On November 6, 2012, the United States of America re-elected Barack Obama to his second term as President. But more than that happened on Tuesday. For the first time ever, Minnesota became the first state to turn down a constitutional amendment defining marriage between one man and one woman at the ballot.
While the laws regarding same-sex marriage in Minnesota remain unchanged, Maine and Maryland now allow couples to marry. The implications of the now eight states that allow same-sex marriage have a great impact upon transgender communities. The definition of transgender, like any identity, is ever evolving and different for every person who identifies as such. Some argue that the term is “generally used to refer to individuals whose gender identity or expression does not conform to the social expectation for their assigned sex at birth.” See Transgender Rights by Paisley Currah, Richard M. Juang, and Shannon Price Minter (2006). Others believe it means an individual “of any age or sex whose appearance, personal characteristics, or behaviors differ from the stereotypes about how men are women are ‘supposed’ to be.” See “Transgender Equality: A Handbook for Activists and Policymakers (http://www.thetaskforce.org/downloads/reports/reports/TransgenderEquality.pdf). Others still have used the term as an umbrella term for all those who identify as transgender, transsexual, gender non-conforming (GNC), cross dressers, and many others. See Transgender Jurisprudence: Dysphoric Bodies of Law by Andrew N. Sharpe (2002). The list is endless.
The Social Security Administration leaves the discussion of what gender or sex a person is within a discussion of same-sex marriage rather than personal self-identification. It is for this reason that the recent countrywide trend towards legalization of same-sex marriage is significant for transgender communities. In SSR 78-11, the Administration looks at the question of “whether the marriage of the wage earner, a transsexual, is valid.” The question of whether a person has the capacity to marry is determined by state law. For example: whether two individuals are of “opposite sexes” or are of age, etc. However, even if a same-sex couple in Maine or Massachusetts were to be married, their union would not be recognized by the federal government under section three of the Defense of Marriage Act (DOMA). That particular section of DOMA has been ruled unconstitutional by the Second U.S. Circuit Court of Appeals along with the First U.S. Circuit Court of Appeals.
Because DOMA remains on the books and the Social Security Administration does not recognize same-sex marriages, the question of whether a transgender person is married to their spouse depends solely upon the law of the state where the marriage took place. See 15A C.J.S. Conflict of Laws § 16(3). In SSR 78-11, a transgender man married his wife in New York. The Administration held that “[a]lthough a license was issued and a ceremony was performed in New York, no valid marriage existed under New York law.” The Administration cites to two New York Supreme Court cases from 1971 and 1974 that, essentially, held that a transgender person can never truly be considered their preferred gender or sex. Therefore, even though the couple identify as a married man and woman, the courts in New York did not agree. Therefore, Social Security held that the transgender man was still considered female by the state and held that a marriage did not exist between he and his wife.
Why does that matter? Isn’t that from the 70’s?
Well, the laws haven’t changed much since the 1970’s. Here in Minnesota, the laws are silent as to what constitutes a “man” or a “woman.” It is plausible that the same rationale would apply to Minnesota that was used by the Administration in SSR 78-11 for New York.
There is a case, though, that was recently decided by the United States District Court of Minnesota, which held that a marriage between a man and a transgender woman was legal under Minnesota law. The judge held that an insurance company could not drop the woman from her husband’s health benefits because their marriage was valid.
This case is one possible step towards recognizing the validity of transgender identities and experiences before the Social Security Administration. While it is one huge step to say that the couple is validly married under Minnesota law, the impact of this decision is that it may force the Social Security Administration to recognize the transgender person as their preferred gender or sex.
So…I still don’t know what that has to do with my eligibility for benefits. Stay tuned; Part 2 is forthcoming!
