The treatment of transsexuals under marital law has been conflicting. Though legislatures in many jurisdictions have limited marriage to one man and one woman, "man" and "woman" have not been adequately defined. Courts have employed a variety of tests in determining which gender to assign transsexuals, ranging from a hard-line rule of what sex the transsexual was born with, to multi-factored tests based on scientific definitions of gender. This conflict among the courts reflects a broader "rules vs. standards" debate in the law, the former providing clarity in the resolution of disputes, and the latter allowing for flexibility by the decisionmaker in adjudicating individual claims. This Note first explores the science of Gender Identity Disorder. It then attempts to articulate the tests developed to define sex in prior cases, noting examples of both hard-line "chromosome-determinative" rules and more multi-factored standards liberalizing legal gender concepts. Utilizing the "rules vs. standards" debate, this Note then proposes a hybrid approach to gender assignment, allowing for a multi-factored standard in evaluating a person's sex, but with the rule that as a rebuttable presumption the person's legal sex is that of his or her reassigned sex after 50% completion of sexual reassignment procedures.
Briana Lynn Morgan,
The Use of Rules and Standards to Define a Transsexual's Sex for the Pupose of Marriage: An Argument for a Hybrid Approach,
55 Hastings L.J. 1329
Available at: https://repository.uchastings.edu/hastings_law_journal/vol55/iss5/5