20 CFR 404.1101
Where two female persons obtained a marriage license and were purportedly ceremonially married in New York, held, no valid marriage can exist in New York between members of the same sex, notwithstanding a subsequent sex change operation by one of the parties and notwithstanding the fact that a marriage license was issued and a ceremony performed.
A question has been raised as to whether the marriage of the wage earner, a transsexual, is valid. The facts indicate that the wage earner, born a female, began hormone treatments and psychiatric counseling in 1967, preparatory to a series of sec change operations. In November 1968, she married another woman in New York City. In November 1969, she underwent the first of several operations to alter her physical appearance. (Information in the files indicates that she underwent a mastectomy and hysterectomy.)
The wage earner was domiciled in Puerto Rico at the time benefits were applied for on behalf of his "wife" and a child born to the latter in April 1969 by means of artificial insemination. Pursuant to section 216(h) of the Social Security Act, Puerto Rican law would be applied to determine whether the wage earner and the applicant were validly married. However, Puerto Rico would follow the law of New York as to the validity of the marriage, because personal capacity to marry is generally determined by the law of the place where the marriage is entered into. See 15A C.J.S. Conflict of Laws § 16(3).
Although a license was issued and a ceremony was performed in New York, no valid marriage existed under New York law. In the case of Anonymous v. Anonymous, 67 Misc. 2d 982, 324 N.Y.S.2d 499, (Sup. Ct. 1971) it was held that no marriage between two males could legally have taken place, even though there was a subsequent sex change operation by one of the parties, and notwithstanding the fact that a marriage ceremony was performed. The court stated: "The law makes no provision for a 'marriage' between persons of the same sex. Marriage is and always has been a contract between a man and a woman." And in B v. B, 78 Misc. 2d 112, 355 N.Y.S. 2d 712, 726 (Sup. Ct. 1974) (a case involving an action to annual a purported marriage between a female and a transsexual, born a female, who had undergone a mastectomy, hysterectomy, and hormone treatments prior to the marriage), the court questioned the validity of the supposed marriage stating that "marriage has always been considered as the union of a man and a woman and we have been presented with no authority t the contrary,"
The wage earner in the present case would still have been considered a female by New York Courts at the time of the marriage, which was prior to any surgery. As further substantiation for this it should be noted that whereas the New York City Health Code allows for issuance of new birth certificates to transsexuals, this is only done after submission of satisfactory proof that the individual has undergone "convertive surgery" as well as after the individual's name has been changed by court order. (Even so, the new certificates omit any reference to sex and merely reflect the change in name. See Anonymous v. Mellon, 398 N.Y.S. 2d 99 (Sup. Ct. 1977), in which it was held that it was proper for the administrative body to take no position on the individual's gender.)
Since the wage earner would have been considered a female at the time of the purported marriage, it is therefore held that a marriage did not exist in this case.
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