Court says transgender man entitled to divorce despite complications

A transgender man is entitled to get a divorce in Arizona from his wife even though he kept his uterus and bore children with her, the state Court of Appeals ruled Wednesday.

In an unusual decision, the judges said the only relevant fact for an Arizona judge to consider is whether the state that solemnized the marriage recognized the spouse as male. And in this case, they said, Hawaii did issue him an amended birth certificate, making his genital structure irrelevant.

The ruling also affects similar marriages performed in Arizona.

Judge Kenton Jones, writing for the unanimous appellate court, said it would be a constitutional violation for Arizona to fail to accept Hawaii’s decision that this was a heterosexual couple.

But the court made it clear that it was not saying that same-sex couples legally married elsewhere could seek a divorce in Arizona.

Jones said he and his colleagues are constrained by existing state laws that limit marriage here to one man and one woman. And that also means Arizona need not recognize the marriage — or handle the divorce — of same-sex couples married in other states.

All that, however, could change by the end of the year: A federal judge in Phoenix has two cases in front of him challenging various elements of the state’s ban on gay marriages. And even if the judge refuses to force the state to allow same-sex nuptials, he could decide that Arizona has to recognize such marriages that were legally performed elsewhere.

The case involves Thomas and Nancy Beatie.

Thomas was born a female and underwent medical procedures toward changing his sex.

He obtained an amended birth certificate after getting what Hawaii required: an affidavit from a doctor testifying that psychological and medical testing determined his “true gender” to be male. He also went through some surgery to change his appearance.

He then married Nancy in Hawaii at a time when that state only recognized heterosexual marriages.

Now living in Arizona, the couple petitioned for divorce. But Maricopa County Superior Court Judge Douglas Gerlach said he could not legally do so because Thomas had retained the ability to bear children and, in fact, gave birth to three following his marriage because Nancy could not.

Jones said that decision was wrong.

He said Thomas had complied with Hawaii laws and was “legally considered male.” And Jones said Thomas did not hide his transgender status from Hawaii officials.

Potentially more significant, Jones noted that Arizona, like Hawaii, has a procedure for an amended birth certificate. And he specifically pointed out that neither state requires require anyone to undergo specific surgical procedures — or agree to forego procreation — to have his or her gender changed.

Jones said that leaves only the matter that Arizona has a law which requires this state to recognize marriages legally valid where performed, with the sole exception of same-sex weddings.

“At the time Thomas and Nancy married, Thomas possessed dispositive, state-issued credentials reflecting his ‘male’ status, and Nancy held similar credentials that dispositively  reflected her ‘female’ status,” the judge wrote. He said that means their marriage was lawful where performed.

“Consequently, Thomas and Nancy’s marriage is also valid in this state,” Jones continued, and the laws against recognizing same-sex weddings do not apply.

Jones said the ruling should be no surprise, given that Arizona itself allows for amending birth certificates for those who are undergoing sexual reassignment. And he said once someone has such an amended certificate, he or she is entitled to the same rights as anyone who had been issued a certificate at birth.

“To determine otherwise would run afoul of the equal protection clause of the U.S. Constitution,” Jones wrote.

Wednesday’s ruling sends the case back to family court for the judge there to not just handle the divorce but also deal with pending matters of child custody, child support and property division.