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Arizona court: Transgender man can keep pursing divorce, rules marriage wasn't same-sex union

PHOENIX - A transgender man in Arizona who gave birth to three children after beginning to change from female to male can continue to pursue a divorce, a state appeals court said Wednesday in reversing a judge who refused to end the marriage.

A three-judge panel of the Arizona Court of Appeals ruled that Thomas Beatie's marriage to Nancy Beatie in Hawaii in 2003 is considered valid in Arizona and concluded it wasn't a same-sex union.

Last year, a lower court judge denied the divorce request and ruled that Arizona's ban on same-sex marriages prevented the marriage from being recognized as valid.

Beatie began to change sex before the marriage but retained female reproductive organs and became pregnant three times with donated sperm when Nancy Beatie was unable to have children. The couple eventually moved to Arizona and sought a divorce a few years later.

Thomas Beatie was born a woman in Hawaii and as an adult underwent a double-mastectomy and chest reconstruction surgeries, and began testosterone hormone therapy and psychological treatment to become a man.

Sixteen months ago, Maricopa County Family Court Judge Douglas Gerlach concluded the marriage appeared to be a same-sex union because it was between a woman and a person who was capable of giving birth.

The family court judge also found he had no jurisdiction to handle the divorce request because there was insufficient evidence that Beatie was a man when he got married, even though he had his Hawaii driver's license and birth certificate changed to say he was a man.

The Arizona appeals court ruled that Beatie's marriage in Hawaii was valid and noted that he didn't withhold his transgender status from officials in Hawaii.

The panel said it was obligated to let people who get their birth certificates changed to reflect a new gender status the rights connected to their amended status — and doing otherwise would run afoul of equal-protection rights protections.

"It's a precedent-setting case that will protect a lot of families," said Shannon Minter, legal director for the National Center for Lesbian Rights.

Minter, an expert in family law involving gay, lesbian and transgender people, said the last time an appeals court made a ruling in a divorce case involving a transgender person was in the late 1970s in New Jersey — and the court in that case found the validity of the marriage in question.

Both sides in the Beatie case were pressing the courts to allow a divorce and made similar arguments.

"I am somewhat surprised that it did get reversed, because your chances are very minimal on getting things reversed," said David Higgins, an attorney for Nancy Beatie.

The office of lawyer David Michael Cantor, who represents Thomas Beatie, had no immediate comment on the ruling.

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