Transgender Marriage in the Courts | Harvard Law and Policy Review
In the recent decision of W v Registrar of Marriages, the Hong Kong Court of Appeal held that a post-operative transgender woman could not marry her male partner because, in that jurisdiction, marriage is understood as involving two individuals who are of the opposite sex at birth.
The case is interesting as it raises the question of how the Courts in America have viewed marriage involving a transgender individual. Many States have now passed legislation to allow a transgender person enter into marriage with an individual who is the same sex as that assigned to the transgender person at birth.
But, without those laws, what have the Courts said about this particular aspect of marriage inequality?
In B v B (355 N.Y.S.2d 712), a wife sought an annulment on the grounds that her husband, who was a transgender man, had concealed his “true” identity from her. In return, he sought leave to amend the answer to include a counter claim for divorce on the basis of abandonment. The judge refused the husband leave. He stated that it was established law that a marriage could only validly take place between two individuals of the opposite sex. That an annulment may be sought where one of the marriage parties is unable to engage in intercourse was proof, according to the Court at least, that the primary purpose of marriage is for procreation. Mr. B had undergone reassignment surgery but was neither able to engage in traditional heterosexual intercourse with nor to impregnate his wife. At paragraph 7:
While it is possible that defendant may function as a male in other situations and in other relationships, defendant cannot function as a husband by assuming male duties and obligations inherent in the marriage relationship.
In MT v JT (355 A.2d 204, 207, N.J.Super.A.D), the wife had transitioned before the parties engaged in a wedding ceremony. Her husband had paid for her transition and supported her during their two year marriage. The parties lived as husband and wife, and they engaged in sexual intercourse with each other. Here, the Court refused to grant an annulment. While the court maintained that it is correct to ascertain the sexes of two individuals in order to decide whether or not they can marry, “for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards”.
The cases of B and MT are obviously old, as evidenced by the comments on the possibility of gay marriage. But the sentiments both decisions express remain troublesome for the modern law. While hopefully we have moved passed the extreme and offensive views of the B v B decision, there are many aspect of the apparently more progressive MT jurisprudence, which should give us cause for concern. The idea that transgender marriage is valid as long as it comes within a heterosexual norm raises serious questions as to how equal the courts actually view that institution. Similarly, conditioning marriage on expensive sex reassignment surgery, will cut of large sections of a transgender community which research suggest has restricted access to healthcare and financial resources.
While the introduction across America of legislation to vindicate the marriage rights of transgender persons has certainly been welcomed, it is regretful that B and MT will forever remain the common law’s contribution to this important debate.
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Excerpt from: Transgender Marriage in the Courts | Harvard Law and Policy Review