Michelle Cass


Sex is an immutable characteristic; says who? As transgendered people and LGBTQQ (lesbian, gay, bisexual, transgender, queer, questioning) issues gain more traction and recognition, the clear contours of sex and gender are fading, and a more fluid concept of gender is emerging. However, the American legal system lags behind the mutability of gender in an environment where the conceptualization and understanding of gender is becoming ever more nuanced and complex. This is most apparent in the law’s treatment of transgendered marriage: a marriage involving at least one person who identifies as transgendered. A transgendered person can be defined as a person who identifies as a gender that is different than the gender assigned based on his or her sex at birth, inclusive of those who have or have not transitioned, had sex-reassignment surgery, executed a name change, or modified the gender marker on his or her legal documents. The law’s rigid response to the complications that transgendered marriage presents in the wake of unlawful same-sex marriage, is to wholly negate the importance of recognizing gender, and instead, to look primarily to a person’s sex for guidance.

This article explores the jurisprudence underpinning lawful and null transgendered marriages from a feminist perspective. Specifically, it describes the history and current state of jurisprudence as it relates to transgendered marriage. This review of the legal landscape identifies the law’s sex-based thresholds for defining gender, which result in the validation or invalidation of a transgendered marriage. Analyzing these thresholds implicates the way in which the law serves to control gender identity and reinforces traditional gender roles in society. This in turn reveals the insidious undercurrent of bias and patriarchy permeating the annals of the justice system as it relates to gender and transgendered identity. Ultimately, this article exposes the woefully inadequate state of jurisprudence today as it relates to transgendered marriage and gender, and posits that this is due in large part to non-lgbptqq identifying, white male dominance.