In re Beatie v. Beatie
| Decision Date | 13 August 2014 |
| Docket Number | No. 1 CA–CV 13–0209.,1 CA–CV 13–0209. |
| Citation | 333 P.3d 754,235 Ariz. 427,693 Ariz. Adv. Rep. 25 |
| Parties | In re the Matter of Thomas T. BEATIE, Petitioner/Appellant, v. Nancy J. BEATIE, Respondent/Appellee. Thomas T. Beatie, Petitioner/Appellee, v. Nancy J. Beatie, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Cantor Law Group P.L.L.C., By David M. Cantor, Allyson Del Vecchio, Phoenix, Counsel for Petitioner/Appellant–Appellee.
Law Office of David B. Higgins P.L.L.C., By David B. Higgins, Phoenix, Counsel for Respondent/Appellee–Appellant.
Campbell Law Group, Chartered, By Claudia D. Work, Phoenix, Counsel for Amicus Curiae Transgender Law Center.
OPINION
¶ 1 Thomas and Nancy Beatie (Thomas and Nancy, respectively) appeal the family court's dismissal of their request for entry of a decree of dissolution of their marriage.1 Thomas was born a female who underwent medical procedures toward changing his sex, and subsequently obtained an amended birth certificate from the State of Hawaii recognizing him as a male. Thomas and Nancy then obtained a marriage license in Hawaii, and were married in that state. At that time, Hawaii only recognized marriages entered into between one man and one woman.
¶ 2 After relocating to Arizona, the Beaties petitioned for the dissolution of their marriage. However, the family court determined it lacked subject matter jurisdiction to act upon the Beaties' request for a divorce, concluding the Beaties had entered into a same-sex marriage between two females, despite Thomas having obtained an amended birth certificate from the State of Hawaii indicating his sex to be male, because he had retained the ability to bear children, and in fact gave birth to three children following his marriage to Nancy. Based upon the record and Arizona Revised Statutes (A.R.S.) sections 25–101 and 36–337(A)(3),2 we reverse the family court's dismissal of the Beaties' petition to enter the decree of dissolution and remand for proceedings consistent with this opinion.
¶ 3 Thomas was born in 1974, on the island of Oahu, Hawaii, and given the birth name, Tracy Lehuanani Lagondino. Early on, and continuing through his teenage years, Thomas believed his gender identity to be male. After numerous discussions with his doctor, a general practitioner, Thomas began a testosterone hormone therapy regimen and discussed surgically altering his gender. From 1997 to 1999, Thomas underwent testing to determine his true gender, and when those tests indicated his true gender to be male, Thomas engaged in extensive hormonal and psychological treatment to conform to his gender identity.
¶ 4 Based upon the recommendation of his general practitioner, Thomas met with Dr. Michael Brownstein,3 a physician licensed in California, who specialized in transgender-related surgeries.4 In 2002, Thomas underwent surgery, performed by Dr. Brownstein, to create a male-contoured and male-appearing chest, and which irreversibly altered Thomas's anatomy and appearance for the purpose of his gender change from female to male.
¶ 5 With that, Dr. Brownstein completed an affidavit for Thomas, averring:
Psychological and medical testing ... determine[d] this patient's true gender ... to be male. [Thomas] has undergone extensive hormonal and psychological treatment and has ... undergone surgical procedures performed by me to irreversibly correct his anatomy and appearance. This should qualify [Thomas] to be legally considered male within the guidelines of the particular jurisdiction in which this individual seeks to legally change his gender status.
¶ 6 Shortly thereafter, using the affidavit, Thomas began the process of changing his legal documents. In June 2002, Thomas changed the legal gender status reflected upon his Hawaii driver's license from female to male and, in January 2003, amended the name on his Hawaii driver's license from Tracy to Thomas. By January 2003, Thomas also lodged a Notice of Change of Name with the Office of the Lieutenant General for the State of Hawaii and amended his birth certificate to reflect his name as Thomas and his gender as male.
¶ 7 Thomas and Nancy were married in Hawaii on February 5, 2003. At that time, the laws of the State of Hawaii allowed marriages “only between a man and a woman.” Haw.Rev.Stat. (H.R.S.) § 572–1 (1997), amended by Hawaii Marriage Equality Act of 2013, § 3 (2nd Spec. Sess. Act 1). When Thomas and Nancy applied for their marriage license, the State of Hawaii required the applicants to appear in person before a marriage license agent and provide proof of age in the form of a birth certificate, valid I.D. or driver's license.5 Thomas stated within an affidavit that he presented the required photo identification, and that the identification he provided reflected his gender as male. The Hawaii State Registrar accepted the application and issued the Beaties a marriage certificate on February 6, 2003.
