The concept of gender identity – the inner, personal experience one has of gender, which may or may not be aligned with the present physical or biological markers of gender – has been with us for a very long time, but it is only in recent years that society is openly talking about it and that there are the beginnings of changes in the law to account for gender identity. With the Supreme Court’s historic ruling legalizing same-sex marriage in all 50 states only one year behind us, the question now turns to how state marriage laws intersect with issues of gender identity.
Transgender Individuals Can Get Married in Every State
Although the Supreme Court’s decision in the 2015 case Obergefell v. Hodges legalizing gay marriage was not centered on the issue of transgender rights, the decision nevertheless has huge implications for the ability of transgender individuals to get married to the person of their choosing. Prior to Obergefell, the issue of what person a transgender individual could get married to was based on the particular state law of the state the couple lived in. Thus, if same-sex marriage was illegal in a state, then a person who the state viewed as a man could not get married to another man, even if the first man identified as a woman. In some cases, the state would not allow this, even if the person had a full surgical transformation to biologically become a woman and amended her birth certificate to reflect this.
Following the Obergefell decision, however, all of these state-by-state approaches to gender identity are no longer relevant to whether the state will recognize a marriage involving a transgender individual, as it is a fundamental right of any two adult people to get married to one another, regardless of their sex or gender identity. Thus, whether a person has had gender reassignment surgery or what their birth certificate states with regard to sex will not come into play.
Transgender Marriages and Annulment/Divorce
One issue that has come up in marriages involving transgender individuals is whether the other person in the marriage may seek a divorce and/or an annulment based on discovering that their partner was born a different sex than the one they now identify with, or if a spouse decides they want to publicly express themselves as a different gender or undergo gender reassignment surgery.
As with marriage, rules regarding divorce and annulment are based on state law and so will change on a state-by-state basis. Most states have no-fault divorce, which means spouses can divorce for any reason, and so they may divorce over this or any other reason. Annulments are a different story, as an annulment would mean that the marriage was never valid in the first place. State laws on annulment generally do not address the issue of gender identity, but one common ground for annulment is when one spouse “perpetrated a fraud” to obtain consent to the marriage, and that fraud goes to the essence of the marriage (this is in fact a grounds for annulment in California). Thus, if one spouse was not aware of the other person’s issues or history with gender, it is possible that an argument could be made that an annulment is justified on those grounds.
For any questions on divorce law and annulments in California, contact the Law Office of Kelley C. Finan today to schedule a consultation to discuss your circumstances.