Transgender woman, husband could be prosecuted

One common riposte to constitutional analogies between bans on same-sex marriage and the anti-miscegenation laws of old is that the latter were far harsher by virtue of being criminal laws. Since bans on same-sex marriage don't make it a crime, the argument goes, they're simply not the same as Loving v. Virginia.

This argument ignores the fact that the criminal sanctions for interracial marriage were focused on one thing: the ability of a couple to pass as members of the same race. The threat of imprisonment served to deter folks who might not be turned away by the clerk simply based on their appearance. If it was later discovered that you had committed "racial fraud," that was when the law descended on you.

And the same turned out to be true with regard to sex. Virginia authorities are currently mulling criminal charges against a newlywed man and woman after it came to light that the bride was a transgender woman - and was regarded by the state as male. This is not the first time criminal sanctions have been threatened for "gender fraud" in marriage.

Virginia law permits a change in birth certificates for trans individuals who have had reassignment surgery (the precise medical standard is not clear). It's not clear from the media coverage whether the woman in this case had not obtained such surgery -- for medical or financial reasons, perhaps -- or whether the authorities believed that gender transition is not recognized for the purpose of marriage regardless of what the law says in other areas. Several state courts have reached that conclusion, e.g., Florida, Texas and Ohio.

As I have argued elsewhere, surgical requirements for legal recognition of gender transition are uninformed, unnecessary and fundamentally unfair. See Against the Surgical Requirement for Change of Legal Sex, 38 Case W. Res. J. Int’l L. 393 (2007).

At any event, this story underscores a number of points. First, it demonstrates that criminal law does come into play as a result of bans on same sex marriage. Second, as noted at Feministing, it serves as a reminder that: "The debate around gay marriage doesn't always factor in the relationship between transgender citizens and the legal apparatus of marriage." Third, it serves as an appalling illustration of the readiness of institutional players from government to media - see the appalling AP story -- to characterize trans people's very existence as fraudulent.