Sex Change Status Snag US Divorce Case

by Peter Magee on August 8, 2013

Peter Magee

An article in the Sydney Morning Herald published on 1 January 2013 reports that an Arizona man who became famous for giving birth to three children after having a sex change operation is facing difficulties in his divorce proceedings that could prevent him from having his marriage legally dissolved.

The Judge involved in the matter is questioning whether the state’s same sex marriage ban prevents him from ending Thomas and Nancy Beatie’s union due to the fact that the marriage cannot be recognised as valid in the first place and therefore an Order granting divorce cannot be made.

Thomas Beatie was originally born a female “Tracey Lagondino” in Hawaii. He then underwent a double mastectomy and chest reconstruction surgery in 2002 and changed his name to “Thomas”.

Mr Beatie married his partner Nancy in early 2003 in Honolulu and became pregnant using donated sperm. The couple now have three children aged two, three and four years.

Judge Gerlach asked: “Are we dealing with a same sex marriage”? Judge Gerlach noted that in Arizona there was a ban on such marriages and also that Arizona fails to recognise same sex marriages from other States. In these circumstances a Judge could not make a Divorce Order as the marriage was not valid in the first place.

Shannon Minter, a Legal Director for the National Centre for Lesbian Rights who is involved in family law issues specialising in gay, lesbian and transgender people, said he could recall one transgender person who gave birth and whose union was dissolved in California.

Mr Beatie’s lawyer, David Cantor said that Thomas Beatie wants the divorce as an official recognition that his union with Nancy was legitimate and valid, even though it is now coming to an end.

Currently in Australia same sex marriages are not recognised under the Family Law Act as marriages. However in Australia laws provide for the recognition of de facto relationships which can include same sex relationships.

In Australia there has been caselaw upholding the view that marriage between a woman and a post-operative female to male transsexual was valid. In Australia there is no rule or presumption that a person’s gender for the purposes of marriage is determined by their gender at birth.

In particular the case of Attorney-General for the Commonwealth and “Kevin and Jennifer” and Human Rights and Equal Opportunity Commission (2003) upheld that a marriage between “Jennifer” and “Kevin”, born with XX chromosomes as a female was valid. As an adult Kevin had undergone a process of medical gender reassignment and had succeeded in obtaining a new Birth Certificate showing his sex as male.

If you are currently experiencing a separation from your spouse or partner feel free to contact us at Armstrong legal on 9261 4555 for your initial obligation free appointment.

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