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June 26th as “LGBT Rights Day” — A Coda to Marriage Equality That Includes Trans Persons As Well

I move that June 26th shall henceforth be known as LGBT Rights Day. Three blockbuster decisions — Lawrence v. Texas, United States v. Windsor and Obergefell v. Hodges — were announced on this day. And as the celebrations continue, some organizations devoted to marriage close up shop, and others gear up for the next campaigns, I would like to add a coda to today’s court decision.

I said June 26th should be “LGBT” Rights Day for a reason. While the Court did not reference trans persons in its decision, the ruling that all marriages between two persons are the same — marriage — applies to transgender persons as well as cisgender persons. Not only because many trans persons are queer, but because trans persons in marital relationships have suffered great hardship from our legal system as it had existed before June 26th. Let’s also remember that there is no such thing as a “gay” marriage — it is “same-sex” marriage, and trans persons have a biological sex just like cis persons, so Obergefell applies to us as it does to our friends and neighbors.

I’m not surprised that few are aware of this; many trans persons had no idea that this decision impacted their lives in any way. There’s a reason for this — we were asked many times over the past decade to not discuss our marriage issues in public for fear that they would muddy the messaging and confuse the public. Though I received the first same-sex divorce in Maryland, I was not free to discuss my personal belief in the importance of marriage equality, neither in Maryland nor beyond. As a good ally, I advocated just like any other gay person, my gender history ignored as irrelevant to the discussion.

The law, however, meant as much to me then as a married woman as it would today. I could have been denied a divorce, which would have forced the issue into the open and might have impacted the campaign in the state. Fortunately, I was not denied, and the divorce was granted with nary a raised eyebrow. Others, however, have not been so lucky. Trans persons, solely because of their gender history, have needed to discuss their surgeries, provide birth certificates and expert testimony as to their fitness as a parent. Vicious, selfish spouses continue to have a field day in court.

Looking back, the most famous case is Littleton v. Prange. The Fourth Court of Appeals of Texas voided the marriage between a deceased husband and his transgender wife, Christie Lee Littleton. The Court ruled that, for purposes of Texas law, Littleton was considered male, and that Littleton’s marriage to a man was therefore invalid because Texas law did not recognize same-sex marriage. So we had a court invalidating a marriage after the death of a spouse.

Another famous case is that of Nikki Araguz, a trans woman who, again in Texas, and again with her deceased husband’s family trying to steal her death benefits because she was trans, lost her initial case on May 26, 2011, as a state District Court Judge ruled in favor of her husband’s family and nullified the marriage. Fortunately, a state Court of Appeals voided that district court judgment and remanded the case back for further litigation, the outcome which will probably turn out to be very different thanks to today’s decision. Because today same-sex marriage in Texas is just plain marriage, and the widow, Nikki Araguz, is entitled to the same death benefits as any other spouse.

Things have been so bad in Texas that trans women have reverted to being legally men for a day to marry their wives. Cruel and unusual, but sometimes you do what you gotta do. No more.

Another well publicized case from the former Confederacy was that of Michael Kantaras, a trans man who divorced his wife who then sued to deny him custody of their children by claiming he was still a woman and therefore they were never legally married. She, of course, knew his trans status from the beginning, but was willing to deny him his dignity to win in court. He won in district court (televised on Court TV), but the judgment was overturned by the state’s Court of Appeals in 2004 and the Florida Supreme Court denied a review. Then, with the help of Karen Doering of the National Center for Lesbian Rights (NCLR) and, believe it or not, “Dr. Phil,” the couple settled out of court. The Appeals Court decision is much less likely to happen the next time, and Dr. Phil won’t be needed.

While these Supreme Court decisions do not touch on issues of gender identity and expression, they do remove the justification that courts have used to deny trans persons their rights — that by refusing to recognize their gender transitions they were entitled to invalidate legal marriages as same-sex marriages. Clearly there is no way to know that a trans person won’t suffer in court in the future due to a judge’s transphobia — and family court judges seem to be the most prone to such prejudices, in comparison to state and federal court judges — but it is much less likely that problems will arise. Even if a court should rule in our favor because of misgendering, the legal victory will still be a victory. Educating the nation about gender identity remains our challenge, now that the nation understands sexual orientation.

Justice Kennedy wrote:

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.

In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs [italics mine].

He then continues:

When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973. Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.

Today, the nation’s psychiatrists recognize the personal identity known as gender identity as immutable as sexual orientation, and we have an even better handle on its roots in the brain than we do with sexual orientation. Therefore, the arguments that today apply to the issue of sexual orientation will likely, based on the majority’s reasoning, apply just as well to trans persons who enter into what today we now call (just) marriage.

This victory impacts all of us because it is a great victory for civil rights in general, and the civil rights of sexual minorities in particular. Putting the potential animus of future judges aside, this decision should stand as firmly under trans persons as it does under cis persons.

Justice Kennedy’s concluding paragraph applies to us all:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were.

As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.

Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.

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26th Annual Palm Springs International Film Festival

All the stars at the 26th Annual Palm Springs International Film Festival, January 2015.

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