12/01/2011 03:59 pm ET Updated Jan 31, 2012

Transgender Man Wins Right to a Marital Divorce

As difficult as it can be for lesbian or gay same-sex couples to get married in most states these days -- let alone get divorced when their relationships go awry -- the marriage and divorce obstacles facing transgender men and women are even greater.

Many of these men and women are unable to obtain new birth certificates which describe their gender in a manner that is consistent with how they rightfully present themselves to the public. This in turn can create recurring problems with government officials, as they navigate their legal and personal lives. Compounding the problem, those who live in states that only allow same-sex partners to register as domestic partners or only allow different-sex couples to legally marry, can be harmed by a dissonance between their legal gender and chosen gender -- which can lead to a denial of the right to legally partner or marry the person of their choice.

But as bad as that situation has been for so many, some of the worst insults and legal problems have arisen during divorce. A ruling that was applied in the latest transgender divorce dispute in Texas this year grew out of a dispute involving the deceased spouse of a transgender man. Here's the background: the relatives of a transgender man's deceased spouse claimed that the transgender person couldn't inherit anything under the rules of intestate succession, when his spouse died without signing a will. What was the asserted legal ground? That the marriage was invalid because the spouse wasn't really of the "opposite-sex" when they married. Unfortunately the transgender man lost the case, resulting in the 1999 decision of the Texas Court of Appeals in the Littleton v. Prange dispute.

This was the court decision that created the problem for James Scott.

Scott was born a woman, but he fully transitioned to being a man quite a few years ago. He legally changed his gender and then got married to Rebecca Robertston. When their relationship broke up earlier this year, Scott filed a petition for divorce. In response, Robertson petitioned the Court to declare the couple's marriage void, relying on the 1999 Littleton decision in arguing that theirs was an unlawful same-sex marriage because Scott was born a woman. In other words, Robertson was trying to deprive her husband of any of his property and financial rights as a married person on the grounds that because her husband was born a woman, the marriage was an invalid same-sex marriage.

Scott's lawyer Eric Gormly argued that the Littleton decision is unconstitutional, and is at odds with the overwhelming scientific evidence supporting the position that Scott should be considered a man for all legal purposes. As Gormly explained to the Court, Scott had completed all of the requirements as prescribed by the World Professional Association for Transgender Health, and he had obtained a new birth certificate and passport reflecting his gender change. All of these legal changes had occurred before he married Robertson, and moreover, Robertson was fully aware of Scott's transgender history.

Fortunately, Judge Lori Hockett of Dallas agreed with Gormly's arguments, and on November 21 of this year she threw out Robertson's petition to have the marriage declared void. This is a judge who has done the right thing in the face of prior rulings to the contrary and, most likely, a legal community that might not agree with her conclusion.

Scott and his lawyer Gormly are to be congratulated for taking on this difficult challenge, especially in the face of an adverse prior ruling by the Texas Court of Appeals. We're hoping that Robertson does not file an appeal of this ruling, so that Scott can win his rightful share of the couple's community property assets. Transgender men and women are entitled to rely on the legally issued changes in gender that they have fought so hard to obtain -- and not be at risk for having their legal rights taken away from them years later by an angry ex-spouse or an unreasonable judge.