Through Sickness, Health and Sex Change

The law really does not contemplate what happens when one member of a married heterosexual couple has sex reassignment surgery and legally becomes a member of the opposite sex, thereby suddenly making the marriage a same sex marriage. Virginia certainly does not - even though there are couples that find themselves in that situation as is the case with one of my clients. Does the law ignore the sex change? Does the marriage between what are now a same sex couple violate state constitutional provisions banning same sex marriages? Because Virginia does recognize sex reassignment surgery and will grant amended birth certificates, there truly is no definitive answer since the marriage was legal when the parties entered into it. No doubt in some state somewhere a court decision will be handed down in the future that squarely addresses the situation. Until then, the issue remains clouded and, depending on differing state laws, will probably remain clouded in many states. Of course, situations involving such couples make Christianist hate merchants like Matt Staver of Liberty Counsel, a wingnut "public interest law firm," nearly foam at the mouth. Because of all of this, I found this New York Times story on one such couple interesting. Here are some highlights:
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THERE are ways in which the Brunners are like many other middle-aged married couples. Former high school and college sweethearts, they finish each other’s sentences and order the same food at restaurants. They shuttle their three children to sports practices, and laugh when their 90-pound Labrador retriever jumps onto the sofa to lick guests.

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“We’re one of the few of our friends who are still in our original marriage,” Denise Brunner said. But it is not exactly the same union, as evidenced by their marriage certificate, which they have enlarged to poster size to make the point. The original, from 1980, listed Donald Brunner as the bridegroom and Frances Gottschalk as the bride. But a sex-change operation in 2005 turned Donald into Denise. Fran stood by her spouse, and the couple secured an amended certificate, putting “Denise” next to “bridegroom” for lack of other options.

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Massachusetts is the only state to have legalized same-sex marriage, and the Brunners are two women married to each other in New Jersey. As this state (along with Connecticut, Vermont and New Hampshire) confronts challenges over whether its civil unions fulfill the mandate of providing same-sex couples equal rights and benefits, the Brunners offer themselves as Exhibit A on how the nation’s dizzying patchwork of marriage laws, which include the domestic partnerships of California and other states, may be out of step with people’s lives. The Brunners say they have no interest in obtaining a civil union — they consider it a downgrading of their relationship — but they do worry about their status.

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Julie A. Greenberg, a professor at the Thomas Jefferson School of Law in San Diego, said marriages like that of the Brunners are rarely challenged by government agencies because more conservative states do not recognize sex changes, and more liberal ones (like New Jersey) are loath to seem hostile to transsexuals.

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Legal groups that have fought to preserve traditional marriage are less concerned with couples like the Brunners than those like the Littletons, who seek a heterosexual union after surgery. “What you’re born with is what you are,” said Mathew Staver, the founder of the Liberty Counsel, a nonprofit organization in Florida, who successfully argued the final stages of the 2004 Florida case. “It’s the same as if you go through plastic surgery to look like Marilyn Monroe, but you’re still not Marilyn Monroe.”