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

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.