September 2014 – LGBT community and family law

The LGBT community faces numerous challenges when navigating family law. The law is beginning to evolve and many issues lack the guidance offered by legal precedent. Last month, the Arizona Court of Appeals took important steps in recognizing the legal rights of transgendered persons to maintain their gender identity and to exercise the right to obtain a divorce in Arizona courts.

Thomas Beatie made the headlines a few years ago, receiving attention for being the first man to bear a child. Mr. Beatie, born female in Hawaii in 1974 and given the birth name Tracey, grew up identifying his gender as male. In his early twenties, Mr. Beatie underwent physiological treatment to conform to his gender identity. Eventually, Mr. Beatie underwent surgery, altering his anatomy to appear male. Still living in Hawaii, Mr. Beatie eventually changed his legal documents, including his birth certificate, to reflect his gender as male. Later, he married a woman named Nancy.

At the time of the Beatie marriage, much like Arizona’s current laws, Hawaii had a statute that permitted marriage “only between a man and a woman.” Over the next decade, the Beaties went on to have three children, all bore by Mr. Beatie and adopted by Mrs. Beatie, who was unable to bear children herself. Eventually, the couple settled in Arizona. In 2012, Mr. Beatie filed a petition for legal separation, which was later converted to a dissolution action. In June 2012, the family court dismissed the case, finding that it lacked subjected matter jurisdiction. The Beaties filed an appeal.

The Court of Appeals examined whether the State of Arizona allows a marriage, lawfully entered into in another state between two persons the foreign state formally recognized at the time of marriage as male and female, to be dissolved. Arizona has enacted an extension of the federal Full Faith and Credit Clause to marriage entered into in other states, except marriage that is void and prohibited in Arizona. Marriage between persons of the same sex is void and prohibited in Arizona.

The Court of Appeals noted that at the time of marriage, Mr. Beatie possessed state-issued credentials reflecting his male status, and Mrs. Beatie possessed similar credentials reflecting her female status. The Court of Appeals, therefore, found that the marriage was valid by the laws of Hawaii. Consequently, the marriage was also valid in Arizona under the Full Faith and Credit laws. The marriage was not void as a marriage between persons of the same sex because the State of Hawaii had recognized Mr. Beatie as male. The Court of Appeals concluded that the Beaties could therefore obtain a divorce in Arizona.

The Beatie decision is a step towards recognizing legal equality among all people, regardless of gender or sexual orientation.

For more information about complex LGBT issues, especially as it relates to current family law practice, contact Kristi Morley of Owens & Perkins, Attorneys at Law.