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social sciences

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Transgender Issues in the Law  
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Marriage and Family Law

Marriages in which a partner is transsexual rarely become a legal issue in most states as long as both spouses are living and want to stay married. "Legal problems may arise when one spouse dies and the other attempts to collect survivorship benefits or to claim inheritance or other tax benefits that are restricted to married couples," states Shannon Minter of the National Center for Lesbian Rights. "Alternatively, an employer or health insurance company may challenge the validity of the marriage in the context of trying to exclude the spouse from an employer-provided health plan."

While few state courts have ruled on the validity of marriages where one partner has undergone gender reassignment/confirmation surgery, transgender advocates had long believed that transsexuals effectively changed their legal sex by obtaining a new birth certificate and could then marry in their "true" gender. But two recent judicial decisions have called into question whether transsexuals can ever be legally recognized as a gender different from their biological sex at birth.

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In Littleton v. Prange (1999), a Texas appeals court ruled that gender reassignment/ confirmation surgery and other medical procedures could not change a person's sex, thereby nullifying the six-year marriage of Christie Lee Littleton, a transsexual woman, because she was born male-bodied.

In 2002, In re Estate of Gardiner, the Kansas Supreme Court reached a similar conclusion, invalidating what it considered a same-sex marriage between J'Noel Gardiner and her deceased husband, even though Gardiner had undergone gender reassignment/confirmation surgery years before the marriage.

While the Texas and Kansas courts refused to recognize the new birth certificates of transsexuals, three states--Idaho, Ohio, and Tennessee--deny transsexuals the right to change the sex designation on their birth certificates. As a result, transsexuals who want to get married in these states face a paradoxical legal situation. Same-sex couples can legally marry, if one spouse was born as a different sex, despite the fact that none of the states recognize same-sex marriages. At the same time, a male-female couple in which one partner has had gender reassignment cannot wed. For example, a heterosexual couple in Warren, Ohio, was denied a marriage license in 2003 because the judge knew that one spouse was transsexual.

Transgender people also regularly experience discrimination in family law cases. A number of courts have denied child custody or visitation rights to transsexual or cross-dressing parents or forced them to hide their gender identity in order to have access to their children.

A few judges, however, have recognized that a parent's transgender status, in itself, is not contrary to the best interests of a child. In a groundbreaking decision in 2003, a Florida circuit court judge granted Michael Kantaras, a transsexual man, primary custody of his two children, rejecting his former wife's argument that he was legally female and therefore had no recognizable relationship to the children because the couple was never legally married. An appeals court reversed the judgment, but the two parents subsequently reached a settlement in which Michael Kantaras shares legal custody with the children's mother.

Medical Care

Most private medical plans, many state Medicaid statutes, and federal Medicare explicitly exclude coverage for transsexual surgeries and related treatments, including the cost of hormones, based on the misguided belief that such procedures are cosmetic and therefore unnecessary. Increasingly, though, transgender advocates are successfully challenging the denial of basic health care services to transsexuals by using claim appeal processes and by filing suits against insurers and state Medicaid agencies.

Not only do medical plans often deny coverage for gender reassignment, but many transsexuals are unemployed or underemployed, so do not have insurance in the first place. As a result, a significant number of transsexuals lack access to health care, including proper counseling and medical supervision if they are in the process of transitioning.

Even when transsexuals are able to receive medical treatment, they frequently face discrimination and hostility from health care workers. Consequently, some transsexuals decide to inject silicone or underground hormones, which can contain dangerous and sometimes deadly chemicals, or allow unlicensed individuals to operate on them, often with devastating results.

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