BY ACLU Attorney Jay Kaplan
A footnote in a recent case decision issued by the Michigan Court of Appeals could be used to deny transgender people appropriate identity documents and recognition for their gender identity and expression. The case is In re Estate of Devon Pearl Burnett v Bobbie Eliza Burnett. Essentially it involves a divorce action brought on behalf of Devon Burnett by her children, who were her legal guardians, against her spouse who she married in 1984. Subsequent to the marriage, Devon's husband transitioned from male to female and underwent sexual reassignment surgery in 2003. One of the issues before the Court was whether the legal validity of the marriage was voided when the husband transitioned to female, as Michigan law and Michigan's constitution prohibits same-sex couples from marrying, resulting in the Court lacking jurisdiction to grant a divorce. The Court panel (consisting of Judges Murray, Markey and Whitbeck) got it right on this issue. The marriage was valid in 1984 and it remains valid regardless if a spouse comes out as transgender and begins living her life in accordance with her gender identity and expression. The Court, however, then decided to address in a footnote, an issue of first impression, that of whether a post-operative transgender woman could be a woman for purposes of Michigan's marriage laws. The Court looked to Random House Webster's Dictionary, 2001 edition to define woman as "a person of the sex who cell nuclei contain X chromosomes and who is normally able to conceive and bear young" or "any organism of the sex of sexual phase that normally produces egg cells." Based on this limited definition of female, the Court determined that a transgender woman is not a woman under Michigan marriage law.
The parties in this case should have had an opportunity to make a factual record, present legal arguments, and to educate the court on legal precedent from other states that have held just the opposite. Unlike the Michigan Court of Appeals panel, these state courts, along with experts in the area of transgender health, understand that a person's sex cannot be narrowly defined solely as an issue of chromosomes. An individual's sex includes many elements, including chromosomal, emotional, anatomical, hormonal as well as reproductive elements.
As the issue of the legal gender of a transgender woman was not before this Court and was not determinative of the case, this footnote is considered dicta and does not have any legal precedential value. In other words, it does not represent Michigan law, nor are other Michigan courts obligated to follow it. However, it should be cause for concern. Dicta in another Michigan Court of Appeals decision (1991)has been used to deny gay couples the right to jointly adopt children.
The case was In re Adams. A man and a woman who were married to other spouses, wished to jointly adopt their adult daughter. The Court denied the adoption, holding that because Michigan's adoption law made it mandatory for married spouses to join an adoption petition, this would result in 4 adoptive parents. The issue of two unmarried persons jointly adopting a child was not before this Court. However, the panel opined that it would be inconsistent with the "general scope" and "purpose" of the adoption statute to permit two unmarried persons to jointly adopt. The Court referenced a case from Lousiana to support this theory. This was dicta- an issue not related to the case before the Court. However, many opponents of second parent adoption, including former Attorney General have used this dicta to support the legal position that since same-sex couples cannot marry in Michigan, they cannot jointly adopt.
We are concerned that opponents of transgender equality will use this footnote to deny transgender people their rights, including obtaining identity documents that accurately reflect their gender identity and expression. The inability to obtain accurate identity documents can result in a host of difficulties and indignities for transgender persons, including the inability to cash and check and complete other financial transactions, problems with law enforcement when documents are incongruent with gender appearance, and the inability to obtain retain employment due to this incongruence. That is why we filed a Motion for Reconsideration with the Michigan Court of Appeals, asking them to remove this footnote from the decision. Unfortunately our Motion was denied without any explanation by this Panel. We continue to believe that this footnote is not controlling in Michigan. We urge any transgender persons who encounter any difficulties as a result of this decision to contact the ACLU of Michigan's LGBT Project. What the Michigan Court of Appeals did was wrong- but it is dicta, a footnote, and we want to make sure that it is treated as such.
