Florida, USA
— In Florida, a state circuit court judge
ruled that the marriage of a transsexual male to a
woman was legal under Florida law and awarded him custody
of the woman's two children, one of whom he had adopted
and the other conceived by donor insemination during the
marriage.
The man's wife, who was
seeking a divorce, argued that the marriage was never
valid because the husband was not legally a male when the
couple applied for a marriage license. In effect the wife
argued that since the husband was female, she and her
husband were involved in a lesbian
relationship.
But the judge ruled that
the husband was "medically, socially, and legally" male,
meaning essentially that he physically looked like a man,
behaved like a man and adopted the social role of a man,
so he was for most practical purposes a man. It was, in
short, a judicial version of "close enough."
<http://www.courttv.com/trials/kantaras/>
ALMOST simultaneously
an Australian court upheld the legality of the
marriage of a female-to-male transsexual and his wife,
ruling that the husband was a man in the ordinary,
everyday sense-he looked, sounded and acted like a man.
The court ruled so even though the transsexual male had
not had a penis created for him. "Not quite so close,"
the court was saying, "but still close enough."
<http://www.austlii.edu.au/au/cases/cth/family_ct/2003/94.html>
An Australian lower court
had ruled similarly in the same case, concluding that sex
should not be defined exclusively by one criterion
(presumably genitalia) but should include other factors
such as "brain sex"-i.e., the sex the person subjectively
feels himself or herself to be <http://www.austlii.edu.au/au/cases/cth/family_ct/2001/1074.html>.
It is worth pointing out
that the courts are not saying transsexual males are
really men. Courts cannot do that and that was not the
issue. Courts are in the business of making legal
determinations, not ontological ones. They are charged
only with doing their best to fit the complicated reality
of human life into existing legal categories, which is
what they tried to do.
Both cases will be cited
as gains for "GLBT" rights. The New York Times quoted one
Lynne Gold-Bikin, of the American Bar Association, as
saying of the Florida case, "This is a major victory for
alternative lifestyles." But you have to
wonder.
It is not clear how the
Florida ruling affirms any "alternative lifestyles." The
whole focus of the case was the effort by a transsexual
male to prove that he should not be viewed as a woman in
a same-sex relationship, but a nice, normal heterosexual
guy in a heterosexual marriage-in short, that there was
nothing "alternative" about his life or his lifestyle at
all.
And far from benefiting
gays and lesbians in any way whatsoever, the ruling
conspicuously reaffirmed opposite-sex, heterosexual
marriage as normative and exclusionary.
Ironically, the Florida
transsexual's case was argued by the National Center
for Lesbian Rights <http://www.nclrights.org/>,
which won by convincing the court that its client,
although born a woman and married to a woman, was not
female and therefore not a lesbian. How this supports
lesbian rights is obscure.
Presuming limited NCLR
resources, some lesbian in a painful legal battle
somewhere in the United States is not receiving NCLR
support because NCLR spent its money proving someone was
heterosexual and bolstering heterosexual
marriage.
In fact the NCLR
"victory" is a legal setback for some transsexuals.
Consider a person born a male and attracted to women, but
who understands himself to be female. He then takes
hormones and undergoes surgery to become a de facto
female. But since nothing about hormones or plastic
surgery alters the sex a person is attracted to, since
she is still attracted to women, she now views
herself-and is viewed by others-as a lesbian.
If she meets the woman of
her dreams and wishes to marry, under previous law she
could display her male birth certificate, marry and live
happily ever after. But under the Florida ruling, she no
longer has this recourse. Instead, body configuration,
social role and mental sex are determinate: Heterosexuals
1, Lesbians 0.
So gays and lesbians gain
nothing from (ostensible) heterosexual transsexuals being
able to marry. But transsexuals, all transsexuals, would
gain from gay marriage.
If same-sex and
opposite-sex marriage were equally legal, not only would
gays and lesbians be able to marry, so would transsexuals
since they would not have to prove to a court that they
were the opposite sex of their partner but could marry no
matter their sex-of-origin, sex-of-outcome or sexual
orientation.
Our goal, after all, is
the right of any two adults to legally join their lives
together in a reciprocally supportive relationship, so in
continuing to press for marriage for ourselves, gays and
lesbians inadvertently benefit others as well.
