A married couple with a transgender man has created confusion for Arizona courts and national publicity for the LGBT movement.
Tracy Lehuanani Lagondino was born a woman in Hawaii. In 1997, Tracy began consultations with doctors, psychologists, and started testosterone therapy. Through it all, she persisted in the desire to become a man. In 2002, Tracy underwent the first of several surgeries. Within 6 months, her Hawaii birth certificate and driver’s license were changed, pursuant to Hawaii law, to indicate that Tracy was a man. Tracy became Thomas Beatie.
Thomas married Nancy Beatie in 2003. Nancy was unable to bear children, but Thomas still could. Using cryogenic-donated semen, Thomas had three children and became the first legally pregnant man in history. The pregnancies captured national media attention and Thomas appeared on Oprah, Larry King, Barbara Walters, and the David Letterman Show, amongst others.
The couple moved from Hawaii to Arizona. Eventually the relationship fell apart, and the two filed for divorce in Maricopa County, Arizona. Throughout the course of those proceedings, the Court entered an order (available here) requesting that the parties convince the Court that it had jurisdiction to enter a divorce decree. The Court’s concern was that under Arizona law, a marriage between two members of the same sex is prohibited. This is true both by statute (A.R.S. 25-101(C)) and under Arizona’s constitution (Ariz. Const. art. 30, sec. 1). The Court explained that it wasn’t really clear on what legally made someone a man or a woman, and went on to cite definitions from dictionaries that indicated women are those who can bear children. So, if the marriage was between a woman and a woman, the marriage simply doesn’t exist under Arizona’s law and the Court has no jurisdiction to enter a divorce decree.
The Transgender Law Center intervened in the action, submitting an amicus brief (available here), a document from a party outside the case that informs the Court of its position on the law. Interestingly, an amicus brief isn’t typically filed with trial courts, it’s filed with appellate courts. Still, there seems to be no law prohibiting it. The brief argued that the marriage should be recognized, in part, because Arizona statutorily allows the recognition of Hawaii law, which authorized Thomas’s legal transition from woman to man. Arizona also allows a person who has undergone a sex change to have his or her birth certificate amended to reflect that change (A.R.S. 36-337(A)(3)).
Still there is an unresolved question about the underlying definition of what legally constitutes a man or woman because if Arizona’s Constitution is deemed by the Court to operate under a definition that conflicts with the statutes, the Constitution would prevail. Further the statutes don’t directly define what a woman is, they simply say that a birth certificate can be amended if someone got a sex change.
The trial court is expected to issue a decision on this matter sometime in February of 2013. If the Court decides that it doesn’t have jurisdiction to enter the divorce decree, then it will almost certainly be appealed. At that point, the appellate courts will have to decide the issue.
Nancy told the press, “the bottom line is we’re husband and wife, and we want to get a divorce.”