What if Franz Kafka wrote about transgender people and same-sex marriage?
One possible answer to that question is not a work of fiction. It's a current news story unfolding in the State of Arizona.
There, Thomas Beatie--who made headlines a few years ago as the "pregnant man", lived with Nancy, the woman he married in Hawaii in 2003. Now he is trying to dissolve that union because, he says, she is violent and has even punched him in the crotch in front of their children. He is willing to pay child support to keep his children in his life.
Now, even in most states that don't allow same-sex unions, a person who legally "changes" his or her sex can marry someone of the opposite sex. The problem is that states do not all define gender in the same way. For example, in New York, I was considered female as soon as I had letters from my doctor and therapist saying that I was taking hormones and living as a woman in anticipation of gender-reassignment surgery. However, at the time (2003-2004), most states and the Federal government required the surgery as a condition of recognizing a person's gender change. That meant my New York State ID had an "F" in the "Gender" box, but my passport bore the "M" and Social Security still identified me as male.
(Actually, I was able to get a one-year passport in the female gender when I first transitioned, and I was able to renew it twice before more restrictive policies were enacted. So I was able to take a trip to France and another to Turkey before I had to get the male passport I had until my surgery.)
Apparently, Hawaii's policies were more like New York's when Mr. Beatie got married. Apparently, Arizona is more restrictive in the way it defines gender. Or, at least, that's how Judge Douglas Gerlach interprets the law, or what he believes it to be.
He refused to grant a divorce because, he said, the Beaties weren't married in the first place: The Copper State doesn't allow or recognize same-sex marriage. According to the judge, there isn't "sufficient evidence" to show that Thomas Beatie was indeed a man when he got married. The esteemed jurist cited the interruption in Beatie's hormone treatments and said that the couple hadn't provided records to fully explain what Thomas had and hadn't done to become a man by the time he and Nancy wed in Honolulu.
Now, I'm not any sort of legal scholar, but if there is indeed a "lack of evidence," I can understand how Judge Gerlach would rule that, under Arizona law, would rule that the Beaties were never married. After all, as judge, it is his job to adjudicate according to the laws of his state. On the other hand, his ruling begs the question of what, exactly, constitutes a legal change in gender identity in Arizona, and why it or any other state would not recognize a marriage that was perfectly legal in another.
So now Thomas Beatie is in a double bind: Because a judge in Arizona doesn't recognize his marriage, he can't get a divorce. That means he can't leave his wife without, in essence, deserting her and their children. Of course, his willingness to pay child support shows he doesn't want to do that. And, on top of everything, he can't marry his new girlfriend in either Arizona or Hawaii--or, for that matter, in any other state that recognizes his marriage. While Arizona (and, probably, many other states) wouldn't allow or recognize such a union, in Hawaii he would be guilty of bigamy. And he'd still wouldn't have custody of his kids.