Much as I appreciate this story being posted, I have to take issue with the inaccuracies in the accompanying commentary.

First, however much people might like for the statement "if she identifies as a woman, she is a woman" to be true... legally, of course, it is not. The problem is not that Virgina fails to "understand" what Samhita seems to characterize as an irrefutable fact, but rather that state law does not allow individuals to self-define their sex status. The outcome may be the same -- discrimination against transgendered people -- but it's not as if the state flouted the law here. Legally, the "bride" in this story is a man.

Second, I see no evidence that this transgendered woman's "personhood" is not recognized by the state. Womanhood, yes. But not her personhood. Perhaps it was just poor word choice, or perhaps it was intentional hyperbole, but that statement is unsupported by the facts of the case, and only serves to exaggerate a story that needs no exaggeration in order to be upsetting and disappointing.

I am not sure why this would be a same sex marriage--if Justine is MTF, and she is female/living as a female. Their marriage is just a challenge to the concept of heteronormative birth gender identification as immutable, not to marriage laws. . .OR am I missing something?

@crimgal:

I understand the argument you're making re "if she identifies as a woman..." However, I don't believe we should be judging everything based on what the law says. You may be correct that what the state did was "legal." The issue is that the state of Virginia is discriminating - and it doesn't matter if that discrimination is codified in the law or not. I want us to be challenging these things, and not letting the state of VA off simply because they're following discriminatory law. I don't want to place words in Samhita's mouth, but this is what I thought she was getting at in the post.

Most US states have a process for either issuing a new birth certificate or amending the original to change both the subject's name and gender. Here's a great online resource for US and Canada:

http://www.drbecky.com/birthcert.html

Virginia is one of the states that issues new. Had the woman in the cited story followed the process for Virginia, her womanhood would be recognized and her right to marry protected.

From my understanding from reading the article, she had not gone through the legal paperwork that is the legal side of transition. Legal name change, etc. Explains why the marriage drew attention in the first place.

Has Justine had any sort of reassignment surgery yet? I think if she has, then it should be clear that she IS a woman. I can understand why the law would be less willing to designate a gender status to a MtF who has not had a surgery, but I think if the person is in fact living as a woman, they should consider her a woman. Either way, it really makes no sense to me.

I fail to see how this is any more or less messed up and wrong than the gay marriage ban is.

If my spouse had been born into the body she should have had, we wouldn't be married right now.

It's just so wrong that people who love each other and want to get married can't. But what really gets me is that my marriage really could be invalidated in the future because my "husband" will become a woman. It won't be any less of a marriage. Just like in any other, we will grow together and strengthen our bond as time passes. Yet if we want to adopt a child we may have to divorce so I can adopt as a single woman (if we don't move to a friendlier place first). We might very well run into the same problem gay and lesbian partners run into with hospital visitation and inheritance, simply because a person could choose to not acknowledge our union because we're both female.

Yesterday she wanted to buy a new dress, but because she looked like a man when we were shopping she didn't feel she could so much as mutter approval of something on the racks. We left without ever buying anything. Mine a frustrating existence sometimes, and I'm only a spectator.

I find myself in agreement with crimgal 100%. The post is grossly misleading with respect to the "personhood" being ignored. Further, I take exception to just patly saying that how a person identifies is their gender. It's extraordinarily subject to abuse, it's largely irrational, and it as a a view will end up being the brush that all views related to transgendered persons.

The story is more than enough to carry its own weight without inflating it superficially.

The rules vary by state to state, regarding what constitutes being declared legally female or male.

It all comes back to birth certificates, which in some states (Tennessee, Ohio) cannot have the gender-marker altered.

Most states apply a phallocentric approach: if the person has a penis, they're a male; otherwise they're a female. Don't get me started on how ludicrous this policy is.

Perhaps that's an oversimplification; however, that's pretty darned close to how the laws tend to work.

The CNN article covers the legal messes this creates pretty well.

In most states there are legal channels to go through that allow you to declare yourself under your "new" gender. I don't know how it is in Virginia, but transgendered persons can usually change their sex (though I think some states require them to be post-op). If she legally changes her sex to female, than there isn't a problem. She, however, had not done the paperwork to be recognized as a female. I think that is the issue here, unless Virginia doesn't allow transgendered people to legally change what sex they are considered. I don't agree with everyone having to fit into a gender binary, but that is currently the way the legal system is, and there are ways to get one's sex changed in legal records and identification if a person is transgender.

http://www.lambdalegal.org/our-work/publications/facts-backgrounds/page.jsp?itemID=31991108

Apparently in Virginia you can get your birth certificate legally changed to recognize your new sex. It might, however, be a pain in the ass to get done. You also need to complete some medical procedures, though not necessarily surgically altering your genitals.

