Marriage laws across the country are rapidly changing in light of evolving public perceptions and opinions on various surrounding issues, including 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 New laws and policies are replacing older and outdated ones; this can create various legal issues as states try to keep up with the pace of the changes.
The landmark Supreme Court decision in Obergefell v. Hodges legalized same-sex marriage in the United States. Before this important ruling, transgender individuals often faced various legal issues when marrying. For instance, transgender individuals could often enter into heterosexual marriages, such as a marriage between a transgender man and a woman.
However, they might face other challenges when entering into or staying in same-sex marriages (for example, when one partner within a heterosexual marriage transitioned during the marriage). This could have various repercussions in areas as broad as employment, housing, hospital visits, and even insurance policies.
Generally speaking, transgender individuals have a different gender identity (and/or express their gender differently) from the sex that is listed on their birth certificate. Transgender individuals may or may not decide to utilize hormones or to 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.
Before same-sex marriage equality, transgender marriages could be impacted by:
- Restrictions regarding 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 did not recognize gender changes and treated her as a man.
- However 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 prior to or during the marriage
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.
Many different legal issues and considerations can still arise with regard to transgender marriages. Many of these stem largely from general discussions of same-sex marriages, and whether transgender marriages are considered same-sex marriages. For instance, some states may have specific legal details regarding:
- Adoption: Some states may still lack legal protections and general rights for transgender couples with regard to adopting children. For instance, in some states, same-sex couples’ right to adoption is not gauranteed and they may be denied the right to adopt by the 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 children. Similar issues may arise with child custody matters.
- The couple or individual seeking to adopt may be barred from adoption for simply being transgender, as many adoption agencies are faith based and are given the right to turn away couples for conflicts of religion.
- Discrimination: Some states may also present issues with regard to discrimination against persons involved in a same-sex marriage or in 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 statuses.
If you are a transgender person involved in a marriage, or seeking to get married, there are some legal protections you can have that can add additional protections for yourself and your property. These include:
- Last Will and Testament: A will document that is very clear with regard to the distribution of your property upon your death can avoid confusion with regard to the property rights of your surviving spouse, children, and other loved ones;
- Power of Attorney: A medical and/or financial power of attorney can address the rights of your spouse in the event that you get incapacitated; and
- 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 regarding these topics. It is important to have such documents reviewed by an attorney for accuracy and validity.
Transgender men and women are now allowed to legally marry any partner in all 50 U.S. states. However, 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 law attorney when beginning a life together or if you have any specific questions or concerns.