What Do You Do With an Accidental Same-Sex Marriage?

Jennifer Finney Boylan is a woman married to another woman in Maine. Boylan and her wife Deirdre did not get married immediately in the wake of last week’s legalization of same-sex marriage in that state, but instead have been wed since 1988. If you’re wondering how that’s possible, it’s because Boylan was a man 21 years ago. She wrote movingly in Tuesday’s New York Times about how her marriage has defied definition since undergoing the process to become a woman, which was completed when she was declared legally female in 2002. Boylan takes up the question of what determines whether someone is “legally” male or female, and it’s an especially pertinent one in the wake of the recent spate of ratifications of same-sex marriage in Maine, Iowa, and Vermont. The fact is that, because of individuals who change genders after marrying, there already are same-sex marriages throughout the country, including in states that have not yet passed same-sex marriage laws — and some in states that explicitly forbid such unions. The crossroads of gender and sexuality are so fraught when it comes to matrimonial law, and legislators seem unable to figure out what to do when two people who entered into a heterosexual, heteronormative marriage take steps to turn their union into a same-sex marriage, one where the “sex” denotes gender more than sexuality.

There is no real uniformity in how different states handle this. Boylan points out that if her marriage had ended prior to last week, she would not have been allowed to marry her wife again. However, Ohio does not recognize gender reassignment when it comes to matrimonial issues, so if Boylan were to enter into a marriage in the Buckeye State, she would only be allowed to marry a woman (never mind the fact that Ohio does not technically allow same-sex marriage). That’s not only illogical, it’s some kind of black hole from which no logic can escape. Likewise, any post-operative transgendered individual is only allowed to marry someone of the same gender, under the faulty pretense that the only gender that matters is the one you were born with.

Laws such as these are patently nonsensical, and they are the norm. Boylan’s op-ed mentions the 1999 case Littleton v. Prange, in which a Texas court ruled that “marriage could be only between people with different chromosomes.” Chromosomal analysis as the basis for a marriage’s legality? Wow. Just wow. At least I’m not the only one who is freaked out by what a minefield our legal system is when trying to determine what constitutes a marriage and, indeed, what constitutes gender:

A lawyer for the transgendered plaintiff in the Littleton case noted the absurdity of the country’s gender laws as they pertain to marriage: “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.”

Confused yet? I sure as hell am.

In the end, what should matter is not gender or sexuality, but love. But since we don’t live in utopia, families like Boylan’s have to watch their marriages be subject to legislative whims, moral projection, and pseudoscientific decrees about how chromosomes influence matrimony. Boylan says it best when she talks about her wife’s love: “Deedie stood by me [during gender reassignment], deciding that her life was better with me than without me. Maybe she was crazy for doing so; lots of people have generously offered her this unsolicited opinion over the years. But what she would tell you, were you to ask, is that the things that she loved in me have mostly remained the same, and that our marriage, in the end, is about a lot more than what genders we are, or were.” Amen to that.