Transsexuality, Marriage, and the Myth of True Sex

The question of how to analyze the marriage of a transsexual person has been difficult for courts: if a person could be considered either male or female, who may that person marry? Most American jurisprudence follows *Corbett v. Corbett*, an English case from 1970, which held that a transsexual person’s “true sex” is set at birth for purposes of marriage. However, as medical science and social norms advance, the “true sex” model has become increasingly difficult to justify. Analysis of transsexual marriage cases provides a lens through which to view the policies behind disallowing same-sex marriage. These policies ensure that: (1) homosexual sex does not occur within a marriage; (2) the couple’s legal documents do not reflect the same sex; (3) the couple’s biological characteristics, such as internal reproductive organs or chromosomes, do not reflect the same sex; or (4) the marriage has the appearance of being between people of opposite sex. This Note shows that application of the “true sex” model is flawed and blind adherence to a male/female dichotomy leads to absurd results. In order to avoid such results in the context of marriage, the most sensible solution would be to allow individuals to marry any otherwise qualified individual, regardless of the parties’ sex.

Note | View PDF | Appears in Volume 53, Issue 1

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