Q. I was married in June, 2008 as Patricia B. to Jill G. I obtained a name and gender change court decree several months later. We now want to marry as a different-sex couple. Do we need to first dissolve the same-sex marriage?
Thanks for a challenging and specialized question which I don't normally encounter in my practice. It sounds like you are two of the 14,000 same-sex couples who married in California 2008. I can only give you impressions before researching a couple of issues and hence do my best to assist you now without more information that I would require to give a legal opinion. I don't want you to rely on this response without more, plus I don't intend by responding to your email to create an attorney-client relationship, which is true with all my writings.
First, I'm assuming that Patricia B. is your birth name, or that you had previously obtained a name change whether by court decree or prior marriage. I say this because Family Code section 354 (dealing with marriage licenses) requires a photo ID that accurately lists your given or subsequently legal name so I expect that is what you presented to obtain the license.
Second, your existing marriage to Jill is valid at least as of the date of marriage, for all statewide applications under California law. It is hard to imagine that your post-marriage gender operations (and hence post-marriage gender status as a male) in any way changes that. It makes me wonder what happens to an opposite sex couple where one subsequently completes the procedures that you have undertaken (i.e., opposite genders marry, but then one changes their gender so they are both now the same-sex) - would that invalidate the marriage? Complicated stuff.
Third, no California statute speaks to gendered changed individuals as
qualifying as a man (in your case) for purposes of marriage, where they
were born as a woman, for purposes of Family Code 300 or the amendment
to the California constitution (Proposition 8) that occurred after your
marriage. This means to me that it would require an appellate decision
(or legislative enactment) to provide such authority and I can't tell
you of any specific California case that has so found but, again, I've
not researched it in detail. If California does accept your sex change as
legally making you a male this would improve your position under federal law,
discussed below. Do you have an affidavit from your doctor verifying that
the surgery changed your sex designation? Have you investigated amending
your birth certificate? I recommend it. The legal viability of sex change
is a matter for states to determine, according to the 10th Amendment of
the United States Constitution.
Fourth, I would be concerned that dissolving your existing marriage without
a clear understanding of these issues could place you at risk in the sense
that, at least as of today, you can't remarry Jill IF you are legally
a woman. Hence, I would be very careful about dissolving your existing
marriage. You would have exactly the same rights in California as a same-sex
married couple as you would as domestic partners. However, if you dissolved
the marriage, didn't entered into a RDP, and then some court ruled
later that your remarriage was not legally valid you would have no legal
status other than possibly as a "putative" domestic partner
or spouse. This could negatively impact your legal rights and responsibilities,
and increase litigation costs, should the relationship end.
Fifth, at this time, federal law especially as it relates to tax filing status, isn't bound by any state's statutes and doesn't recognize same-sex marriage for that purpose and a number of others. This results from the Federal Defense of Marriage Act and a history of gender prejudice, among other things.
I also don't know whether federal law recognizes the gender change as making you a male since your sex-change operation (but it might, as discussed above). I am aware of at least one federal administrative case that suggests that if California recognizes your sex change operation, you might qualify as an opposite gendered person under federal law at least for some purposes (i.e., interpreting immigration rules and statutes per In Re Lovo-Lara).
Sixth, I can't see how remarrying under your new name, and post-surgery, would add anything to the mix, legally speaking. You have changed your name and so Jill is now married to Alex. The only area where it seems it might matter from a legal perspective is qualifying for some status or benefits under federal law. It doesn't add anything in California for you to divorce and remarry under your current name and gender. I recognize you haven't asked about federal legal status and this may be irrelevant to you, and I don't pretend to be an expert on federal law.
Seventh, I do understand why you would want your different sex status to
accurately track reality, and that that reality did shift after your marriage
by reason of the surgery. You and Jill are proud of what you both have
accomplished, and I imagine you would like to share the equal dignity
historically only accorded to opposite-sex couples by having your status
accurately recognized.
Finally, my feeling is that your transformation is complete and that you
need do nothing further, but I respect that you may feel that it is only
partial. If it is essential that the two of you be legally recognized
as an opposite sex married couple, then the answer lies with California
law, at present in terms of judicial interpretations and not legislative
enactments. My brief investigation does not reveal any California appellate
decisions or statutes that answer the question. Unfortunately, the type
of legal issues that you are grappling with tend only to arise upon a
divorce or nullity of marriage proceeding, where courts are squarely forced
to decide the issue, which is not my wish for you. Sometimes people file
sham divorces to create new law, but this is not something I would ever
recommend.
______________
I cannot resist speaking to your situation as a metaphor for all of us.
My belief is that until we each expand beyond our myopic judgments of
what others should choose for themselves our internecine cultural, gender,
familial, racial and nationalistic struggles will escalate. Mind you,
any student of human history knows that such is part of our collective
personality structure - that we ban together against 'outsiders'
to protect our group - and possibly this trait is even a reason for our
success as a species thus far, if not for the "others" who were
sacrificed. In an increasingly crowded and heterogeneous world the things
that worked before may presently assure our common peril.
Pioneering such as yours challenges us to rethink our biases, and sometimes
even to consider that they might only be artificial points of view 'full
of fit and fury, signifying nothing.' We can just as easily hold a
belief with righteous self-certainty one day only to hold its opposite
to be true with equal earnestness the next (or simply recognize that we
were mistaken in the first instance). In my experience as a family attorney
who has listened to countless individuals express what they think went
wrong with their marriage or domestic partner, and in the course of my
own life, I am always humbled how little we and I know 'for sure'
and how the "truth" shifts from moment to moment. When we misplace
humility we tend to become fixated on forcing others conform to our expectations
- inevitably leading to conflict.
Our brains may actually be hard-wired to hold biases. Most people recognize
they have little control over the thoughts that pop into our minds. I
suspect that we don't lose biases as an effort of will, but instead
that they fall away as part of a larger process. Until they do fall away,
the trick may be simply to remember to distrust these thoughts and not
to believe they are true simply because they arose. Certainly that strategy
might relieve the emotional component to prejudice.
All beings desire peace, and freedom. May each of us find it in our own
way. But perhaps the web of our interdependence requires that we allow
others to do so, first..., I don't know, dear reader. What makes sense to you?
T.W. Arnold
