J'Noel picked up him and his wife, Joy, at the airport the day after Marshall Gardiner died.
Gardiner, 50, a Web page designer, and his wife moved to Leavenworth from Georgia immediately after his father's death to press the case.
"My father was an impulsive person," Joe Gardiner said. "He didn't consult friends or seek legal advice before he made decisions that changed his life forever."
Marshall Gardiner, a combat veteran of World War II, maintained a high profile in Leavenworth. He served two terms in the Kansas House in the late 1950s and after an unsuccessful run for Congress in the early 1960s, he became a stockbroker, where he made most of his money.
He made no secret of his wealth, either, driving around Leavenworth for years with a license plate inscribed 1000000, presumably for the first $1 million he made.
He was a philanthropist, and one institution that benefited from his largess was Park University. Both Marshall Gardiner and his first wife, Molly Gardiner, who died in 1984, were Park graduates.
It was at Park, a few months before their marriage, that he met J'Noel, who had begun teaching there in the fall of 1997.
Before the wedding, Marshall Gardiner bought a house in his name in Parkville, and J'Noel lived there and paid virtually all expenses related to it. Gardiner spent weekends there but maintained his home in Leavenworth. J'Noel was never inside Gardiner's Leavenworth home, court records say, before he died on Aug. 12, 1999.
Court records show that J'Noel had been Jay Ball and had been married to a woman, Sandra Parker, from 1988 to 1993. But the records say that even during that relationship Ball felt he should have been born a female. He believed that he was born with a "birth defect," that is, having male genitalia.
So, in 1994, while teaching finance at Northeastern University in Boston, he decided on sex change surgery in Wisconsin.
"Ball's external male genitalia were removed," legal documents say. "No female sex organs were transplanted into Ball."
From that procedure, J'Noel emerged with a new birth certificate, ordered by a Wisconsin court and issued Sept. 26, 1994, listing J'Noel's sex as female.
Federico Gonzalez, an Overland Park plastic surgeon, who participated in sex change procedures when he practiced in Massachusetts, said the procedure usually begins with a psychiatric evaluation and involves a team of physicians of several specialties.
Typically, hormone therapy and breast implants are used to change the appearance of the body, Gonzalez said. Through surgery, a female genitalia is created where the male genitalia and testicles were and the urinary tract is connected. No ovaries or other female sex organs are implanted.
The person's genes remain what they were, he said. But based on outward appearance, the person, "even under pretty close examination," will appear female.
In his experience, Gonzalez said, persons who have undergone a sex change procedure list their new gender on driver's licenses and similar types of identification. He said he did not know about obtaining a new birth certificate.
David Watkins, a Kansas City lawyer who worked on Joe Gardiner's case, said: "To the best of my knowledge, no state's legislation says that for purposes of marriage a person can change sex and become a woman or vice versa. If you're born a man, you stay a man. If you're born a woman, you stay a woman."
J'Noel testified in a deposition that Gardiner was told about the sex-change surgery two months before they were married. But that is not an issue in the litigation.
J'Noel's attorney, Sanford P. Krigel of Kansas City, contends that J'Noel has been "declared to be legally female" through the order of the Wisconsin court directing that the birth certificate be changed. The Kansas courts should give "full faith and credit" to the order of the Wisconsin court, Krigel argues.
In siding with Joe Gardiner, Leavenworth County Probate Judge Gunnar A. Sundby said: "J'Noel Gardiner was born a male and remains a male for purposes of marriage under Kansas law. The marriage between Marshall G. Gardiner and J'Noel Gardiner is void."
Joe Gardiner said this week that he felt confident that he would prevail on appeal. J'Noel, on the other hand, declined to discuss the case.
"It's a private lawsuit and nobody's business," J'Noel said. "Why don't you go join the `Jerry Springer Show' "?
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