by Eric Resnick
Warren, Ohio--A heterosexual couple who was denied a marriage license because the groom-to-be is transgender had their day in court September 5.
Jacob Nash, 37, and Erin Barr, 30, of Howland asked Trumbull County Probate Judge Thomas A. Swift to grant them the license.
A magistrate had denied the license on August 8 because Nash was born female, and Ohio does not allow transsexuals to change their birth certificates to represent their new sex. Tennessee and Idaho are the only other states with similar laws.
The case is the flip side of same-sex marriages that Ohio has sanctioned because one of the partners was born the opposite sex. It has the potential to broaden the scope of who may obtain a marriage license in Ohio and advance transsexual case law beyond the current "chromosomes equal sex" rule now applied.
The September 5 hearing lasted more than 2½ hours.
Nash and Barr's attorney, Deborah Smith of Macedonia, has signaled to the judge that if he denies the couple a marriage license, she will take the case to federal court.
In anticipation of this, Judge Swift has sought legal counsel from the Trumbull County prosecutor, who represents all county employees, including judges. An assistant prosecutor was present for the entire hearing.
Without a marriage license, the couple had a non-legally-binding commitment ceremony on August 31.
Nash and Barr met in a Christian chat room on the Internet in 1999 while Nash was completing his transition to male. Nash, a Massachusetts native, changed his birth certificate to male according to Massachusetts law. He then moved to Ohio to be with Barr. Once Ohio residency was established, Nash legally changed his name from Pamela to Jacob in Trumbull County.
Magistrate Thomas Norton granted the name change, which was then ordered by Swift.
It was Norton who discovered that Nash was transsexual and later denied the marriage license.
While questioning Norton and Probate Court deputy clerk Lyda Vigorito, Smith established that the court only requires a photo ID such as a driver's license to establish identity for processing marriage license applications.
Because Ohio law allows transsexuals to change the sex marker on their driver's licenses, Nash's identifies him as male.
Through their testimony, Smith also established that if Nash had not completed his name change in Trumbull County, the court would have had no knowledge he is transsexual, and the license probably would have been issued.
Smith told Swift that if he distinguished Nash from all other marriage license applicants by ruling against the couple, it would be enough for a federal suit against him under the equal protection clause of the U.S. Constitution.
If Swift decides not to recognize Nash's amended Massachusetts birth certificate, that would violate the "full faith and credit" clause of the U.S. Constitution, Smith told the judge.
Magistrate Norton, who was forced to testify under subpoena, appeared irritated that he had to do so. His answers to Smith's questions were notably evasive, curt, and often accompanied by sarcasm.
At one point, Norton said the case stood out in his mind because "it was a case of first impression," yet he said he could not remember the conversation he had with Nash when he told Nash he could not issue the marriage license.
Nash later recounted the conversation in great detail, saying Norton told him the "court cannot issue licenses to two females" and "In Ohio, we go by chromosomes, not birth certificates."
Norton testified that he did not know of the Massachusetts law allowing the altering of birth certificates.
By questioning Norton, Smith also established that the court relies on visual appearance of marriage license applicants to determine identity and sex.
Smith asked, "Did [Nash] look male?" "Probably, yes," replied Norton.
"Would you have been shocked to walk into a restroom and see Mr. Nash in there?" asked Smith.
"I don't believe I would have been in the women's restroom," quipped Norton.
Norton then said that Nash's appearance was "irrelevant" because "there is no need to examine appearance to determine sex."
"What proof other than a birth certificate and a drivers license could you have wanted from Mr. Nash to prove he's a man?" asked Smith.
"I don't know," replied Norton.
Smith then presented Norton with a copy of Barr's birth certificate issued by the state of West Virginia. West Virginia birth certificates do not note sex or gender.
"Would this be acceptable to you?" asked Smith.
After long hesitation, Norton answered, "I'm not sure. I'm not sure what is required. Bottom line."
At that point, Judge Swift, seeing the possibility of future federal litigation, told Smith he would not allow questions requiring the witness to speculate, and directed her to change her direction of questioning.