Betty & I were married legally because she has an M on her license. Her identity is not M.

I did a speech about the intersections of same sex marriage rights & trans at Penn State Dickinson last year that helps clarify the unclarifable:

http://www.myhusbandbetty.com/?p=1408

There's a video version here:
http://www.dsl.psu.edu/groups/outlaw.cfm

helen

To state that this couple wouldn't have had this problem if the woman had complied with Virginia's requirements for a new birth certificate is either ignorant or disingenuous. First, there are a variety of reasons why many, perhaps most trans women and men cannot and do not have legally sufficient reassignment procedures: medical reasons, financial reasons, religious reasons, and or simple unwillingness to undertake a major invasive surgery if it is not medically necessary for the individual in question.

This is why the UK and Spain do not require surgery in order for sex change to be legally recognized. In essence, compliance with surgical requirements is impossible or cruelly impractical for many trans individuals, so that the state forces them under the knife in order to secure basic legal rights.

Moreover, statutes regarding change of birth certificate are typically vague regarding what qualifies as sufficient medical intervention. This has led to inconsistent application of the laws and uncertainty for individuals.

These issues are discussed in detail in my article, Against the Surgical Requirement for Change of Legal Sex, 38 CASE WESTERN RESERVE JOURNAL OF INT’L LAW 343 (2007).

Wow I can't beleive the "get over it" attitude I'm seeing from some commentators.

First of all, in states where you can amend birth records you need to have SRS to do it. Which should not be what recognizing people as women or men should be about. This girl was 18, what fantasy world do you live in where she would have access to thousands of dollars for surgery?

Virginia is one of the states that issues new [birth certificates for gender reassignment]. Had the woman in the cited story followed the process for Virginia, her womanhood would be recognized and her right to marry protected.

Thank you, Whitemore, for clarifying what the real issue is here. This woman did not go through the appropriate legal channels to get her gender changed, and therefore is running into difficulty with her marriage being legally recognized. Is it unfair? Yes, because if Virginia wasn't one of the states that had instituted a gay marriage ban, this wouldn't even be an issue.

However, fair or not, there was a way for her to legally marry her husband. She chose not to take it, and now that marriage may be declared invalid. Here's hoping she chooses to follow the legal channels to validate her marriage, and that the couple can remarry once the paperwork's out of the way.

Surgery takes money. Hormones takes money. A counselor and doctor to get hormones and surgery takes money and time. For most trans people this isn't so much (or at all) covered by insurance. While there are legal ways in some states for getting markers on licenses or a birth certificate to be amended or changed (which mainly depends on where you were born), the laws overlook health issues or lack of funds due to needing to eat , pay bills, children, etc. that may interfere. I guess for this person - and trans people in general - having money for surgery is the difference between being seen by the state as a gay or straight couple. Surgery cannot be the requirement for a valid identity. From what it sounds like, this person probably lives her life everyday as woman - and even if she didn't, we can't make "passing" (which is a phrase I hate) be the requirement for this either. I think the author is right, "If she identifies as a woman, she is a woman."

crimgal, i think you need to get your sex/gender terms in check. the bride was not a 'man' the state may consider her male, but not a man. man is a gender term not a sex term. it's true that states don't allow people to self-identify their sex, but that does not make her a man in anyway.

this entire fiasco just proves how ridiculous granting rights based on sex OR gender is preposterous.

apparently, in the aftermath, they changed the marriage form from bride and groom to male applicant and female applicant, that is HUGE as it changes from a gendered term to a sexed term, (not that they didn't already enforce their laws along sex lines, however)

To the commenter above who said that identifying gender by the preference of the individual is "subject to abuse," what do you mean?

To the commenter above who said that identifying gender by the preference of the individual is "subject to abuse," what do you mean?

Say, a male criminal decides to call himself female and wants to be jailed with other females? Or a male wants affirmative action simply because he calls himself female?

@ waxghost: I think they mean that anyone could identify as anything at any given time. However, I don't think it would be as widely abused as one would think.

Still, I would like to know some specific concerns.

This situation is rather confusing in legal terms. But I guess that's what happens when you try to make some gender & sexual relationships of adult people more "legitimate" than others- Especially in cases like this wherein lawmakers might not understand exactly what they're banning, who it might affect, or all terminology and concepts that may apply. How do you ban something when you don't even understand it?

