In December, we outlined some of the legal issues surrounding the so-called “Pregnant Man” divorce. Last week, a Maricopa County Superior Court judge ruled against Thomas Beatie, saying that he had failed to prove that his marriage is valid, azcentral.com reports.
Thomas Beatie was born physically female, but began taking male hormones in 1979 and had his birth certificate and driver license changed to reflect his actual sex before marrying his wife, Nancy, in 2003. The couple later learned that Nancy could not have children, so Thomas, who had not undergone sex reassignment surgery, underwent in vitro fertilization and eventually bore three children.
Due to provisions in both the state and federal constitutions, the parties to any case before a judge – whether criminal, civil, family (as here), or otherwise – must first demonstrate that the court is legally authorized to hear the dispute. This legal authorization, known as jurisdiction, is usually a mere formality of which lawyers dispose in one or two lines at the beginning the pleadings. In some cases, however, the court’s jurisdiction is questioned either by one of the parties or by the judge (after all, the judge cannot continue to hear the case if he or she does not have jurisdiction over the controversy).
In the divorce of Thomas Beatie and his wife, Nancy, the judge ordered the parties to prove that their marriage, which took place in Hawaii, was valid as between a man and a woman. Because the Arizona Constitution defines marriage as exclusively between opposite-sex individuals, Judge Gerlach concluded that he would not have jurisdiction to dissolve the marriage if it were not valid from its inception.
Judge Gerlach saw the marriage as “between a female … and a person capable of giving birth, who later did so,” so he denied the couple’s request for a dissolution. Furthermore, Judge Gerlach opined that a double mastectomy is not legally equivalent to sex reassignment surgery and declared that hearing this case would be “precisely the kind of absurd result the law abhors.”
Because same-sex marriage was not legal in Hawaii at the time of the Beaties’ marriage, either, Judge Gerlach’s decision is a bit perplexing. Arizona, like Hawaii, permits an individual to have their birth certificate and driver license gender changed. Courts around the country have struggled with transgender issues because legal precedent is often absent and because contemporary psychology and neuroscience have only scratched the surface of understanding personal identity. An appeal appears likely because the Beatie case is one of first impression for Arizona courts.