Navigating Legal Marriages for Transgender Individuals Before Obergefell: A States' Rights Analysis

Before the landmark Supreme Court decision in Obergefell v. Hodges, the legal landscape for transgender individuals seeking marriage in the United States was far from uniform. This article explores the complexities that arose, especially for MTf transwomen (male-to-female transgender women), when attempting to marry a woman in states that banned same-sex marriage. Since there was no national consensus, the rules varied widely from state to state.

State-Specific Legal Marital Designations

Before Obergefell v. Hodges, the legal designations on birth certificates and other legal documents often dictated whether a transgender individual could legally marry someone of the opposite gender. In some states, the original birth certificate designations were paramount, meaning that an MTf transwoman could legally marry a cisgender woman but not a cisgender man or another transwoman. This created a gender binary that excluded many transgender and cisgender individuals from legally accessing marriage.

In other states, the legal gender markers registered on marriage licenses prevailed. If a transperson had completed the state's requirements to correct their legal documents, they could marry as their current gender. For example, an individual who had transitioned could legally marry a woman if they had changed their gender markers to female.

Lack of Legal Guidance in Some States

In some states, there was a complete lack of case law or legal guidance regarding marriage for transgender individuals. The interpretation fell to the discretion of local registrars, leading to inconsistent results. In such cases, the decision of whether a marriage was valid could vary based on the registrars' individual perceptions and interpretations of the law.

Pre-Transition Marriages and Legal Challenges

A unique challenge arose for those who had entered into marriages before transitioning and found themselves in a situation where they would be unable to marry their spouse if the marriage were to occur now. If a trans person had a marriage under their original assigned sex and transitioned, the legality of that marriage could be called into question.

In some states, existing marriages of this nature were deemed void. If, for example, an individual had married someone of the opposite assigned sex before transitioning and then transitioned to the same gender as their spouse, the marriage could be annulled without their consent. Such rulings left the individuals with no choice but to separate, even if they wished to remain together.

In contrast, in my home state of Illinois, gender transition made a marriage "voidable" rather than void. If my spouse and I decided we no longer wished to be married, we would be eligible to dissolve the marriage through a voiding process rather than a divorce. This legal framework offered a more flexible and consensual path to ending a marriage.

Conclusion and Legacy of Obergefell v. Hodges

The Obergefell v. Hodges decision marked a significant shift towards recognizing the full rights of same-sex couples, including transgender individuals. While the landscape for marriage rights has improved, the legacy of this legal differentiation offers insight into the challenges faced by transgender individuals in navigating the legal system during a period when uniform standards were lacking.

For those seeking to understand and advocate for more equitable legal practices, the variations in state regulations before Obergefell v. Hodges provide a valuable context. It is crucial to continue striving for a more inclusive legal framework that respects the diverse identities and life choices of all citizens.