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