Someone earlier mentioned that their partner is MTF and that a sex change might suddenly invalidate their relationship. That's terrible! Gender theory, politics and "non traditional" relationships have far surpassed the laws that try to mandate them- so why do we even have these laws? If two grown up people are in love, let them get married (if they want). How much more simple could it be?

waxghost: I can think of at least one which would be problematic, but is the result of an already flawed system of handling things. The draft: If the draft is reinstated, since the ERA hasn't passed, women would be ineligible for the draft. A man could, for the sake of "draft dodging" claim their gender as a woman so they wouldn't have to go to war. Of course, in a country where we could state our gender to be whatever we please, we would probably pass the ERA, and maybe wouldn't have the draft as an option, so I don't know if that is a realistic possibility of "abuse."

And I understand that hormones/surgery are expensive, however, that is the way the law is. The law is unfair, it should be changed, but so should the ban against gay marriage. The law is unfair to those who are not heteronormative, but I can't see how the state of Virginia doesn't have legal recourse to object to this if they have ways for a person to reassign their gender (however difficult and costly) and they have a ban on gay marriage. I think this woman is being discriminated against, but not in any way that isn't allowed by Virginia law.

What I find most surprising about many of these comments is the way they assume that any surgery Justine has had should be a) relevant to her status as a woman, and b)anyone else's business. Others have already covered the many reasons trans women (and other trans folks) might be unwilling or unable to have surgery, but it's striking to me that we're here in a public space asking about the state of this woman's genitals. We would never dream of discussing the state of any other stranger's bodies in this way, and we shouldn't do it with trans folks.

Wouldn't it be pretty simple to say that the gender of the person is what they say it is if they can show that they've been living as that gender for, say, at least 6 months?

How do you show that someone's been living as a certain gender for any length of time? That's legally ridiculous - how much discretion do we give a judge? Does the person have to wear certain kinds of women's clothing? Do they just have to swear and we take their word for it?

What most people are suggesting here is, for better or worse, that it'd be best for the state to just take someone's word for it. Sure, requiring a change of genitalia to be recognized is invasive and expensive, but it's also conclusive.

The policy implications of how to handle this is important and complex, and just letting someone identify themselves isn't enough, in my opinion. And, as others have mentioned, this person didn't go through the legal channels to change her gender. Tough shit.

Hopefully fucktardia manages to force a change in its gay marriage laws soon.

Say, a male criminal decides to call himself female and wants to be jailed with other females?

Though no discussion of trans issues is complete without someone suggesting an extreme and ridiculous hypothetical, the Curvature's post on transgender inmates and the prison system is always worth a link.

I was asking questions in order to explore whether there were satisfactory alternatives, tofu. Thank you for acting like I'm an idiot for doing so, and that people either need to conform or get over it.

the truth of it is that my partner Betty & I are married by legal loophole only, because her ID said M when we got married.

we are lucky that marriage is contract law, & contracts are legal as long as they were legal when they were signed. which ours was.

that doesn't mean that a health insurance company is going to care about how legal our marriage is. nor will your average asshole, just as neither will care whether Betty deeply knows herself to be female.

the bureacratic tie-ups of being married to someone trans change from state to state, from country to country, & sometimes, from city to city. likewise with anti-discrimination laws & hate crimes laws. being partnered to a trans person, or a trans person yourself, means not knowing exactly how your gender identity, or your relationship, are viewed legally *literally depending on where you're standing.*

By "personhood" I think Samhita meant this woman's fundamental right to be who she is and live as she chooses. If I was no longer allowed to have red hair, was forced into a profession I didn't want, etc, my personhood would b compromised. Yes you could argue that it would just be my redheadhood or journalismhood that were compromised, but those are a major part of me as a person. And they're practically nothing compared to one's gender.

This reminds me of the resolution that opponents of gay marriage in California are trying to get passed this fall. Their proposed resolution defines marriage as between 1 man and 1 woman and actually goes so far as to define a man as an adult human being with an inherited Y chromosome and a woman as an adult human being _without_ an inherited Y chromosome. Totally ignores transgender and intersex people. You should read the whole text because it's totally ludicrous - they spend most of their word count saying that marriage shall not be abolished, when of course expanding it to include gay couples is almost the exact opposite of abolishing it. It would be funny if it weren't so awful.

I can't beleive, but I'm surprised again!

Multiple people commentating that people can't self identify thier sex cause "perverted men will go and rape women" is the biggest red herring ever. That is the same line as to why no one should ever be allowed to have their gender marker changed.

Reactionary nonsense.

@ Aviva: Thank you.

This situation should help us see how government regulation of marriage hurts all queer people, not just the mainstream gay and lesbian people who usually get focused on. Instead we're arguing about who gets to be counted as a woman and what this woman should have done to be seen as one. The point is, the state is trying to say that this couple "deceived" it, and we should be critiquing the idea that the state has any right to decide what someone's gender is and who they should be allowed to marry.

