"It's my hope that people who are reluctant to embrace same-sex marriage will see that it has been with us, albeit in this one unusual circumstance, for years," writes Jennifer Finney Boylan in an Op-Ed in today's New York Times. That "one unusual circumstance" is one Finney Boylan is living -- born a man, she married a woman before transitioning from male to female. Legally female since 2002, she has also remained legally married to her wife, Deirdre Finney. Yet until last week, when gay marriage was legalized in her home state of Maine, Finney Boylan would not have been allowed to marry another woman if her first marriage hadn't worked out. (Fortunately, it has. "[Q]uite frankly, my spouse and I forget most of the time that there is anything particularly unique about our family, even if we are -- what is the phrase? -- 'differently married.'")
The bulk of Finney Boylan's insightful piece reveals that actually, when it comes to transgender people and what Miss California Carrie Prejean memorably called "opposite marriage," varying state laws create far more than just one unusual circumstance. It's not only that marriage laws differ from state to state; it's that the definitions of "male" and "female" do. In Kansas, "any transgendered person who is anatomically female is now allowed to marry only another woman" -- after a court decision in which a postoperative transsexual woman was denied an inheritance from her late husband, on grounds that she was "really" a man, and therefore the marriage was invalid. Texas law says marriage is restricted to couples with one Y chromosome between them -- so trans-women and female-identified people with Androgen Insensitivity Syndrome can choose to marry partners of the same gender. ("This ruling made Texas, paradoxically, one of the first states in which gay marriage was legal.") In the case that led to that ruling in Texas, the transgendered plaintiff's lawyer said, "Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male." Buh? That scenario only involves two genders, and I'm completely confused.
Which is the whole point. "How do we define legal gender?" Finney Boylan asks. "By chromosomes? By genitalia? By spirit? By whether one asks directions when lost?" Heh. By trying to force people into strictly "male" or "female" categories -- as opposed to acknowledging the spectrum of gender that exists in the real world -- states that prohibit gay marriage are painting themselves into corners. Unless they decree that there can be no such thing as a valid marriage involving a transperson (and I apologize for giving them any ideas), the reality is that every state is already home to what somebody would define as legal same-sex marriages. And the world hasn't ended. Go figure.