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OutServe Magazine | November 28, 2014

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Love and Marriage: What About Transgender Military Partners?

Love and Marriage: What About Transgender Military Partners?
Brynn Tannehill

In the past few months, same sex military partners have been part of the collective American conversation. When the Fort Bragg Spouse’s Club resorted to naked discrimination and active condescension to keep Ashley Broadway out, it was splashed all over the news. When Secretary of Defense Leon Panetta extended as many benefits as possible to married same sex partners under the Defense of Marriage Act (DOMA), the LGB community celebrated. When the Supreme Court heard oral arguments on the constitutionality of Article III of DOMA, the plight of same sex military couples was front and center in the reasons for striking the law down.

Love and Marriage

However, as all this was going on, I realized that another situation has gone unmentioned. What happens when the spouse of a military person is transgender? Some might argue that this is a very rare situation, and doesn’t need attention. However, my recent interactions with a number of transgender people associated with the military say that this situation is far more common than people realize.

A few weeks ago a trans woman in the Dayton area sent me a message asking me if I remembered a female colonel I worked for while I was still on active duty. I did, and replied that I liked her because she generally had a good read on who everyone in the command was and what they were doing. What she wrote next blew my mind. “She came out as a lesbian after she retired in 2008. We’re married now.” A little further digging revealed that they had met and gotten married after the trans woman had transitioned. However, because of military regulations and DOMA, the trans woman did not have base access, Tricare, or any of the other benefits the spouse of a retired colonel would normally have.

In short, the military regards them as a same sex couple. But my marriage is regarded as a heterosexual one because I transitioned after we were married, even though in both cases we are trans women married to another woman.

At about the same time, I also spoke with a trans man in the military. He talked about the difficulties he and his boyfriend, a civilian trans man who lives in Washington DC, expect if they get married. Another situation that came up in discussion recently was a trans woman (MTF) I know who is closeted, but on active duty. She is married to a trans man (FTM) who is just starting transition. When the trans man civilian spouse went to medical to start hormone therapy, they refused to treat him unless his spouse came in and verified that she knew what was happening and approved.

Given all of these situations, figuring out which marriages the government will regard as gay or straight is a mind boggling exercise in one of the grayest areas of law. In the case of the retired colonel, the marriage is gay, but only because the trans woman transitioned before the marriage and wasn’t born in Idaho, Ohio, Tennessee, or Texas (where birth certificate gender changes are not legally allowed). However, the two trans men may or may not be a gay marriage, depending if the one in DC changed his SSN gender marker before or after they got married. The trans woman in the military married to a trans man is a heterosexual couple, but the trans man can’t change his gender in DEERS because of DOMA.

I approached four of my friends who practice law in the LGBT community about this, and how the federal government determines if a couple is same sex or opposite sex for the purposes of defining marriage.

I got four different answers.

I did have a long conversation with Jillian Weiss of Lambda Legal, who summed up the situation. It is mostly up to the states to determine whether a marriage is gay or not for federal purposes. Unfortunately, this isn’t very helpful to transgender people, since when it comes to transgender people, marriage law varies radically from state to state. A lawyer in seminal transgender marriage law case of Littleton v. Prange noted in 1999:

“Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

Legal reasoning since then has been divided, and has often involved complex constitutional arguments such as the full faith and credit clause. In general, though, for purposes of estate such as In re Gardiner, birth sex has been treated as the gold standard of determining whether or not a marriage is gay.

Jillian also reiterated what I was finding out on my own; there is no such thing as legal gender. There is only legal gender for a specific purpose. I am female on my driver’s license, on my passport, in my civilian company’s personnel database, and with my health care provider. However, because they didn’t offer partner benefits when I started (that changed this year on January 1), I was male for the purposes of my marriage. Just to keep things interesting, I am male in DEERS (the military personnel database) because my spouse is female in the system, and as a result of DOMA, the software will not allow me change my gender in the system.

In the end, no one can seem to agree whether a marriage involving transgender people is same sex or not. But, marriages involving transgender people do happen, and involve the military more than people know. However, until the military recognizes all marriages and DOMA is struck down, the Gordian knot that is transgender marriage law represents a barrier to determining how to effectively integrate transgender people into the military.