On Friday, March 29, 2013, an Arizona trial judge denied a divorce to Thomas Beatie, the transgender self-described “Pregnant Man”, because, the judge reasoned, Beatie was still a woman when he married his wife in Hawaii in 2003. Judge Douglas Gerlach found the Court did not have jurisdiction to grant the divorce because the evidence failed to prove that Beatie was a transgender male at the time of his marriage.
When Beatie married his wife, Nancy, Beatie had undergone a double mastectomy and hormone
therapy. Beatie looked male, identified as male, had a driver’s license that said he was male, and obtained a marriage license as a male. By all outward appearances, Beatie was male. But Beatie still had all his female sex organs. Beatie in fact carried and gave birth to three children using donated sperm during the marriage he now wishes to end so he can marry his new girlfriend. Most significantly, Beatie went public with his pregnancies.
Citing Arizona’s ban on same-sex marriages, Judge Gerlach ruled that Beatie’s marriage is not valid or recognized in Arizona. Beatie says he will appeal.
If Beatie had not gone public with his pregnancies, Beatie would be divorced now. No denial under Prop. 102. No appeal.
I previously posted about a related issue–whether a marriage between a man and a woman would become invalid and unrecognized in Arizona under Prop. 102 if, during the marriage, one of the spouses underwent gender reassignment therapy and surgery. To view that post, click here: http://scoresbyfamilylaw.com/blog/prop-102-and-the-transgendered-spouse/. As I noted in that post, this evolving area of the law is filled with unanswered questions. The Beatie case raises more still.
Under Prop. 102, Arizona’s same-sex marriage amendment, is gender determined at the time of a person’s birth, at the time of marriage, or at the time of divorce? If Beatie and his wife had been married in a state where same sex-marriage is legal, would the case be decided differently? What would be the result if, after a valid same-sex marriage to Nancy, Beatie fully completed his gender reassignment process before moving to Arizona? Would the marriage be valid then and recognized in Arizona as being between a man and a woman even though both partners were women at the time they married?
May a person born male who undergoes gender reassignment to completion then enter into a valid marriage with a male in Arizona? Does a valid Arizona marriage between opposite-gender partners become invalid when one spouse completes gender reassignment? And when exactly does that occur? If a transgender male’s wife doesn’t raise the issue in a divorce case, and if the transgender male doesn’t show off his pregnant body to the whole world, how would a judge or anybody know whether the person standing in front of him has undergone gender reassignment?
Maybe we should just ask the court clerk to do a pants check before every marriage license and divorce filing. Is that where we are headed?
Copyright © 2013 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.