“As far as I’m concerned, being any gender is a drag.” — Patti Smith
Same-sex marriage has been a hot item for more than a decade. It gained attention in the 1990s with the Defense of Marriage Act, which, when enacted, maintained that marriage was between one man and one woman — in other words, same-sex marriages, which were then beginning to be performed by the states, would not be recognized at the federal level.
But Defense of Marriage Act’s black-and-white distinction overlooks the transgender community. The percentage of transgender Americans varies from 0.25 percent to as high as 5 percent. This less common gender issue is largely ignored in the same-sex marriage debate, and laws surrounding marriage reflect this gap.
In a 2010 Miller-McCune article, Nicky Grist, the executive director of the Alternatives to Marriage Project addressed the importance that America places on marriage and the problem with leaving out even small minorities. “More than other countries, the U.S. uses marital status as the on/off switch for the current of resources and responsibilities flowing between individuals and society. The downside is that too many people are being left out or let off the hook.”
For the transgender community, it doesn’t help that the term "transgender" is sometimes confusing or is used inaccurately. Transgender is essentially a blanket term to refer to cross-dressers, transsexuals, intersex people and others who don’t fit the stereotypical all-male or all-female gender molds. Intersex refers to people who are born with ambiguous genitalia making it difficult to distinguish a clear gender, and other conditions such as androgen insensitivity syndrome — when a person is born with the XY male chromosomal makeup but is resistant to androgen hormones that aid in the development of male physical characteristics. The person looks and acts much more like a stereotypical female despite their male genetics.
These different conditions don’t fit into the gender binary of current marriage law. In many states that define marriage solely as heterosexual, such as California, proof of a person’s new gender after a sex-reassignment surgery is sufficient for them to marry someone that they couldn’t when they were pre-operative. For instance, if a person was born a woman but transitioned into a man, they could marry a woman once the surgery was complete.
Until recently, the opposite was true in Texas, which had stated that a person’s original gender was the only appropriate determining factor, so if a woman transitioned into a man, they were still considered female under the law. This meant that someone who might physically appear to be a man would be allowed to marry another man. Some considered this a loophole that conservative lawmakers didn’t intend.
Lawmakers changed the law in 2009, and Texas became one of the last U.S. states to allow a transgender person to use proof of their sex change to get married. But just in the past year, a transgender woman’s marriage to her deceased husband was considered invalid in Texas because she was born a man. Under the new law, she should have been protected, but Texas politicians are seeking to overturn the decision that allows this type of transgender marriage to occur.
“Gov. Rick Perry’s spokesman Mark Miner said the governor never intended to allow transgendered people to get married.” The Associated Press reported in an article detailing recent efforts in the state to change back to the at-birth gender identification standard. “He said the three-word sex change provision was sneaked through on a larger piece of legislation Perry signed two years ago regarding marriage licensing rules for county and district clerks. Perry, a Republican, supports efforts to ‘clarify the unintended consequences’ of that law.”
Six states and the District of Columbia now recognize same-sex unions. The transgender community, unlike the gay community, has not been characterized by a zealous debate regarding marriage, and transgender people are, for the most part, not mentioned in same-sex marriage legislation.