Married couple navigates murky legal ground after one partner undergoes sex change
January 28 2005 1:00 AM ET
Judi Howden went into her marriage knowing full well that one day her husband might become her wife. The couple stayed together--even as Howden's husband, Michael, underwent a sex-change operation that transformed him into Mikayla. That surgery also landed them in a murky area where gender and law collide. Their marriage--once between a man and a woman--is now between a woman and a woman, despite a ban on such unions in 40 states, including New Hampshire.
Their experience highlights a legal catch-22. While states can either recognize or refuse to recognize someone's new gender following a sex change, either decision inescapably permits some form of same-sex marriage.
If the gender change is recognized, then existing heterosexual marriages such as the Howdens' become same-sex. If recognition is denied, a de facto same-sex marriage emerges since the spouses' genders differ only on paper, not visibly. "I have no answer to it," said state representative Dan Itse, a Republican who supports the state's same-sex marriage ban. "We have ventured where angels fear to tread."
The federal government must decide if Mikayla Howden, a U.S. citizen born overseas, can update her birth certificate. It hasn't yet ruled, and Shannon Minter, legal director of the National Center for Lesbian Rights in California, said the Bush administration has not been as accommodating as earlier administrations.
According to the center, four states don't permit gender updates: Tennessee, Ohio, Kansas, and Texas. About half of the remaining states do. A firm policy hasn't been legally well established in the remaining states, including New Hampshire, said Minter.
"Whether or not society will acknowledge our marriage, I think, is my biggest fear," Judi Howden said. "That someday, someone may pass legislation that says, 'Because you are now two females, you are no longer married.' For anyone to say that they have the right to break up a family, I don't think is right."
The Howdens' marriage clearly was legal when it began, and same-sex marriage bans cannot automatically invalidate it, Minter said, just as states don't automatically annul marriages for adultery or abuse.
But at least one conservative group would like to change that. The Reverend Louis Sheldon, founder and chairman of the Traditional Values Coalition in Washington, D.C., said marriages such as the Howdens' should be dissolved. "Absolutely," he said. "We don't want the roof to leak in any place. We must make sure that marriage is protected."
Sheldon's coalition, a lobby claiming more than 43,000 member churches, is crafting an amendment to the U.S. Constitution to ban same-sex marriages and civil unions. The Howdens, he said, have slipped through a "legal loophole."
Judi Howden may be in a legal loophole, but she said she's happy. Her household is like many across America. There are prayers at mealtimes and children's toys in every room. Her wedding to Michael Howden nearly four years ago--her second marriage--has produced love and another child. She said she struggled with Mikayla's emergence but struggled even more with the idea of separating. "There was so strong of a connection for Mikayla and I," she said. "I never knew that there was such a relationship out there in the world."
Social conservatives often portray same-sex marriage as a moral issue. But Mikayla Howden called changing her gender a life-and-death decision, not a lifestyle choice. Living as a man was fundamentally wrong, she said, and nearly led her to suicide. "What are you going to pick? You certainly hope for the point of wanting to pick life," said Mikayla Howden, who changed her name in 2003 and underwent a
sex change in September. "So many of us, because of society, choose death."
Transsexuals are not the only people who have sex-change operations. Surgery also is used to treat "intersex" conditions, such as improperly formed genitalia. And updating birth certificates isn't the only legal challenge facing transsexuals. State bans on same-sex marriage complicate such core activities as buying and inheriting property together or collecting insurance.
In 1999, a Texas appeals court upheld a ruling against a transsexual woman who married a man. The court ruled the marriage an invalid union of two men, denying the woman money from a wrongful death settlement after her husband died.
Cases in Florida and Illinois are addressing whether transsexual men are legally fathers of children who were born through artificial insemination or adopted into their families while they were married. And in California, a transsexual woman is challenging a ruling that denied her husband citizenship because she was born male, Minter said. "The human consequences are really painful," Minter said.
For the Howdens, the responsibilities of home and raising a family--a child of their own and two from Judi Howden's previous marriage--have helped them through tough emotional times. So has open, honest communication. "It isn't always easy, but it's the most important, even when it comes to your fears," Judi Howden said. "Because when you hold those fears inside, it doubles them." (AP)