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Legal AnalysisMarriage Equality

What if I’m Neither: Opposite Does Not Equal Different

By February 4, 2015No Comments

rainbow daisy smWelcome to the second article in our series on “Estate Planning for the T&Q of the LGBTQ Community.” Click here to read the first article.

The role of pronouns and how important that role is to transgender and queer persons is illustrated by the language in marriage equality case law and our statutes, especially when combined with certain adjectives.  Consider Illinois’ first “marriage equality statute,” the Illinois Religious Freedom Protection and Civil Union Act (“Civil Union Act”). Section 5 of the Civil Union Act provides that one of its fundamental purposes is to “provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses.” Section 5 contains no language involving gender or biological markers. However, when reviewing Section 10, Definitions, we see that “‘Civil Union’ means a legal relationship between 2 persons of either the same or opposite sex…” So, according to the Illinois Civil Union Act, persons who entered into civil unions had to be either male or female.

What if one or both of the parties was neither?

Section 5 requires the Civil Union Act to be liberally interpreted. Arguably, the liberal interpretation is to be applied to the parties and actions satisfying the definitions of Section 10. So anyone living in some of Illinois’ more conservative counties who didn’t satisfy the definitions is SOL, right?

Setting aside the question the Civil Union Act left open for transgender and queer couples, the conundrum still emerges when considering the language in U.S. v. Windsor. The last paragraph in Windsor states, “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.” Windsor patently applies to same-sex couples; it is not gender neutral. Therefore, while Windsor was a watershed moment for same-sex couples desiring or intending to marry, it left in the wings, however, transgender and queer couples.

Now, you could say that this is being too technical or that this interpretation of Windsor is too narrow; but au contraire. The grant or denial of benefits or rights in this country often hinges on a single word or definition. Even in friendly states, if a person identifies as neither – because they are in the process of sexual reconstruction or because they simply do not identify as male or female – that person may experience legal difficulties because they are asked to check a box that does not comply with their identity.  If this issue causes problems in friendly states, imagine the results in unfriendly states.
Returning to Illinois statutory law, we see that the language in Illinois’ new marriage equality statute embraces the entire LGBTQ community.

Carefully considering our Marriage Fairness Act’s Section 5 language, we see that the Act’s underlying purpose is to “provide same-sex and different-sex couples and their children equal access to the status, benefits, protections, rights, and responsibilities of civil marriage.” Note that the term “different-sex” replaces the term “opposite-sex” that was in the Civil Union Act. This was not an oversight.  Thus, the Illinois Marriage Fairness Act embraces transgender and queer couples, in addition to lesbian and gay couples. Perhaps our state’s legislators should make a trip to the U.S. Supreme Court.

Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4

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