The trial court in the Thomas Beatie (aka “pregnant man”) case, recently dismissed the divorce action for lack of subject matter jurisdiction. The Court found that there was insufficient evidence to show that the marriage was between a man and a woman and was, therefore, prohibited by Arizona law.
Case Background
Thomas Beatie was born a woman. In 1998 Beatie began hormone therapy. Beatie did not complete that therapy. Beatie also underwent psychological treatment and a double mastectomy (the surgical removal of both breasts).
In 2003, Beatie obtained a new birth certificate from the Hawaii Department of Health. The certificate identified him as a male.
In February of 2003, Beatie and his long-time friend, Nancy, married. Although Hawaii, like Arizona, does not recognize homosexual marriage, Beatie’s new birth certificate allowed the two to marry without any difficulty. Nancy and Thomas had a formal ceremony to commemorate the event.
Nancy had previously undergone a hysterectomy and was therefore unable to bear children. Thomas, however, was still capable. Because the couple wanted to have kids, Thomas was artificially inseminated. When he became pregnant, the media had a brief frenzy over the “pregnant man.”
Ultimately, the couple had three children, moved to Arizona, and then began having problems. In March of 2012, Thomas filed a Petition requesting a legal separation with the court in Maricopa County, Arizona. Nancy filed a request to convert it to a divorce.
While the parties did not dispute the status of their marriage, the Court raised questions about it. The Court’s concern was that under Arizona law, same-sex marriages are not recognized. Thus if the marriage was one between a same-sex couple, then Arizona would have deemed it to have never existed. If it never existed, then the Court would have no jurisdiction to enter a divorce decree.
The parties briefed the issue, and the Transgender Law Center submitted a brief in support of the recognition of the marriage. On March 28, 2012, Judge Gerlach issued his 36-page decision (note that this was solely on the issue of the divorce–there was a separate decision addressing the child issues).
The Court’s Analysis
In a commendably thorough decision, the Court reviewed the factual background of the case and pointed out that Thomas had not completed his hormone treatment and had just obtained a double mastectomy plus some psychological treatment. So in essence, reasoned the Court, all that was really shown was that Beatie removed his breasts.
The problem, from the Court’s perspective, was that simply cutting off one’s breasts still preserves one of the most uniquely female characteristics that exists–the ability to bear children. Thus definitionally, it appeared that Beatie was still a woman.
The Court then looked at what went into the issuance of the Hawaiian birth certificate changing Thomas’s gender to male. The certificate was supported by an affidavit from a plastic surgeon stating simply that Thomas had undergone “surgical procedures.” The evidence indicated to the Court that this was not a customary procedure with respect to how descriptive the affidavits were. Concerned that the failure to disclose the limited nature of the “surgical procedures” was insufficient, the Court declined to recognize the validity of the Hawaiian certificate.
The Court then went on to analyze the existence of the marriage under Arizona’s law. Because Arizona does not expressly define the term “sex change operation,” the Court felt that the changes that Thomas underwent did not constitute an actual sex change. The parties submitted documentation from the World Professional Association for Transgender Health in support of the assertion that Beatie was indeed a man. The Court, however, first pointed out that Arizona law requires interpretation of statutes to be done in the common understanding of normal people, not by way of technical meanings. Further, even if the Association’s criterion were used, the documentation submitted by the parties expressly stated that breast appearance was not a factor to be considered in determining whether or not someone was male or female.
Finally, the Court indicated that it appeared that the Beaties were attempting to seek approval of a social policy that they favored. Such a goal, regardless of whether or not valid on the merits, is more appropriately pursued by changing the laws through the democratic process, not by attempting to get the judiciary (whose role is to interpret the law) to alter what the law says.
The Beaties have appealed the decision to Division One of the Arizona Court of Appeals.