Transcending Gender: How the Absence of a Consistent Legal Definition of Gender Creates a Legal Limbo for Transgendered Individuals in the Context of Marriage

Shawn C. Ellison

Abstract

In cases in which the validity of a marriage is in dispute, will courts accept the new gender of a post-operative transsexual? Does a person’s sense of sexual identity have any legal bearing on his or her legal gender? Courts have split on these questions. Many courts seek guidance from a 1970 English case, Corbett v. Corbett, in which the court, relying on its own three-prong congruency standard, ruled against the transsexual. This paper examines Corbett and its legacy. The paper also addresses the issue of how such rulings affect people with physical intersex conditions.