The trouble is, that several courts have ruled that birth certificates are meaningless.

See Kantaras vs Kantaras Appeal:

A person's sex is established at birth so transsexuals cannot have their change in gender legally recognized or marry in Florida, a state appeals court ruled Friday.

In a case with potentially far-reaching implications, the 2nd District Court of Appeal in Lakeland said the 1989 marriage between a woman and a transsexual male was legally invalid because it amounted to a same-sex union barred by state law.

The ruling overturned a Pinellas-Pasco circuit judge's 2003 decision in the case of transsexual Michael Kantaras

From the American Bar Association

In Chicago, the trial judge ruled that Sterling S., a transsexual man who had undergone extensive medical treatment and lived exclusively as a man for more than twenty years, was nonetheless legally female, that his fifteen-year marriage to his wife Jennifer was invalid, and that he was not a legal parent to the couple's ten-year-old son.

...

Two other decisions involving transgender spouses have made the headlines in the past few years. Christie Littleton is a transsexual woman residing in Texas. After Christie's husband died in surgery, she filed a medical malpractice claim. The doctor responded by arguing that the couple's marriage was invalid and that she did not have standing to bring a wrongful death claim. The trial court dismissed Christie's claim on that basis. The Texas Court of Appeals affirmed the decision, concluding that "Christie was created and born a male" and continued to be legally male, regardless of her gender identity or how much medical treatment she had undergone. Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App. 1999). Shortly thereafter, J'Noel Gardiner, a transsexual woman in Kansas, faced a similar challenge to the validity of her marriage, with a similar outcome. When J'Noel's husband died intestate, his estranged son sued to invalidate the couple's marriage in order to inherit their estate. The trial court ruled in the son's favor, and the Kansas Supreme Court affirmed the trial court decision in an opinion that drew heavily upon the decision in Littleton. Estate of Gardiner, 42 P.3d 120 (Kan. 2002).

Actually, the hypothetical standard waxghost suggests - consistently living as x gender for x period of time - is pretty much the standard in the UK and Spain. In the UK that period is two years, and there's a special board of trans-aware experts that decides petitions for gender recognition. You can read about the law and its implementation at http://www.pfc.org.uk/

This is a far more sane approach to legal sex categories.

Here's a question, why is the government in the business of documenting gender at all? What purpose does it serve? If we "equalize" everything, then allow for gay marriage-style union, is there even a need for the government to have an official position on gender?

the other thing that worries me is that i don't want judges defining "man" and "woman" because their attempts, thus far, have been lame. "woman" usually ends up devolving into "people who can become pregnant" in one way or another, & that's disturbing to me as a feminist for a multitude of reasons.

>

Because addressing the perceived need for gender differentiation in, for example, prisons, public restrooms, and the military is a good deal more complicated than the marriage issue?

The whole question of whether a MtF (or FtM) should be counted as a man or a woman for marriage purposes is just an absurdity to me.

It's not a question the state should answer, hell, it's not one it should even ask in the first place.

All it is is a fundie mind trap.

Both trans and cisgendered people ought to be able to marry whichever person they chose to wed. It's just that simple.

The whole question of whether a MtF (or FtM) should be counted as a man or a woman for marriage purposes is just an absurdity to me.

It's not a question the state should answer, hell, it's not one it should even ask in the first place.

All it is is a fundie mind trap.

Both trans and cisgendered people ought to be able to marry whichever person they chose to wed. It's just that simple.

@dyke lawyer

Public restroom issues are not complicated. There are more or less "gender blind" restroom laws in NYC, CA, DC, and I'm sure some other places. The epidemic of crime you're imagining has yet to take place.

Prisons and the Military are inherently flawed institutions to begin with, throwing this in there would not make them anymore fucked up.

So basically, stop trying to police other people.

The whole question of whether a MtF (or FtM) should be counted as a man or a woman for marriage purposes is just an absurdity to me.

It's not a question the state should answer, hell, it's not one it should even ask in the first place.

All it is is a fundie mind trap.

Both trans and cisgendered people ought to be able to marry whichever person they chose to wed. It's just that simple.

Well, at least we can rely on the LGb -t press for great unbiased not in any way trans-misogynistic reporting...

{/snark}

http://blogout.justout.com/?p=406

irishgirl1983,

I don't disagree with your points, which is why I said "perceived need." My point was simply that convincing policymakers, courts, and/or the public on these issues is going to be very tough because of the reflexive attitudes involved.