Protecting Your Marriage after Transition
Q: Dear Jennifer,
I am a transitioning male-to-female transsexual living in Vermont. My wife and I have decided to stay together after my transition. We love each other and choose to live as partners and raise our children together.
Are there any laws that will affect our ability to retain our legal marriage?
Thanks for your time.
April
A: Dear April,
Congratulations. You are one of the many people across the country (and around the globe) who have successfully transitioned within a marital relationship. As long as your marriage was lawful when you entered it, there is no reason why your transition during the course of your marriage should invalidate it. To the contrary, there are strong public policy reasons why no otherwise lawful marriage should be invalidated simply because one of the spouses obtains appropriate medical care and treatment, including treatments and procedures relating to gender confirmation.
Nevertheless, given the proliferation of laws (including in Vermont) defining marriage as the relationship of one man and one woman, there remains the possibility that your otherwise lawful marriage could be subject to challenge. Courts are split on whether marriages entered into after a transgender person has transitioned are valid. However, at this time, there are no published decisions on whether an existing marriage can be voided simply because one of the spouses undergoes transition. For the most part, couples in this circumstance have avoided legal problems because it is very difficult for anyone other than either spouse to challenge the validity of the relationship.
Legal problems could arise when one spouse dies and the other attempts to collect survivorship benefits or to claim inheritance or other tax benefits that are restricted to married couples. Alternatively, an employer may challenge the validity of the marriage in the context of trying to exclude the spouse from an employer-provided health plan.
For now, you should assume (and act like) your marriage is valid and go about your life accordingly. At the same time, just to be safe, you may wish to consider taking whatever steps are possible in your state -- including executing a will, powers of attorney, health care proxies and relationship contract -- to protect your relationship should the unlikely possibility of a challenge to the marriage arise. While these measures fall far short of the protections of marriage, they may provide some minimal protections during a time of crisis.
With thanks to Shannon Minter, senior staff attorney for the National Center for Lesbian Rights and author of Transgender People and Marriage: The Importance of Legal Planning
Sincerely,
Jennifer Levi
Levi is an attorney with Gay & Lesbian Advocates & Defenders.
Nov. 14, 2001