Transgender Marriage Laws

Generally speaking, transgender individuals have a different gender identity, or they express their gender differently from the sex that is listed on their birth certificates. Transgender individuals may or may not decide to utilize hormones or undergo surgical procedures to transition to their true identity. As part of their transition process, some transgender individuals change their legal name and, in some states, may legally amend their gender on birth certificates and driver’s licenses.

What are Transgender Marriage Laws?

Across the country, marriage laws are rapidly changing in light of evolving public perceptions and opinions on various issues surrounding gender and sexual orientation. New laws and policies are replacing older and outdated ones. This can create various legal issues as states try to keep up with the pace of the changes.

In the United States, the rights of transgender people vary considerably by jurisdiction. In recent decades, there has been an expansion of federal, state, and local laws and rulings to protect transgender Americans. However, many rights remain unprotected, and some rights are being eroded. Since 2020, there has been a national movement by conservative/right-wing politicians and organizations to target transgender rights. There has been a steady increase in the number of anti-transgender bills introduced each year.

The landmark Supreme Court decision in Obergefell v. Hodges legalized same-sex marriage in the United States. Interestingly, transgender couples could sometimes marry even before gay marriage was universally legalized. For instance, transgender individuals could often enter into heterosexual marriages, such as a marriage between a transgender man and a woman.

Today, states may no longer restrict marriage based on gender. This means that whatever your gender, and regardless of whether state officials recognized your gender, this should not affect your ability to marry. While this is a major victory that will benefit many families, transgender people and their families continue to face many challenges – including barriers to recognition of parent-child relationships.

Paperwork can be troublesome. Many states only have marriage licenses and certificates that say “Bride” and “Groom.” Even where different forms are available, officials may insist that a person be listed according to their current ID documents. While this can be upsetting and can even out people, it does not affect the validity of your marriage.

What Was it Like Before Same-Sex Marriage Was Legalized?

Before same-sex marriage equality, transgender marriages could be impacted by:

• Restrictions regarding recording a person’s current gender on official documents
• Bans on forming a “same-sex” marriage
  • For example, this could affect a transgender woman who is not allowed to marry a man in a state that does not recognize gender changes and treats her as a man.
  • In addition, this type of ban could also affect a transgender woman who is not allowed to marry a woman in a state that did recognize gender changes and treated her as a woman. Some states created specific exceptions to their bans on same-sex marriage to deal with this issue.
• Potential nullification of existing marriages between a man and a woman if one partner underwent gender transition before or during the marriage

There were some significant cases that ultimately led to today’s law. The first known transgender case was filed by Christine Jorgensen in 1959. She wanted to marry, but it was denied because her birth certificate identified her as male. She did not pursue the matter.

In 1999, Christie Lee Littleton, a trans woman who had undergone sex reassignment surgery, argued to the Texas 4th Court of Appeals that her marriage to her genetically male husband (deceased) was legally binding and, hence, she was entitled to his estate. The court decided that her sex was equal to her chromosomes, which were XY (male). The court subsequently invalidated her revision to her birth certificate, as well as her Kentucky marriage license, ruling, “We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse.”

New ground was broken in 2001 in Kansas. The Court of Appeals held that when deciding whether a person is male or female, a trial court may not only consider what the individual’s chromosomes were at the moment of birth. The court may use chromosomes as one fact, but not the exclusive factor, in arriving at a decision. The trial court was directed to consider factors besides chromosome makeup, including gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity.

Currently, marriage between two adults in the U.S. no longer requires that either individual be any particular sex or hold any particular sexual orientation. As a result, transgender individuals should no longer have to show that they are one gender or another to marry. However, there can still be several instances in some areas where various issues can arise.

What Other Types of Issues are Related to Transgender Marriages?

Several different legal issues can still arise concerning transgender marriages. Many of these stem largely from general conditions of same-sex marriages and whether transgender marriages are considered same-sex marriages. For instance, some states have specific legal details regarding:

• Adoption: Some states may still lack legal protections for transgender couples concerning adopting children. For instance, in some states, same-sex couples’ right to adoption is not guaranteed, and they may be denied the right to adopt by the adoption agency. Thus, if a transgender person is in a marriage that is considered to be “same-sex,” they may encounter issues if they attempt to adopt a child. Many adoption agencies are faith-based, and they have the right to turn away couples who are gay or transgender.
• Discrimination: Some states present issues concerning discrimination against persons involved in a same-sex marriage or a marriage involving a transgender person or people. For instance, some state laws are still so broad that they allow some agencies or services to discriminate based on a certain marital status.

What Types of Protections Should I Have as a Transgender Person?

If you are a married transgender person or a transgender person hoping to get married, there are some legal protections you can make for yourself that can add additional protections for you. These include:

• Last Will and Testament: If you die without leaving a will, state law will determine who gets your property. If you have a spouse, that person will inherit your worldly goods. Because the issue of the validity of transgender marriages is in flux now, it is a good idea to make a will that is very clear concerning the distribution of your property upon your death and not leave it up to your state’s preferences nor be beholden to your state’s position on transgender marriages.
• Power of Attorney: A medical or financial power of attorney can address the rights of your spouse if you get incapacitated. As with wills, it is a good idea to have a written document giving your spouse a power of attorney so that your wishes are given effect and are not subject to swings in the law.
• Various Written Agreements: Legally enforceable agreements can provide detailed accounts of the rights and responsibilities of you and your spouse regarding subjects like property, children, financial support, and finances. These can be very helpful, especially in states where the laws are still vague. It is important to have such documents reviewed by an attorney for accuracy and validity.

Do I Need a Lawyer for Help with Transgender Marriage Laws?

The law concerning transgender marriage has undergone significant changes in the last few years. Chances are, they will continue to evolve. Since marriage is a legal relationship, any marriage should involve thorough consideration of both partners’ rights and responsibilities. It may be wise to consult with a family lawyer when beginning a life together or if you have any specific questions or concerns.