Marriage equality has been a hard-fought, decades-long battle. Many activists never thought it would ever get its day before the U.S. Supreme Court, and some did not live to see it. The matter reached the Supreme Court on April 28, 2015, after same-sex cases from Michigan, Kentucky, Ohio, and Tennessee were consolidated by the Sixth Circuit case Obergefell v. Hodges. The lesbian, gay, bisexual, and transgender (LGBT) community and its allies continued to advocate for marriage equality while vigilantly awaiting a decision, which was delivered on June 26 in Obergefell v. Hodges, 576 U.S. ___ (2015): Same-sex couples had the right to marry and have their marriage recognized in other jurisdictions just as opposite-sex couples could under the Equal Protection Clause. Many LGBT couples hiding their lives for decades were finally able to share their committed relationships with the world—but more importantly, they were able to share in the benefits that other committed couples had enjoyed for years, such as rights to each other’s health care, to make decisions legally for each other, to receive their spouse’s pension and Social Security, and so many other benefits that other married couples take for granted.
Transgender Marriages Before Obergefell
For transgender people, marriages before Obergefell depended on the state where they were married—particularly on that state’s treatment of same-sex marriage and its interpretation of whether or not someone could transition to another gender. In states that held one could never transition to another gender, these marriages were considered same-sex marriages. If same-sex marriages were denied in the state, these marriages were invalid, but if same-sex marriages were allowed, then these marriages were legal. On the other hand, in states that recognized transitions to another gender but not same-sex marriage, these marriages would be considered valid so long as the transgender person met the requirements of gender transition in that state. Difficulties arose when transgender couples moved from a state that recognized their marriage to a state that did not. As long as the marriage was valid in the state where the marriage originated, the other state or country should have recognized that marriage. The landmark Supreme Court ruling United States v. Windsor, 570 U.S. ___ (2013), proved helpful with respect to these moves. Windsor struck down Section 3 of the Defense of Marriage Act (DOMA), which defined marriage for the purpose of federal recognition as a legal union between “one man and one woman”; DOMA further stated that “the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Two other seminal cases—one in Texas and the other in Kansas—stand out regarding their impact on transgender marriages. The Texas cases involved Christie Lee Littleton, who married Jonathan Mark Littleton in 1990. Christie had completed her sex reassignment surgery in 1980 but had lived as a woman since the age of 15 and began taking female hormones in 1977. After her husband, Jonathan, died as a result of alleged medical malpractice, she sued the doctor in Littleton v. Prange, 9 S.W.3d 223 (1999). The defense attorney alleged that the marriage was invalid because Christie Lee was “biologically a man.” On appeal in 1999 the court relied on the Texas statute that prohibited same-sex marriage and the fact that Christie Lee still had “male chromosomes.” This, in fact, made it legal for a trans woman to marry a non-trans woman in Texas or a trans man to marry a non-trans man but prohibited marriages like Christie Lee’s and set precedent for the rest of the country.
If this weren’t bad enough, in the Kansas case In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), the Supreme Court of Kansas voided the marriage between J’Noel Gardiner, a trans woman, and Marshall G. Gardiner. The Gardiners were married in 1998; the following year Marshall passed without a will, and his estranged son contested his $2.5 million estate. The Kansas Supreme Court, relying on reading into legislative intent, basically said that “sex,” “marriage,” “male,” and “female” have nothing to do with transsexuals. J’Noel transitioned in Wisconsin, where the laws allowed her to do so, but the laws of Kansas did not recognize her transition. The court ruled that regardless of what she did to her body through sex-reassignment surgery, her chromosomes were male and she was a man. Thus, the marriage was invalid and she wasn’t allowed to inherit because it was not a valid marriage.
