Divorce and Transgender Spouses
Today attorneys in federal court will argue to overturn the same-sex marriage ban that exists in Louisiana. They aren’t demanding that Louisiana begin issuing marriage licenses to same-sex couples, but they are trying to force Louisiana to recognize the validity of legal same-sex marriages from other states. The outcome of this case is not likely to be known soon, but this hearing comes as another Louisiana court puts those same-sex marriage laws into practice in a unique case.
Last month, Elayne Angel, a cisgender woman, filed for divorce from her husband Buck Angel. Buck Angel is an adult film actor and transgender activist. Buck and Elayne were married in New Orleans in 2003. Louisiana law currently bans same-sex marriage. Elayne is identified as female on her identifying documents and Buck had his documents legally changed to identify him as male. However, in the divorce petition, Elayne’s lawyers argue that the Angel’s marriage should not be ended by divorce, but should be declared absolutely null because Buck never had his genitals surgically altered.
Louisiana Statute Section 40:62 allows a person to change the gender marker on their birth certificate once they demonstrate they have been “properly diagnosed as a transsexual,…” have had “sex reassignment or corrective surgery,” and that as a result “the anatomical structure of the sex of the petitioner has been changed.” It is very unfortunate that the language of this statute is dated, vague, and places a large burden on an individual to prove that they exist in a way that affirms their gender identity.
Because of the statute’s vague language, it is unclear what always qualifies as “corrective surgery.” The argument being made by Elayne Angel is that a double-mastectomy (“top surgery”) is insufficient and that a person must also have genital alteration (“bottom surgery”) to comply with the law. Historically, Louisiana courts have granted changes to transgender people’s birth certificates without always demanding genital alteration under the statute. Moreover, Louisiana courts may be likely to accept the new birth certificate as sound evidence of Buck’s legally binding change in gender status.
In 2002, an East Baton Rouge Parish family court judge upheld the validity of a marriage between a transwoman and cisgender man, accepting that the woman’s changed birth certificate was accurate and that “if the Legislature is willing to change the sex on an individual’s original birth certificate when that individual has had sex reassignment surgery, then the Legislature has deemed that individual person to be a member of the post-operative sex for all legal purposes, including for marriage purposes.” However, not all courts see a changed gender marker on documents as sufficient evidence of gender identity.
Last year Thomas Beatie, a transman most known for giving birth to three children during his marriage, was denied a divorce in Arizona on the grounds that the court was unable to determine his legal gender. Mr. Beatie, born in Hawai’I, underwent medical gender confirmation procedures sufficient to be issued a changed Hawaiian birth certificate prior to his marriage. However, because Mr. Beatie retained a demonstrated capacity to give birth to children, the Arizona court chose to deny Mr. Beatie’s gender identity and declare the marriage same-sex and therefore outside of the Arizona court’s jurisdiction.
Essentially, in seeking a divorce, a married transgender person may have to prove their gender identity to the court all over again. This is just one of many ways that transgender individuals are forced to undergo repeated, invasive legal scrutiny to which cisgender people are never subjected. As a result, transgender people can have their rights denied and feel immense pressure to subject themselves to medical procedures or to live perpetually marginalized lives, avoiding contact with the legal system. By removing Louisiana’s ban on same-sex marriages, the gender identity of spouses would become irrelevant, and one of the many legal hurdles transgender individuals face would be removed.
While a divorce may seem like a relatively minor affair, it can have major consequences that directly impact the safety and self-determination of a transgender person. A valid marriage can be ended by a divorce decree that undoes the legal bond. When a marriage is ended in divorce, the spouses have the opportunity to separate formerly joint property and have judgments made about any spousal support that should be paid. Otherwise, a court can refuse jurisdiction over the case (as was done in the Beatie divorce) citing the Louisiana law that refuses recognition of a same-sex marriage from any jurisdiction. A third outcome, being sought by Mrs. Angel, is for a judge to deem a same-sex marriage absolutely null because it was not properly formed under the law and in essence never existed.
For Buck Angel, as his divorce proceeds, the court’s judgments about his gender identity will be crucial. Buck claims that Elayne has moved $500,000 from their joint bank accounts and is requesting $2,000 in monthly alimony support. Because Louisiana is a community property state, under a divorce judgment Buck could be entitled to one half of all the assets acquired jointly, and any proceeds from the joint property. Because both Buck and Elayne have produced products that are sold, those profits could be subject to division on an ongoing basis. If their marriage is declared null or outside of the court’s jurisdiction, Buck could have to leave the marriage with only those things he currently owns or can gain by mutual agreement with Elayne.
