Tuesday, August 12, 2008

What about transgender and marriage? What happens to "birthright" arguments?

Today, ABC Good Morning America presented a story of a woman who had lived as such but was chromosomally male. The news story is by Mary Hanan, is titled “Women with Male DNA all female; women with rare syndrome learn to live with male chromosomes,” link here.

In this case, the individual had married a man and the couple had adopted a child, with no subsequent controversy. I wondered what the legal literature says about this kind of situation. It seems that generally (maybe always) state laws accept the gender of a person as originally recorded as the legal gender. In many cases, neither a biological determination of different chromosomes or actual voluntary sex change (with surgery, etc.) would lead to change in legal recognition. Some states will not allow a transgender person to change his or her gender or record, but allow the person to remain married legally to someone the person regards as a member of the same sex. So, inadvertently perhaps, the states are allowing same-sex marriage (and probably custody and adoption) in these cases. It seems, to me at least, that “right wing” arguments about a child’s “birthright” to opposite-sexed married parents tend to run into trouble with a situation like this.

However, some states, even before the same-sex marriage debate grew, have recognized the new gender of a person after a change, such as a case in California in 1997. Here is a typical reference on transgender marriage, link.

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