Op-ed: The Importance of Marriage Equality to Trans Community

BY Advocate Contributors

April 10 2012 3:00 AM ET

Marriage for same-sex couples can be a divisive issue – not
just for straight people, but among LGBT communities as well. While many LGBT
people were thrilled when Maryland and Washington joined the growing list of
states affirming marriage equality, others continue to question the logic of
spending so much time and money on the marriage effort when other issues, like
health care access and economic inequality, are more pressing for many of us.

This issue can seem particularly remote from the daily
concerns of many members of transgender communities. A recent survey on
transgender discrimination conducted by the National Center for Transgender
Equality and the National Gay and Lesbian Task Force revealed that transgender
people are likely to live in extreme poverty, to be under- or unemployed, to be
denied health care and housing, and to be harassed in school. Chillingly, a
staggering 41% of survey respondents reported attempting suicide. (The full
report is available online at http://www.thetaskforce.org)

It’s no wonder that some transgender people are frustrated
by the significant resources that primarily lesbian and gay organizations have
devoted to marriage equality efforts in recent years, a concern also raised by
LGBT people of color, youth, and people living with HIV/AIDS. In the shadow of
pervasive poverty and despair, and with virtually no national conversation
about transgender rights, transgender community members see the allocation of
scarce LGBT movement resources (staff time, community money, political will) on
marriage as misplaced at best.

While this frustration is understandable, it may be
short-sighted. First, it ignores the fact that many transgender people are also
lesbian, gay, or bisexual, or in relationships that the government views as
legally “same-sex,” even if the partners consider themselves to be different
sex.

For instance, a marriage between a trans man and a non-trans
woman might or might not be legally recognized as a valid different-sex
marriage. That’s because the standard for having a person’s gender identity
legally recognized depends upon where they were born, and where they currently
live. While most states permit a person to change the gender on their birth
certificate, many require the person to have some kind of medical intervention
in order to do so — medical intervention that many transgender people may not
be able to afford, or may not want. Some states, including Idaho, Tennessee,
and Ohio, refuse to change the gender marker on birth certificates.

When one spouse is transgender and the other is not, a
marriage between two people with the same gender identity may also be
considered legally same-sex or different-sex depending on whether the
transgender spouse transitioned before or after the marriage. For example, a
marriage that was considered a valid different-sex marriage when the spouses
got married might get challenged as an invalid same-sex marriage after one
spouse transitions.

It’s a longstanding principle of family law that a marriage
that was valid when entered remains valid forever, and can only end through
death, divorce, or annulment. Yet we at Transgender Law Center regularly hear
from people whose marriages have been improperly reclassified as “domestic
partnerships” by their employer because of one spouse’s gender change, and who
have then been denied health benefits from the employer, or who are denied
spousal Social Security benefits after one spouse transitions.

Ultimately, whether a transgender person’s marriage will be
recognized as valid or not often depends on what state they live in, what
medical procedures they’ve undergone, and whether or not an employer or insurer
or family member chooses to challenge their marriage’s validity.

None of this would matter, though, if marriage between
same-sex couples were recognized by all states and by the federal government.
When laws that limit access to marriage based on gender are repealed,
transgender people benefit. And as long as marriage remains the primary means
for the state to distribute health, retirement, education, and other social
benefits — despite the fact that this means of distributing important benefits
may be fundamentally unfair — transgender people should have equal access to
those benefits and resources, regardless of each partner’s legal gender.

Of course, marriage equality won’t solve everything for
transgender people. Having access to health care through a spouse’s insurance —
for those people who happen to be married and happen to have a spouse whose
employer provides health insurance — will not guarantee coverage for
transition-related care. It won’t ensure culturally-competent health care
providers for transgender patients. Marriage equality won’t end bullying in
schools, and it won’t automatically create jobs in a shrinking economy or, for
that matter, create transgender antidiscrimination laws in the 34 states that
don’t have them. But marriage equality will, by definition, lessen government
scrutiny into what a person’s legal gender is. And ultimately, any decrease in
the government’s regulation of gender is good for all LGBT people.

 

MATT WOOD is a staff attorney at the
Transgender Law Center where his work focuses on health and employment law.
Transgender Law Center is celebrating its 10th anniversary of providing legal
assistance and advocating to end discrimination against transgender and gender
non-conforming people.

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