A guidebook written for Louisiana family court judges advises that the gender identification made on a person’s birth certificate is not necessarily proof positive of “what a person’s sex is for determining whether a couple is a same sex couple.” This means that even after a transgender person satisfies all the legal requirements to have the state recognize their correct gender identity, and have that gender officially reflected in legal documents, a court has discretion to ignore what the identifying documents say and determine an individual’s legal gender all over again.
In the earlier case out of East Baton Rouge Parish, the judge found the changed documents to be compelling and binding evidence of a transwoman’s female gender and that her marriage to a cisgender man was valid and binding. However, in the Arizona case of Thomas Beatie, the Judge found that despite the state-issued documents identifying Thomas as male, his documented ability to give birth raised doubts about Thomas’ gender identity that had not been sufficiently answered. As a result, the Arizona court deemed Mr. and Mrs. Beatie had a same-sex marriage that is not recognized for any reason, including divorce, in Arizona.
So, for Buck and Elayne Angel, the issue of Buck’s legally identified gender is at the core of their divorce case. If the Louisiana court follows the practice of the East Baton Rouge judge and relies on Buck’s identifying documents as certain proof of his gender identity, then Buck and Elayne will have a legally valid marriage between people the court identifies as male and female that can end with a binding divorce judgment entitling them to a split of community property and potential spousal support. If the court follows existing Louisiana judicial guidelines, and the practice of the Arizona court, all the time, effort, money, and emotion that Buck spent having the state affirm his gender identity will not necessarily prevent him from having to go through that all over again only to have a judge reach a different decision and decide that Buck is female and that his marriage to a cisgender woman is a same-sex marriage.
If the court does deem Buck and Elayne’s marriage to be a same-sex marriage, there are still two possible outcomes. Louisiana law says same-sex marriage is both statutorily “absolutely null” and constitutionally “unrecognized”, so it is unclear which legal status should apply. This subtle difference in language means the difference between a marriage that a court can deem to have never legally existed (absolutely null), and one that a court says exists in other jurisdictions outside of Louisiana but cannot be recognized for any purpose, including divorce, in Louisiana (unrecognized).
If the marriage is deemed to be same-sex, courts tend to find the marriage “unrecognized” under Louisiana’s Defense of Marriage amendment and therefore no divorce judgment can be issued, nor can a Louisiana court establish any property settlement or alimony payments because such actions would imply recognition of the marriage as legally existing. However, even though Louisiana cannot recognize the same-sex marriage because of the Defense of Marriage amendment to the Constitution, the marriage still effectively exists in a fully binding way in other jurisdictions. And it would be possible for a divorce to be granted in another qualifying jurisdiction. Unfortunately, this would result in more time, money, and emotional energy spent seeking the divorce and more time during which the spouses could be forced to remain jointly bound, specifically in financial matters.
The second possible outcome is the outcome Mrs. Angel is specifically requesting. Under Louisiana Civil Code, it is possible that the court could deem the Angel’s marriage same-sex and absolutely null. Because being same-sex is an “impediment” to the marriage contract, the Court can say that the contract was invalid from inception and therefore never actually existed anywhere at any time. What’s important though, is that while declaring the marriage absolutely null would dissolve the marriage it still allows for the division of community property or alimony payments.
Louisiana Civil Code allows for a spouse who didn’t know the marriage contract would be invalid to seek the same benefits as the spouse of a valid marriage. It could be persuasive if Buck’s lawyers argued that when Buck was granted identifying documents affirming his male gender identity, Buck believed that he and Elayne were no longer deemed a same-sex couple and that their marriage would be valid from inception to dissolution. This argument would make the legality of Buck’s claims for community property and alimony based on the existing affirmation of his legal gender identity rather than the Court’s current, potentially different, perception of his gender identity.
The divorce of Buck and Elayne Angel is a clear demonstration of the unique and complex legal challenges that transgender individuals can face. For straight and cisgender couples, a marriage and subsequent divorce can be granted with relatively little state intervention. Cisgender individuals will likely never have to face the possibility of undergoing repeated judicial investigations of their genitalia or what medical care they intend to receive, having to prove over and over what physically qualifies them to claim something indisputable - who we know ourselves to be .
So, as arguments over the legality of Louisiana’s ban on same-sex marriages take place, it is important to remember the far-reaching impact that such a ban has. Because The Hite Law Group specializes in both non-traditional family law and LGBTQ representation, we are uniquely equipped to assist transgender individuals as they face the conclusion of a relationship. We continue to remain fully educated on the current law of Louisiana as we closely monitor its possible progress.
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