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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 https://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.