“Va. Accidentally Marries Two Men,” headlines a story by Dionne Walker in the AP wire. Two individuals the state of Virginia later classified as male got married in March. When one of them, Justine McCain, went to court to change her legal name to “Penelopsky Aaryonna Goldberry” officials realized that McCain’s legal first name was actually Justin, and that her birth gender was male. I’m using this media anecdote as a teaser into the more dense legal stuff in a chapter I’m working on for my book, The United States of Gender: Regulating Transgender Identities.
Of course, the VA officials and the media had a hard time getting their minds around this, even though a story like this erupts in the mainstream every few months, it seems. But there are a couple of points I want to put a little pressure on for this analysis. First of all, the idea of an “illegal marriage,” a phrase used by the reporter and the marriage commissioner she quotes. A marriage can be invalid, improperly executed, later annulled, but “illegal”? That’s an incoherent concept from a legal point of view. But that something is muddled as a technical concept doesn’t stop it from gaining traction in the popular imagination. (Like “illegal” alien.)
Another point of interest: “A prosecutor says the decision to press charges could turn on whether the pair knowingly misled officials…If the bride was transgender, and identified as a woman, it is unclear whether the marriage would be consider illegal.” So, if it were two individuals legally classified as male and also identified as men themselves, then the prosecutor says charges would be brought. (What charges? “Fraud”? “False personation”? ) But if Justine can be classified as transgender, if she identifies as a woman, then that might not result in the same sort of charges for an “illegal” marriage–perhaps just further civil litigation about determining her legal sex for purposes of marriage in Virginia. So the state’s response depends on what she says about her gender identity. A same-sex marriages draws possible fraud charges; a transgender marriage might be challenged under a different logic, but not fraud. (Of course, I doubt the prosecutor would actually pursue fraud charges, but the initial reaction is what I’m interested in here.)
This is how it goes. I start off wanting to make a simple point about something or other related to the legal regulation of sex, but it’s never simple…bodies of all sorts, unexpected gender identities, different state rules in different jurisdictions.