Sunday, December 22, 2013

Indiana Court Of Appeals: Gender Bending Doesn't Void Marriage In Indiana

What's the status of a marriage entered into between a man and a woman in Indiana after one of the partners to the marriage changes genders? The answer may surprise you. According to an Indiana Court of Appeals' decision picked up on by the Indiana Law Blog this past week, the marriage remains valid and, unlike other same-sex married couples, the two spouses can petition in state court for dissolution of their marriage.

A trial court in Monroe County in In Re The Marriage of Melanie Davis and Angela Summers after originally granting a provisional order concerning the custody of the couple's child later determined that the marriage became void under Indiana law once David Summers ceased being a male and became Melanie Davis after changing the gender on his birth certificate. The Court of Appeals reversed the trial court, finding that there is nothing in Indiana law that permits a legal marriage to be voided after one of the parties to the marriage changes gender, effectively making it a same-sex marriage.

David Summers had been diagnosed with gender disorder after the couple's marriage in 1999 and the birth of their only child. He had his name legally changed to Melanie Davis in Marion Circuit Court in 2005, the same court from which he obtained an order changing the gender on his birth certificate from male to female three years later. The trial court found that the marriage became void when the circuit court ordered the gender change on Davis' birth certificate. A footnote in the Court of Appeals' decision notes that the decision on whether the Marion Circuit Court acted within the law in issuing an order to change the gender on Davis' birth certificate was not before the court in this case. Davis filed for divorce four years after the change in gender on her birth certificate and seven years after her change in name. The trial court, in denying the petition for dissolution petition, found that because the marriage became void once both parties became female, it lacked jurisdiction to dissolve it.

The trial court relied on the second part of Indiana's Defense of Marriage Act, which provides that "a marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized." The Court of Appeals, rejected this reading of the statute, holding that it does not void a marriage that was initially valid in Indiana "simply because one of the parties to the marriage has changed his or her gender."
To conclude that the parties' marriage somehow became void when the gender was changed on Davis' birth certificate would permit David to effectively abandon her own child, even though the parties were validly married at the time of the child's birth and even though Davis is the child's father. It would also leave the parties' child without the protection afforded by Indiana's dissolution statutes with regard to parenting time and child support.
In summary, under the specific facts and circumstances before us in this case, a marriage between a man and a woman that was valid when it was entered into does not automatically become void when one of the parties has his or her birth certificate amended to indicate a change of gender. The statute prohibiting same-sex marriages does not apply to the particular set of circumstances in this case because the parties did not enter into a same-sex marriage in Indiana or into a same-sex marriage that was solemnized in another state. In addition, a marriage such as the one at issue here is not listed among those marriages declared void ab initio under applicable Indiana statutes, and would be improper to interpret the statute otherwise. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.


Anonymous said...

"What's the status of a marriage entered into between a man and a woman in Indiana after one of the partners to the marriage changes genders?"

This is not at all surprising.

One cannot change a gender.

Persons of the same gender can never be married.

Once the concepts behind these exotic lifestyles are properly understood, the conclusions are quite simple.

Gary R. Welsh said...

Actually, through hormone therapy and surgery you can change your gender if you're so inclined. I know someone who is married to a woman who I'm pretty sure has undergone a sex change; I'm just not sure he knows she used to be a he. Maybe we need a law requiring a person who has undergone a change in gender to disclose that fact to prospective spouses.

Jeff Cox said...

Anonymous 10:34, read and learn,

Gender is a role, not a physical attribute. You mean to say they cannot change their sex. Which, as Gary points out, they can.

Second, why do you care? What business is it of yours? Does it affect you? No. So lighten up, Francis.

Gary R. Welsh said...

It is a physical attribute, Jeff. Nature isn't perfect. At least one in one thousand births produces a child born of indeterminate gender. The doctor literally has to ask the parents whether they wish their child to be a boy or a girl. Rather than choose their sex at birth, some physicians now recommend that the parents wait until the child gets a little older to determine with which gender the child identifies before fixing the plumbing surgically to match the gender.

Jeff Cox said...


That's actually indeterminate sex, not indeterminate gender. The confusion is understandable because people often use "gender" and "sex" as synonyms, but they are not.

Gary R. Welsh said...

There's a point at which you must draw the line legally. If I'm a judge, I'm not going to permit a birth certificate to be amended to change the gender or sex of a person, whatever you want to call it, unless there is medical proof that the person has indeed undergone a change from male to female or vice versa. There are people who have a fetish for cross-dressing who are quite different from transgender persons. Acting out cross-dressers don't get to change their gender; only those who physically have their plumbing altered who no there's no turning back. I'm assuming that Judge Rosenberg required that proof in this case, judging by the number of years which lapsed from the initial name change to the date of the amended birth certificate.