Tuesday, January 15, 2013

Issues in Transgender Family Law

A transgender person may find it difficult when it comes time to get married or divorced. Most laws do not take into account the identity of a transgender person.  A person’s identity can play a large role in the world of family law. 

Ultimately, the validity of a transgender’s marriage is viewed in relation to each state’s recognition of same sex marriage. While Illinois recognizes civil unions, the state does not recognize marriage between parties of the same sex. Those marriages are considered “prohibited” and thus invalid.

Therefore, for purposes of entering into a marriage, a transgender person must discover whether they are considered, legally, their pre-transition sex or post-transition sex.

In some states, courts have upheld post-transition marriages where a different-sex spouse legally changed his/her sex and then married his/her different-sex partner. In these cases, the courts acknowledged that the person is able to legally change their gender and therefore able to marry a person that would otherwise be of the same sex. In opposite, some states have concluded that a person’s birth sex is unchangeable and therefore a post-transition person cannot marry a person who originally was the same sex. Illinois edged closer to this second line of reasoning in 2005 with the Illinois Appellate Court’s decision in In re Marriage of Simmons.  In Simmons the court invalidated a marriage entered into between a transgender male and female. The court found the husband was legally female.  In its decision, the Court did mention that the husband had not undergone a “full” transition, leading to the conclusion that the court may have found the marriage valid had their been a full transition.

-Emily Rapp