Defense Of Marriage Act

[Guest Ryles_D]

The Defense of Marriage Act says that the federal gov't defines marriage as between a man and a woman. It conveniently fails to define "man" or "woman" and doesn't mention if this is "at the time of marriage" or "based on birth" or "based on current legal documents so even if you were a girl at the time you aren't now so sucks to be you". I called up USCIS to ask and got no answer.

This is a bit of a problem because my partner's here on a green card and the government saying "you aren't married" -> deportation.

I really want to get rid of this "F" on my ID and I'm kind of paranoid about being a Zachary with an F, but I'm scared doing so will make the gov't go "GTFO" to my partner. At the same time, I'm hoping that leaving the 'F' on my birth certificate will make them go "Yeah, yeah, gender confused girl... Aren't you supposed to be a lesbian?" and have that be the end of it.

Does anyone have any idea where I can even look to find this out?

[Guest April63]

I believe its the way it is at the time of marriage. So eight now you can be marry a male, but if you get your certificate changed to say you're male, then you will be able to legally marry a female. If you marry a male and have the certificate changed afterward, I don't think you'll have any problems unless someone takes you to court. Then it will be up to the judges.

[Guest NatashaJade]

My wife and I have no plans to divorce. We'll be married until someone tells us we're not. When they try, we'll take them to court and make the fracking Supreme Court tell a legally married couple with children that they must get a divorce. If I have to be the poster girl for this, I will (and my wife will stand proudly next to me...we're political animals).

So let them come and rip the ring off your finger, but they cannot make you sign divorce papers (at least I don't think they can....)

luv

Gin

[Guest Leah1026]

In the USA states are not in the business of breaking up marriages. Unless the marriage was entered into fraudulently the states do not get involved. Marriages are considered a private contract between two individuals and only the partners involved may end it. The marriage is still valid after transition. I know of one such couple right here in my state. There are probably a couple hundred couples across the country. There would be more, but the vast majority of marriages do not survive transition.

However, states HAVE got involved after a death. Read this link for more information on that (the Littleton and Gardiner cases):

http://ai.eecs.umich.edu/people/conway/TS/...tml#anchor19624

This is the main reason marriage equality is so important to us. Once marriage equality passes in your state this problem goes away.

[Guest Joanna Phipps]

My wife and I have no plans to divorce. We'll be married until someone tells us we're not. When they try, we'll take them to court and make the fracking Supreme Court tell a legally married couple with children that they must get a divorce. If I have to be the poster girl for this, I will (and my wife will stand proudly next to me...we're political animals).

So let them come and rip the ring off your finger, but they cannot make you sign divorce papers (at least I don't think they can....)

luv

Gin

Gin you are in the same position my wife and I are in, we were married when I was male and according to everthing I can find it has to do with what you were when you married.

Ok so after surgery, when I am anatomically a woman and can get everthing changed to say that I would have been in breach of DOMA but my marriage is still valid. This is just crazy.....

[Guest Donna Jean]

Leah is right......

For instance.....

My wife and I entered into marriage when I was legally male.....

30 years later I transition to female...and my paperwork is legally female....

Now it is a same-sex marriage!

It has never been contested in the U.S.

And if it ever is, I'll be standing there in front of the Supreme Court with Gin!

Donna Jean

[Guest Ryles_D]

Thanks everyone. I'm just scared because of the immigration thing- if it weren't for that I wouldn't care. We're moving to a state that allows same-sex marriage soon, so if it was only an issue at state level we'd just say "Fine, we'll get remarried as two men, then". We'd do that anyways, we'd both prefer that, but the federal government is involved now. But thanks to the greencard the federal government is involved, and that's what concerns me.

According to http://www.ilw.com/articles/2004,0817-mehta.shtm

The memo indicates that CIS shall not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claim to have changed their sex.

The memo affirms current CIS policy disallowing recognition of a marriage between two persons born of the same sex, where one or both subsequently changed their sex.

