Arizona judge rules 'pregnant man' can't divorce wife

March 29, 2013

A transgender Arizona man who made headlines for being pregnant as a man has been denied a divorce from his current wife. A Maricopa County Superior Court judge decided their marriage can't be legally recognized or dissolved in Arizona.

According to court records, Thomas Beatie was born a woman but underwent hormone therapy and a double mastectomy more than ten years ago. He changed his Hawaiian birth certificate to male, and married Nancy Beatie, a woman, in Hawaii. 

Because Nancy couldn't have kids, Thomas — who still had female reproductive organs — gave birth to three children. 

The couple now lives in Arizona and wants to get divorced. 

Judge Douglas Gerlach found the couple did not supply enough evidence that their marriage was a valid opposite sex marriage, given that Thomas could still bear children. Gerlach denied the divorce, since Arizona doesn't recognize same-sex marriages.

"This judge got the law wrong," said Ilona Turner, legal director for the Transgender Law Center in San Francisco. Turner said Arizona does allow transgender people to get sex change operations and enter legally recognized marriages, as well as recognizes those marriages from other states.

"To deny recognition to a transgender person's gender identity, to deny a transgender person the right to marry, solely because they have preserved their ability to have biological children which is supposed to be a fundamental constitutional right in this country," is problematic, Turner said.

Turner said such an interpretation would mean transgender people would have to be sterilized to be eligible to enter into a legal marriage, which she said raises constitutional issues. 

But Arizona transgender attorney and activist Abigail Jensen said she understood legally why the judge declined to accept Thomas Beatie as male based on his amended birth certificate from Hawaii.

"Given the lack of clarity in the statutes there and here about what surgical treatments are required in order to obtain an amended birth certificate, you know, I am not sure the court is necessarily wrong," Jensen said.

Nevertheless, Jensen believes the way the law handles these cases is troubling. 

An attorney for Thomas Beatie is expected to comment on Tuesday. Before they sought a divorce, the couple were featured on Oprah and other media outlets. Thomas authored a book about his experience giving birth while identifying as a man.

Updated 3/30/2013 at 10:12 a.m.

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