Swift, realizing the full faith and credit issues involved, would also not allow Smith to establish through questioning of Norton that the court recognizes divorce decrees and wills probated in other states.
The issue arose over Nash's previous marriage to a man while he was a woman. That marriage ended in divorce. Nash and Barr had not included Nash's divorce certificate with their original application as required by the court.
Barr testified that she knew Nash was married when he was a woman, but said that submitting the divorce decree "slipped [her] mind" because, she said, "I know of his previous life but I don't think about it, because I now know him as the person he was meant to be."
Barr and Nash amended their original application to reflect Nash's prior marriage. Judge Swift questioned Nash intensely about the earlier marriage.
"Do you remember Lyda asking you if you were previously married?" asked Swift.
"I don't recall," said Nash, "that's why we made the amendment."
Smith objected twice to Swift's asking Nash to detail his surgeries and tell who his surgeons were, saying that the state of Massachusetts had already determined Nash's sex, and it was not within his right to evaluate their determination. Both times, Smith told Nash not to answer the judge's questions.
Smith presented Swift with a copy of the birth certificate of Michael Kantares, a transsexual Florida man whose birth certificate was altered from female to male by the probate court of neighboring Mahoning County. That alteration allowed Kanteres to marry a woman, whom he later divorced and is now involved in a nationally televised child custody dispute over.
A friend of the court brief was filed in opposition to the marriage license by the anti-gay American Family Association of Ohio and Rev. David R. Black, pastor of the Cavalry Presbyterian and Covenant Presbyterian churches of Warren.
The brief was written by anti-gay activist and Ohio "Defense of Marriage Act" author David Langdon.
Langdon requested to argue the case as a friend of the court as though it was an opposed marriage. Swift denied that request.
Swift has given Smith 14 days to file a memorandum with him detailing the Massachusetts law on transsexuals and the changing of birth certificates. He indicated that he would rule on the matter shortly after the memorandum was filed.
Reproduced from transgendernews
Patty (TS) & Cathy (GG):
A few months prior to my SRS surgery Cathy proposed to me. Of course I said Yes.
Next came the task of acquiring a marriage license, finding someone to perform the ceremony, where to hold it, and sending out invitations. The way it turned out getting the marriage license was a bit of a problem and the most time consuming and frustrating aspect.
I went to the County Clerk's office to get the license. I hit my first obstacle. Both party's had to be present to get it. We also had to look over a booklet and sign off that we understand about marriage etc. The following week Cath and I both returned. Again we were refused. This time because both of our driver's licenses showed gender as female. I showed them my birth certificate (male), my legal name change documents, doctor's letters, etc. But they stated that they require driver's licenses with a male and a female gender and all the rest of the documentation meant nothing.
Cathy and I were both upset at their stupidity. She was almost ready to call it off. But I said no. We'll play their game and get it. What I needed to do was to get the gender on my driver's license reversed back to (M)ale. I despised doing this (especially since a policy change meant I couldn't get it changed back to (F)emale until after SRS) but I did it. I went to the DMV to get it changed. There I had to provide all my documents again and explain that I had the gender changed prior to their policy change and that I had not gone through SRS yet and still had male genitalia. At first they were hesitant but they did it.
We went back to the Pasco County Clerk's office to get the marriage license and they still squawked at giving us the license. They needed to research it etc. So we went to the neighboring county's Clerk's Office and they gave us the marriage license and stated that we could sue Pasco County for what they did. Luckily not all counties are bigoted and we found a friendly ear. I didn't like having to fill out my information under the groom but we do what we have to.
The rest was easy. A friend of our's was a Notary Public and she performed the ceremony and her husband took photographs. We had the ceremony at my mother's house in front of the fireplace in the living room. It was a small ceremony with immediate family and a few friends. Everything went wonderfully. Of course Cathy had to smush the wedding cake in my face which made for a few funny pictures. I couldn't see through the frosting so I had to wash my face before I could repay the favor. We were wife and wife, legally married.
Exactly 7 days after the wedding we were both on a plane for Thailand and SRS. That was cutting it close but we managed. As the marriage was totally legal at the time we have a binding female/female marriage. Next week we celebrate our 6 month anniversary and still happy. And that is our story.