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Marriage and the Transgendered Person

By Janice G. Inman
May 31, 2005

Recently, the Associated Press reported the story of a New Hampshire couple with an unusual problem. After being married for a few years, the husband, with his wife's assent, underwent a sex-change operation. The husband, a naturalized U.S. citizen with a foreign birth certificate, is now seeking to have the name on that birth certificate changed from Michael to Mikayla, something the federal government is not necessarily going to allow.

But what does this sex change mean for the couple's marriage, which produced one biological child before the operation? Under New Hampshire law, same-sex couples may not marry, and New Hampshire's Defense of Marriage Act prohibits the state from recognizing even same-sex marriages solemnized outside the state. As a man and a woman at the time of their marriage, they were certainly legally wed, but are they still married under the laws of a state that has outlawed same-sex marriage? Can they choose to remain married? And could they get a divorce if they wanted one?

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