Greetings All,
I received some excellent feedback in the form of a Q&A on the legal implications of my gender/name change in regards to my marriage. The Transgender Law Center did some research on my behalf and provided the following which I have posted below. I hope this is helpful to others.
Q: How does transition affect the validity of a marriage?
A: Marriages remain valid when one partner transitions. In general, a marriage that is valid at the time it is entered into remains valid even after one spouse transitions. This is because under the laws of most states, there are only two ways to terminate a marriage: death or divorce. Generally, since transition is neither of these things it cannot terminate a marriage.
In 2015 the U.S. Supreme Court ruled in Obergefell v. Hodges that laws restricting marriage to different-sex couples is unconstitutional. Therefore, gender should no longer be relevant in determining validity of marriages.
Occasionally it may be necessary to defend the validity of a marriage that took place before 2015. In 2013 there were two cases that examined the validity of marriages where one spouse had transitioned. Both concluded that marriages that were valid when they were entered into were still valid even when same-sex marriages were not recognized at the time in those states. (See, In Re Burnett Estate, 300 Mich. App. 489, 834 N.W.2d 93 (2013); In Re Marriage of Davis and Summers, 1 N.E.3d 184 (Ind. Ct. App. 2013).)
There have been divorces where one spouse challenged the validity of the marriage after the other spouse transitioned. In many states the legal principle of estopple prevents people from making this argument. The concept of estopple is that once a person has taken one position that another party relies on, they cannot change their position to the detriment of the other party. When one spouse publicly acknowledges a marriage, though they can pursue a divorce, they cannot later say the marriage was never valid. Source: ACLU Guide, Protecting the Rights of Transgender Parents And Their Children, citing Swift v. Swift, 29 N.W.2d 535, 540 (Iowa 1948); In re Marriage of Recknor, 138 Cal.App.3d 539, 546, (Cal. Ct. App. 1982).
In every state, when two people have obtained a marriage license and participated in a ceremonial marriage, the marriage is presumed to be valid in the absence of a law expressly barring the marriage. (See, Validity of Marriage 36 AM. Jur. Proof of Facts 26 441.)
Q: Does changing my name affect my marriage?
A: No. However, depending on what state you live in, there may be different requirements for your court ordered name change if you happened to change your name when you got married.
If you have already changed your name (due to marriage or any other reason) prior to transitioning, you should strongly consider listing your previous name as an FKA or "Formerly Known As" in your name change petition whenever the form asks for your current legal name. This is especially relevant if you would like to update your birth certificate and it lists your previous legal name. You may also want to list an FKA if you have ever used other names for official purposes and want to update all of you information to match your new name—for example, if you used a different name earlier in your transition, and that name is on a lease.
Vital records agencies in many states, such as California, are very particular about the way names are listed on court orders and will not update a birth certificate unless the name on the birth certificate is mirrored exactly in the previous name on a court order.
If you have already obtained a court order where your former name does not match the name on your birth certificate (for instance, if you obtained a court order changing your name from "OldFirstName MarriedLastName" to "NewFirstName MarriedLastName"), you will need to either amend your court order OR have the court order set aside and obtain a new court order with the correct information.
Many trans people who have changed their names due to marriage want their birth certificates to reflect their pre-marriage last names. Unfortunately, in some states, such as CA, Vital Records offices are quite particular about only issuing amended birth certificates so that the new name on the birth certificate matches the new name on the court order. Therefore, it is best to check your vital records office prior to making your name change.
Q: Do transgender people have the right to marry in every state?
A: Yes.Transgender people have the right to get married. Further, in 2015 the U.S. Supreme Court ruled in Obergefell v. Hodges that laws restricting marriage to different-sex couples is unconstitutional. As such, gender should no longer be relevant in determining validity of marriages, all valid marriages must be fully respected by each state. This is true even if a couple moves to a state with anti-transgender laws. States have different requirements for entering into a legal marriage. These generally include a marriage license, and both parties being at least 18 years old or having parental consent.
Q: If Obergefell is overturned, will my same-sex marriage be voided?
If Obergefell is overturned, rights will be based on the state you live in and determined by whether your state has laws establishing the right to same-sex marriage. This article by the American Prospect titled "What Happens If the Trumpified Supremes Overturn Roe and Obergefell" has a great chart listing the states that do and do not have any laws, currently there are 11 states that do not have laws legalizing same-sex marriage and therefore same-sex marriage would be illegal in those states. Luckily, your state, Washington State, legalized same-sex marriage in 2012, so would be valid even if Obergefell was overturned.
From reporting by New York Times, it is likely that conservatives would welcome the chance to challenge the ruling, but it could take years for a case to reach the Supreme Court.
Hope this is useful!
-A