¶ 8 As Nancy was unable to have children, the couple ultimately agreed Thomas would be the child-bearer as his genital surgery was not yet completed. Thomas eventually gave birth to three children in Oregon between 2008 and 2010. As regards Thomas's continued ability to bear children, Dr. Brownstein testified child-bearing by a transgendered male does not revoke his transgendered status. Nancy legally adopted the children, and the children's birth certificates reflect Nancy as their mother and Thomas as their father. In or around 2010, the Beaties relocated from Oregon to Arizona with their children and resided in Arizona as husband and wife, even filing joint Arizona tax returns.
¶ 9 On March 8, 2012, Thomas filed a petition for legal separation of a non-covenant marriage with children. Following an unopposed motion from Nancy, the legal separation action was converted to an action for dissolution of their marriage.
¶ 10 On June 27, 2012, the family court, prompted by its duty to independently determine whether it had subject matter jurisdiction to enter a decree of dissolution, issued an order requesting the Beaties to identify controlling and applicable legal authority establishing the validity of their marriage. The family court explained its request by noting Thomas was the biological birth mother of the three children, which meant Thomas and Nancy's marriage was between “a female [Nancy] and a person capable of giving birth, who later did so [Thomas].” The family court also stated it had been unable to locate any authority defining a “man (or male) in terms that contemplate that person's ability to give birth to children,” and questionedwhether the marriage between Thomas and Nancy was a same-sex marriage.
¶ 11 After briefing and oral argument, the family court found it did not have subject matter jurisdiction as the Beaties had failed to show: (1) a double mastectomy, without more, constitutes a “sex change operation” under Arizona law; and (2) the word “man” in the Arizona Constitution carries a meaning any different from its plain, ordinary meaning, which excludes people capable of giving birth. It supported the latter point by noting the Arizona legislature has repeatedly recognized pregnancy as a uniquely female attribute.
¶ 12 In addition, the family court questioned the sufficiency of Dr. Brownstein's affidavit submitted by Thomas to the Hawaii Department of Health in order to obtain his new birth certificate. The court noted that the affidavit, unlike the “typical” affidavit issued by Dr. Brownstein, indicated only that Dr. Brownstein performed “surgical procedures” for Thomas, and further, that Thomas never disclosed to Hawaii officials that he retained the ability to become pregnant. As the family court had indicated at the time it directed the additional pleading, the court further found the marriage between Thomas and Nancy appeared to be a same-sex marriage, as the marriage was between a female (Nancy) “and a person born a female (Thomas), who at the time of the wedding was capable of giving birth and later did so.” 6 As the Arizona Constitution does not recognize same-sex marriage,7 the family court dismissed the Beaties' petition for dissolution of marriage for lack of subject matter jurisdiction.8
¶ 13 Nancy and Thomas timely appealed. We have jurisdiction pursuant to A.R.S. § 12–2101(A)(1).
¶ 14 Subject matter jurisdiction is a question of law, which we review de novo. In re Marriage of Crawford, 180 Ariz. 324, 326, 884 P.2d 210, 212 (App.1994). We also review de novo constitutional issues and matters involving statutory interpretation. McGovern v. McGovern, 201 Ariz. 172, 175, ¶ 6, 33 P.3d 506, 509 (App.2001).
¶ 15 The question before this Court is not whether the State of Arizona allows same-sex marriage or divorce, but whether the laws of the State of Arizona allow a marriage, lawfully entered into in another state, between two persons the foreign state formally recognized at the time of the marriage as male and female, to be dissolved. At the time of the Beaties' marriage in Hawaii, that state only allowed marriages between a man and a woman, and Hawaii's legislature, like Arizona's, had established statutory authority allowing persons who had undergone a sex change operation to apply for and obtain an amended birth certificate reflecting the appropriate gender.
¶ 16 Prior to marriage, Thomas complied with Hawaii's statutory requirements to amend the gender designation on his original birth certificate from female to male.9 However,after the filing of a petition for dissolution of that marriage in the State of Arizona, the family ...
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