For legal practitioners prior to Obergefell, the common practice when advising transgender clients concerning marriage was to suggest that backup documents be executed in case the marriage would later be determined void for any reason. These documents included powers of attorney, health care proxies/health care directives, living wills, Health Insurance Portability and Accountability Act (HIPAA) releases, guardian/custody agreements or second-parent adoptions if children were involved, prenuptial agreements including awareness of the other parties’ gender identity, and identity documents that support the parties’ gender identities. These would be used as evidence to substantiate to a court the parties’ true intent. The more documentation, the better.
Transgender Marriages after Obergefell
Obergefell helped to resolve these issues for transgender marriages as well as same-sex marriages. It removed the question of whether someone is “biologically” a man or a woman. I would caution as I have seen cases where one partner in a breakup claims not to have known that the other party was transgender. This isn’t an issue that Obergefell clears up for transgender people, and it leaves the door open for their partner or children to claim fraud. I would still advise taking the extra steps of affirming the other party is aware of the gender identity and executing backup documents that most couples need anyway, such as the prenuptial agreement, guardian/custody or second-parent adoption if children are involved, and the other supporting documents noted above.
Still unresolved is how the marriages of those who are genderqueer or gender nonconforming fit into the post-Obergefell framework. Many people in the transgender community identify this way and don’t necessarily identify as male or female.
Child custody issues are handled differently in transgender cases than in lesbian, gay, or bisexual cases. Most transgender people are still considered by courts not to be fit or stable parents because of being transgender. The burden is higher because of the presumption by courts and society. Many transgender parents have their parental rights terminated just for being transgender. This is a major issue that needs to be addressed, and one, of course, that was not resolved by Obergefell. There has been much more headway made on lesbian, gay, and bisexual cases in this area. Courts today no longer make the same negative assumptions as they do for transgender parents.
Identity documents are still important for transgender people as states have various requirements including surgery to obtain them. This issue wasn’t resolved by Obergefell. The new passport law that only requires a letter from a professional and doesn’t require sex-reassignment surgery is the gold standard. However, each state has different requirements, which makes it costly and difficult for individuals to change their documents and makes it necessary to document their identity for work and other purposes.
Transgender Rights Beyond Marriage
Marriage equality is a major win for the LGBT community, but the transgender community lags behind and continues to have major problems with employment discrimination and hate violence. While the Equal Employment Opportunity Commission and the U.S. Department of Justice have made it clear that Title VII applies to transgender people, employers still discriminate. Transgender people find it hard to get a job and keep a job just because they are transgender. Stable employment is essential for maintaining a family.
The entire LGBT community is also facing a backlash following the greater visibility and progress of recent years. We see it in the anti-LGBT legislation popping up on the local and state levels. There were more than 100 state-level anti-LGBT bills introduced in the 2015–2016 legislative session, but we were fortunate to fight most of them down. We saw the loss of a nondiscrimination ordinance in one of our largest cities, Houston, as a result of negative ads and language about transgender people using restrooms. We saw the same thing in Indiana but were fortunate to have the law vetoed by the governor after much outside pressure from advocates and businesses. However, we saw negative legislation pass regarding restrooms in North Carolina; despite major pressure from activist and businesses, North Carolina passed a law making it illegal for transgender people to use public facilities. We’ve also seen school systems deny transgender children the right to use the correct restroom facility at school and courts to uphold this right, even though the U.S. Department of Education and the U.S. Department of Justice have made it clear that transgender children have the right to use the appropriate bathroom to their gender.
We continue to see hate violence for transgender people not only in using public accommodations but all other areas of life. Violence toward the transgender community is rampant at school, home, work, and on the streets. We see people stand by as transgender people are beaten while trying to get on the subway, and the community is silent when transgender women of color are killed. According to reported figures, in 2016 16 transgender people were killed in the United States. Additional murders of transgender individuals probably occurred but were either misidentified or not reported.
Obergefell was helpful in resolving some major marriage issues for transgender people. It prevents courts from questioning whether someone is engaged in a same-sex marriage and makes getting married much easier. Nevertheless, the decision leaves child custody issues (tied to marriage) unresolved for transgender people, along with many other obstacles that transgender people must overcome to become fully engaged citizens in society.