Husband’s Change of Gender does not Void Marriage

Case: In Re the Marriage of Melanie Davis and Angela Summers
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Husband’s change of gender to a woman during the parties’ marriage did not render the marriage void under Indiana’s statutory prohibition of same-sex marriage.

FACTS AND PROCEDURAL HISTORY:
In 1999, Davis, then a man, and Summers, a woman, married in Indiana. During the marriage, Davis was diagnosed with “gender dysphoria,” which, according to the DSM-5, is a disorder of “people whose gender at birth is contrary to the one they identify with.”

In 2005, Davis filed a petition in the Marion Circuit Court to change his name to “Melanie Lauren Artemisia Davis.” He also requested that the gender on his birth certificate be changed from a man to a woman. The Court eventually issued orders granting both of Davis’ requests.

The parties later separated and, in 2012, Davis filed a petition for dissolution of marriage in Monroe Circuit Court. Five months later, while the divorce matter was pending, the trial court, acting sua sponte, issued an order dismissing the dissolution, stating that the parties’ marriage had become void on October 21, 2008, the date that the Marion Circuit Court issued its order that Davis’ birth certificate be changed from male to female. Davis appealed.

The Court of Appeals reviewed Indiana Code § 31-11-1-1, which provides:

(a)   Only a female may marry a male. Only a male may marry a female.

(b)   A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.

The Court first determined that Davis and Summers complied with subsection (a), since, at the time they married, Davis was a male and Summers was a female.

The trial court concluded that it was subpart (b) that operated to void the parties’ marriage. While noting that the trial court’s analysis of subpart (b) was not entirely unreasonable, the Court of Appeals concluded that the trial court focused too narrowly on the first half of subpart (b): “A marriage between persons of the same gender is void in Indiana…”  But, when the sentence is construed in its entirety, and in the context of other Indiana statutes dealing with void marriages, the better interpretation of subpart (b) is that it serves only to void same-sex marriages that were solemnized in other states where same-sex marriage is legal.  “Simply said, there is nothing in the Indiana Code chapter dealing with void marriages that declares that a marriage that was valid when it was entered into becomes void when one of the parties to that marriage has since changed his or her gender.”

The trial court’s dismissal was reversed and remanded.

[Editor’s note: This opinion would appear to leave open the hypothetical possibility that, under current Indiana law, a same-sex couple could achieve a legal marriage in Indiana if one of the parties is willing and able to acquire the same type of birth certificate change that Davis acquired, and then marry. However, in a footnote of this case, the Court of Appeals issued a cautionary note: “The question of whether or not the [Marion Circuit Court] properly amended Davis’s birth certificate to show a change of gender is not before us.”]

To view the text of this opinion in its entirety, click here: In Re the Marriage of Melanie Davis and Angela Summers

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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