'Pregnant Man' Can't Get Divorced in Arizona

by Jamie Ross, Courthouse News

PHOENIX (CN) - A transgender man who gave birth to three children while married to a woman cannot get divorced in Arizona because he failed to establish that he was "legally a man" when the couple were married, a Maricopa County judge ruled Friday.

Thomas Beatie, known as "The Pregnant Man" following numerous television appearances, was born female, had a double mastectomy and then obtained a new birth certificate listing his sex as "male."

Miss Tracy Langondino/Thomas Beatie campaigning for gay marriage in Hawaii, 2001.

Beatie and his then-girlfriend, Nancy, used his new legal status to get a marriage license in Hawaii in 2003.

Thomas Beatie was artificially inseminated three times, resulting in the births of their three children. Nancy adopted them shortly after each of their births.

Last March, the couple sought a divorce in Arizona.

However, because the Arizona Constitution does not recognize -- or thus allow -- same-sex marriages or divorces, the Beaties had to show that Thomas was "legally a man" when they were married.

Maricopa County Judge Douglas Gerlach said the couple "failed to show that a double mastectomy, without more, constitutes a 'sex change operation' under Arizona law."

Gerlach noted that a pair of identical twins born could each have a double mastectomy and "wind up belonging to different sexes" if one sister chose to declare herself male and the other did not.

"Thus, by urging that Arizona law equates a double mastectomy with a sex change operation, the parties' contention, if adopted, would lead to circumstances in which a person's sex can become a matter of whim and not a matter of any reasonable, objective standard or policy, which is precisely the kind of absurd result the law abhors," Gerlach wrote.

The Beaties also failed to show that the term "man" in the state constitution includes "people capable of giving birth," or that the Arizona Legislature "has been wrong to recognize repeatedly that, consistent with the commonly accepted meaning of the term, pregnancy is a uniquely female attribute," Gerlach wrote.

The judge added that there was little evidence that Thomas Beatie's sex change was completed before the couple got married in Hawaii.

Thomas underwent testosterone hormone therapy before they got married, but the treatment "ended before it had the intended effect of preventing Thomas from becoming pregnant," and the Beaties did not explain why or when that treatment ended, the ruling states.

"The decision here is not based on the conclusion that this case involves a same-sex marriage merely because one of the parties is a transsexual male, but instead, the decision is compelled by the fact that the parties failed to prove that petitioner was a transsexual male when they were issued their marriage license," Gerlach wrote (emphasis in original).

"Thomas' claimed legal status is based entirely on actions taken by an administrative agency in another state, and, as a matter of law, not to mention common sense, such agencies do not dictate to an Arizona court how the Arizona Constitution should be interpreted," the ruling states.

"To grant their request for a divorce in these circumstances would require the court to usurp its authority and result in a dissolution decree that has no legal effect."

Gerlach added that the couple "effectively seek approval of a desired social policy" in addition to their request for a divorce.

"First, this court's responsibility requires it to apply the standards found in existing Arizona law and not the Beaties' asserted view of what the law should be," Gerlach wrote. "Second, even if the Beaties had established that this court should adopt some evolving or modern-day set of social standards, what they have offered as the set of operative standards rejects their argument, i.e., that Thomas' double mastectomy is a sex change operation."

Read: Full Text of Court Decision