The Brunners redefine same sex marriage, because when they originally got married they were man and wife. Now they are wife and wife.
THERE are ways in which the Brunners are like many other middle-aged married couples. Former high school and college sweethearts, they finish each other’s sentences and order the same food at restaurants. They shuttle their three children to sports practices, and laugh when their 90-pound Labrador retriever jumps onto the sofa to lick guests.
"We’re one of the few of our friends who are still in our original marriage,” Denise Brunner said.
But it is not exactly the same union, as evidenced by their marriage certificate, which they have enlarged to poster size to make the point. The original, from 1980, listed Donald Brunner as the bridegroom and Frances Gottschalk as the bride. But a sex-change operation in 2005 turned Donald into Denise. Fran stood by her spouse, and the couple secured an amended certificate, putting “Denise” next to “bridegroom” for lack of other options.
Massachusetts is the only state to have legalized same-sex marriage, and the Brunners are two women married to each other in New Jersey. As this state (along with Connecticut, Vermont and New Hampshire) confronts challenges over whether its civil unions fulfill the mandate of providing same-sex couples equal rights and benefits, the Brunners offer themselves as Exhibit A on how the nation’s dizzying patchwork of marriage laws, which include the domestic partnerships of California and other states, may be out of step with people’s lives.
The Brunners say they have no interest in obtaining a civil union — they consider it a downgrading of their relationship — but they do worry about their status.
What if the Internal Revenue Service questions their joint tax returns? What if they retire to North Carolina, a state that they say is less legally friendly to transsexuals and same-sex couples? What if they were taking their daughter Jessica to college in Pennsylvania, and were in a car wreck that left Denise unconscious — would the authorities accept Fran as her wife?
“Are they going to recognize that she can make the decision for me?” Denise asked. “We don’t know that, and that’s not the time I want to contest that in court.”
No one tracks the number of transgender people in the country, let alone the number who stay married after a sex change, said Mara Keisling, the executive director of the National Center for Transgender Equality in Washington.
Julie A. Greenberg, a professor at the Thomas Jefferson School of Law in San Diego, said marriages like that of the Brunners are rarely challenged by government agencies because more conservative states do not recognize sex changes, and more liberal ones (like New Jersey) are loath to seem hostile to transsexuals.
The Brunners were already married when Donald became Denise. Transsexuals who marry after surgery pose a different set of questions, and there have been a number of custody, probate and other cases with decisions all over the legal map.
Urging the United States Supreme Court to tackle the issue in 2000, lawyers for Christie Lee Littleton, a Texas male-to-female transsexual suing her husband’s doctors for wrongful death, noted the confused landscape: “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.
The Supreme Court declined to take the case.
The New Jersey reference stems from a 1976 case in which an appellate court ruled that a man needed to pay support to his ex-wife, who was born male, essentially saying that sex is determined by current status, not DNA. But a 2004 Florida case took the opposite tack: a female-to-male transsexual who married a woman and then divorced lost custody of the children, as the marriage was declared invalid since both were born the same sex.
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