By Melissa Myers and Michael J. Tucker, Aug. 28, 2014.
MELISSA MYERS:We’re chatting with Claudia Work, a Phoenix lawyer with extensive experience in LGBT family law matters. Claudia has been involved in Arizona’s high-profile Beatie vs. Beatie divorce case.
CLAUDIA WORK: The Arizona Court of Appeals just ruled in the Beatie case that the marriage of a woman to a female-to-male transgendered husband was a valid opposite-sex marriage under Arizona law for purposes of an Arizona family court to be able to grant them a divorce.
MICHAEL J. TUCKER: The trial court analysis focused on the fact that the husband bore three children during the marriage. Did the Court of Appeals also look at that issue?
WORK:Yes, and the Court of Appeals recognized the ability to procreate in any particular manner does not define that person’s gender for legal purposes. What is important is whether the person has complied with the law in the state they obtained the gender change. Arizona cannot second-guess the gender decisions of another state. Although the judge focused on the fact that the husband retained the ability to conceive and give birth, it wasn’t a important factor in this case.
MYERS: What will be the impact of this decision?
WORK:A three-judge panel of the Court of Appeals ruled that the marriage, which was solemnized in Hawaii in 2003, after the husband did all that was legally necessary to change his gender, is considered valid in Arizona and concluded that the marriage wasn’t a same-sex union.
TUCKER: So that was a reversal of the trial court’s decision?
WORK: Yes. Last year, a family court judge denied the divorce request after getting mired down in the details of the husband’s biological capabilities and ruled that Arizona’s ban on same-sex marriages prevented the marriage from being recognized as valid because he thought the ability to bear a child means a person is female regardless of what anyone else says.
TUCKER: Claudia, what is the impact of this decision, both in Arizona and nationwide?
WORK: Unfortunately, we do not yet live in a society where people are free to self-identify as their true gender without government interference dictating what steps a person must take to legally change their gender. The narrow issue that the Court of Appeals stated it was deciding was whether Arizona must recognize a marriage entered into in another state that was an opposite-sex marriage under the laws of that other state.
MYERS:So, Arizona courts must now give deference to other states’ solemnizations of marriages that are deemed to be opposite-sex marriages under that state’s definitions?
WORK: Right. Yes. If under Hawaii’s law, the Beaties were a man and a woman at the time of marriage, then that is the end of the inquiry for an Arizona court. The decision also clarifies that Arizona cannot essentially overrule another state’s determination of gender as long as the gender determination complied with under that state’s law.
TUCKER: That seems particularly important in a society where we have the freedom to cross state borders and live anywhere we please.
WORK: No one should live in fear that their gender will legally change because they want to move to another state. Fortunately, I am not aware of any state in which there would be a contrary ruling under these facts.
MYERS: How did this case get all the way to the Court of Appeals?
WORK: In this case, the family court judge failed to apply the legal standard applicable to gender change under Arizona law, which would have ended the discussion immediately. In Arizona, a person can legally change gender upon submission of proof of a chromosomal count that is different that the count for the gender they were assigned at birth, or a written statement by a doctor verifying that they had a “sex change operation,” which is what the husband did.
MYERS: So what’s our takeaway from this decision?
WORK: I expect that the impact of this decision will be short-lived. Once Arizona, and all other nonrecognition states, legally recognize same-sex marriage, these legal issues will be a thing of the past. Whether a spouse is legally male or female will not matter for purposes of marriage and divorce.
