Sex changes, alimony, and the true meaning of progress

By Jon Monteith

The media often romanticizes the gay community as a decadent subculture to which most of us cannot relate, but it’s a cakewalk in contrast to the sideshow status of transgender people.

Rather than treat transsexuals as ordinary people who simply do not identify with the gender assigned to them at birth, we often feel compelled to focus on the tragic or comedic to help us navigate through the awkwardness. Think “Boys Don’t Cry” – a film dealing with the real-life murder of Brandon Teena, a young transgender man – or the heartwarming quirkiness of Felicity Huffman’s character in “Transamerica.”

It should come as no surprise then that our sluggishness in dealing with gender identity as a serious issue has led to a confused state of affairs in the arenas of law and public policy. One of the latest examples is last week’s ruling by a Florida judge that a woman’s sex change operation does not free her ex-husband from his obligation to pay alimony.

Lawyers for Lawrence Roach, 48, had argued that his 55-year-old ex-wife’s decision to undergo gender reassignment surgery and change her name from Julia to Julio Roberto Silverwolf rendered their 2004 divorce agreement null and void. “It’s illegal for a man to marry a man and it should likewise be illegal for a man to pay alimony to a man,” said John McGuire, one of Roach’s attorneys.

Circuit Judge Jack R. St. Arnold declared that since Florida courts have ruled that sex-change surgery does not legally change a person’s birth gender, Roach technically is not paying alimony to a man. He wrote that the message of appellate courts has been, “You are what you are when you are born.”

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    Is this ruling simultaneously progressive and conservative? Silverwolf’s attorney, Gregory Nevins, argued that the language of the divorce decree is clear and firm: Roach agreed to pay alimony until his ex-wife dies or remarries, and neither of those things has happened. But this was not the basis of Judge St. Arnold’s ruling; his decision appears to be focused on the argument that according to state law, Silverwolf is still a woman.

    In the sense that it acknowledges Silverwolf’s transformation from female to male, the plaintiff’s argument is actually more progressive than the judge’s. But the two are united in their desire to apply Florida’s legal definition of marriage, which currently denies access to gays. They are invoking a conservative law to defend their respective positions.

    At the same time, Roach seems to be implying that Silverwolf’s current status as a man erases his legal standing as Roach’s ex-wife. It doesn’t. By definition, Silverwolf was Roach’s wife until their divorce, and that makes him Roach’s ex-wife upon their legal separation, now and in the future. To argue otherwise is to indicate that something fundamental about their previous marriage is altered by Silverwolf’s gender transformation. This suggestion would be at best inaccurate and most likely transphobic. The judge’s refusal of such a notion and the consequential upholding of Silverwolf’s legal rights as Roach’s former wife are the progressive gems to pluck from this ambiguous ruling.

    The ambiguity itself is cause for genuine concern. As the result of his surgery, Silverwolf is anatomically a male. But using the logic employed in this case, since Florida law does not recognize Silverwolf as a male, he could legally marry another man but not a woman. The same traditionalist philosophy that would lead lawmakers to refuse a legal change in gender is in effect allowing same-sex marriage to occur.

    This is nothing short of bizarre. As Judge St. Arnold explained during his ruling, when it comes to legal questions of gender identity, “There is not a lot out there to help us.” This needs to change. Rather than perpetuating the backwards attitude toward transgender people as abnormal and denying legal legitimacy to a life-changing decision, policy-makers need to exercise serious responsibility. It is time to enact laws that eliminate the clouds of uncertainty and unfairness that currently hang over cases involving gender identity in America.