Texas Trying to Retake Title of “Most Regressive State” from Arizona

Just about every state in the United States, even if it does not allow same-sex marriage, allows transgender individuals who live full-time as the gender with which they identify, and (in some states) undergo gender reassignment surgery to legally change their gender. This allows them to marry people of the opposite gender, whether or not the state authorizes same-sex marriage.

Two years ago, Texas became one of the last states in the country to adopt this rule. However, some Republican lawmakers in that state want to turn back the clock.

That’s right. Some Texas lawmakers actually want to take away a marriage right that has existed in the state, with no apparent consequences, for two years. Many advocates for transgender rights are, understandably, extremely worried. They’re particularly concerned that the bill could be interpreted as nullifying existing marriages in which one or both of the partners are transgender.

If this law is passed, the results could be tragic. The article linked above points out the case of Nikki Araguz. She was born biologically male, but all her life identified as female. She married a man – a volunteer firefighter – before she underwent a sex change operation. As far as both of them were concerned, it was a heterosexual marriage. The law was on their side, too. She underwent her final gender-reassignment operation a few months after they were married. Obviously, her husband knew all of these facts, and was presumably fine with it, or else he would not have married her.

About a year ago, her husband was tragically killed in the line of duty. As his legal wife, Nikki stands to inherit his $600,000 estate. However, her husband’s family is suing, claiming that she cannot inherit under state law of intestacy, because, as far as the law is concerned, she was in a same-sex marriage, which is invalid in Texas. They’re arguing that they’re entitled to inherit under Texas’s intestacy laws.

If this bill passes, we can probably look forward to many more cases like this.

Now, regardless of whether or not you think transgender people should be allowed to get married (though, to be perfectly honest, I can’t see how anyone could be opposed to it), you should still be able to see the major practical drawbacks that come with rolling back a marriage right.

For example, when Proposition 8 passed in California, banning same-sex marriage after it had been legal for several months, a whole new round of litigation began: the California Supreme Court had to decide if same-sex marriages performed before the ban took effect were still valid. It ended up holding that they are. However, this created a great deal of uncertainty in the meantime. And, if the divorce rates for same-sex couples are roughly the same as that of heterosexual couples, we can probably expect, in the coming years, a few thousand (out of the 18,000 whose marriages are still valid) same-sex couples to file for divorce. In California, this probably won’t be a problem, as their marriages are still valid. The process for divorce will be the same as for anyone else.

However, I’ve blogged before about how other states that do not allow same-sex marriage will also not allow same-sex married couples who have moved to such a state to get divorced. This leads to costly and time-consuming disputes over marital property and inheritance. From government finance standpoint, this makes no sense, as it costs the courts (and, by extension, the taxpayers) a great deal of money. And from a broader economic standpoint, these unnecessary disputes consume private resources (money, time, and energy) that could be far better spent on more productive endeavors.

There are plenty of other practical reasons to believe that this is a bad idea. The fact that almost every other state allows marriages between a transgender person, and a person who is legally of the opposite sex will make Texas, the second-most populous state in the country, a major outlier on this issue. Considering the fact that Texas is a major economic center, and that many families relocate there for jobs, this could create problems for married couples in which one or both of the spouses is transgender, if one of them receives a job offer in Texas.

Obviously, if they have major concerns about the validity of their marriage in their new state of residence, they will probably think twice about moving. This might make it difficult for Texas companies to hire the most qualified applicants.

All practicalities aside, I also happen to believe that this bill is just plain wrong. Some people deny the existence of gender dysphoria (identifying more closely as a member of one’s opposite biological sex), despite the fact that most psychologists, years ago, concluded that it is a real thing, and that a person can legitimately identify as a member of the opposite sex, and that living as a member of that sex (possibly including gender reassignment surgery) is the most effective way to deal with the issue. Even if you deny the existence of this condition, the fact that virtually every state in the country has acknowledged its existence, and adjusted its laws accordingly. You have to admit that it would create huge practical problems for a state as large as Texas to roll back the clock.