• Marriage in Maine

Cutting the Tying-the-Knot Knot

Anonymous's picture
Written by Anonymous
May 26, 2010 - 10:50am

As far as I have been able to figure out, and I asked a lawyer, in the state of Maine there is no legal definition of "man" or "woman".  Nor is there a single definition in federal law.  You thought gay and lesbian marriage were complicated issues?  Wait until you consider the ramifications of adding trans to the mix.  The result is a terrible tangle, a Gordian knot of possible combinations and complexities.

Let's take for example imaginary couple number one, Tina and George.  Tina was born male but is taking female hormones and lives full time as a woman.  State law specifically says that in Maine, "Same-sex marriage is prohibited.  Persons of the same sex may not contract marriage," but Tina and George want to get married anyway.  Can they?

Maybe, sort of.  I facebook-chatted with Zack Paakkonen, a Portland attorney experienced in trans law, and he says that in order to marry George, Tina would probably be required to show identification at the town or city hall where they were getting married, and if the ID Tina showed still said "M", the above quoted statute would prevent the marriage.  The ID requested would most likely be a birth certificate.

So could Tina get the gender marker changed on her birth certificate?  Yes, but it's hard to do.  Writes Zack, "DHHS has a form. There are certain medical and legal requirements, including a legal name change. You have to have had some surgery. Then, they issue an 'amended' certificate..." 

So suppose Tina gets surgically altered, jumps through the state's other hoops, and gets her birth certificate changed.  She could then in fact marry George...but the newlyweds' troubles would only have just begun.  Her gender change would not necessarily be recognized by the feds for, say, tax or social security purposes; their marriage might be declared void if they move to another state; and if George should die another heir might challenge Tina's rights as a surviving spouse.  When such cases have come up in various state courts across the country, the courts have ruled more often than not that for legal purposes the surviving spouse was her/his birth gender.


Now consider imaginary couple number two, Dorothy and Claire.  Dorothy was born Donald, met and married Claire while he was still legally male, and then underwent as complete a gender-transformation as she could--hormones, surgery, legal name change, amended birth certificate.  Are they still married?

Yes.  Writes Zack, "In Maine, a marriage that is legal when it is entered is valid until it is legally dissolved....Maine, therefore, has same-sex marriage already, where one opposite-sex partner changes sex after marriage to the same sex as the spouse. Not very common, but it happens and demonstrates why the same-sex marriage ban is ludicrous."

Or, to frame it another way:  when trans is part of the equation, there are legally married same-sex couples in Maine who have more rights than legally married opposite-sex couples.  That's just messed up.

You know the story of the Gordian knot...Alexander the Great cut it apart with a big sword.  The only sword I can think of big enough to cut this knot is to let any two people who want to, regardless of gender, wed.

~Lisa Dee Bunker
Lisa blogs about her trans experience at www.genderbendy.com.

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