Regardless of whether states recognize such marriages, the memo relies on Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1981), in holding that a marriage under immigration law is a matter of Federal, not State or foreign law. To further support the agency’s position, the memo also refers to the 1996 Defense of Marriage Act (DOMA), which bans any federal recognition of same-sex marriages for immigration purposes and defines marriage as an institution involving a “man” and a “woman.” (note: I believe that's referring to a same-sex couple in which neither were trassexual so, quite frankly, it's irrelevant)

Spousal and Fiancé(e) petitions

The CIS shall not recognize a marriage or intended marriage between two individuals where one or both of the parties claim to be transsexuals regardless of whether either individual has undergone sex reassignment surgery, or is in the process of doing so. Thus, the memo prohibits the CIS from approving a Form I-130, Petition for Alien Relative, or Form I-129F, Petition for Alien Fiancé(e), if one or both parties to the petition was born a sex other than what they claim to be at the time of filing. This policy would also prevent other applicants from gaining immigration benefits that is granted based on a marital relationship, such as an individual who claims H-4 status based on a marriage to the beneficiary of an H-1B petition.

So they explicitly say "If you were born a man, no matter what you are now, and marry a man- that's same-sex" but they won't say anything about "If you were born a woman and marry a man as a woman, btu aren't a woman now". Yay delightfully-vague transphobia. *headdesk*

[Guest MissAmy]

Leah is right......

For instance.....

My wife and I entered into marriage when I was legally male.....

30 years later I transition to female...and my paperwork is legally female....

Now it is a same-sex marriage!

It has never been contested in the U.S.

And if it ever is, I'll be standing there in front of the Supreme Court with Gin!

Donna Jean

Yeah I hope nobody ever targets people in that situation.

I hate how homophobic this country is even in the liberal states. Defend marriage? There is no reason why two same sex people can't get married. God did not invent marriage, people did. Marriage has been in practically every culture and society since the dawn of man. Besides straight people don't do such a good job with marriage themselves. High divorce rates, people marrying for money, marrying for green cards, and teens marrying because they got knocked up are just many reasons.

People saying they don't hate gay people but not want them to get married are just lying. My aunt said the the same about my brother and his wife since she is black (in personality she is a nerdy white girl) and he is white. She doesn't just think races shoudn't mix, she hates black people. Might not be a strong hate, but hate nevertheless or she woudn't have a problem with it.

[Guest CharlieRose]

So they explicitly say "If you were born a man, no matter what you are now, and marry a man- that's same-sex" but they won't say anything about "If you were born a woman and marry a man as a woman, btu aren't a woman now". Yay delightfully-vague transphobia. *headdesk*

Wow, really? They actually say that no matter how/if you transition, you'll still be a man/woman if you were born one? It sounds to me like they don't recognize transsexuality at all, so I think you'd be safe.

[Guest MrAwesome]

Move to a place were Gay Marriage is legal?

[Guest Liam]

The Immigration Equality website (www.immigrationequality.org) is really fantastic and might be able to help you answer some of your questions. Here's some info I found:

4.1 Definition of Marriage Is State-Based

Marriage is a family law-based concept and family law is governed by state law, not federal. So, even though immigration law is entirely federal, to determine issues of family law, USCIS looks to the law of the state where the marriage was entered into or, for foreign marriages, to the state where the U.S. spouse resides. The rule that the Board of Immigration Appeals (BIA) has developed is that a marriage will be considered valid for immigration purposes if it is valid in the state where it was entered into unless it violates a strong public policy.[4]

4.4.2.1 DOMA Inapplicable

The BIA first began with a discussion of DOMA. The Nebraska Service Center had denied the petition based on DOMA, finding that because Congress had not explicitly authorized marriages where one spouse is transgender, USCIS had no authority to recognize the marriage.[16]The BIA unequivocally rejected this approach. The board reviewed the legislative history of DOMA and found that nothing in that law was intended to preclude the marriage of a post-operative transsexual to a member of the opposite sex.[17]Instead, the BIA found that the long-honored rule of recognizing a marriage for immigration purposes if it was recognized in the jurisdiction where entered into should govern in cases involving transgender individuals.[18]

4.6.6 Homosexual-Identified Couple But No Surgery

Another factual situation that may arise is that a couple identifies as gay or lesbian, but neither partner has had any surgery. For example, a lesbian-identified couple is comprised of Bette who was born anatomically female and Tina who was born anatomically male but identifies as female. Tina has had no surgery and has taken no steps to change her gender marker on identity documents. For immigration purposes, this couple should be able to marry as an opposite sex couple and succeed with a marriage-based petition.

Their resource "Immigration Law and the Transgender Client," where I pulled those quotes from, is available here: http://www.immigrationequality.org/template3.php?pageid=1135