Tuesday, April 3, 2012

Male UPS employee Calvin Radtke, and his MTF trans wife, Christine Radtke, are legally married in Minnesota

In 2005, Calvin Radtke and Christine Alisen were married in Minnesota.  Calvin works for United Parcel Service, and he added Christine to the health care benefits plan provided by his employer and administered through Miscellaneous Drivers and Helpers Union Local #638 Health, Welfare, Eye and Dental Fund ("the Fund").  Five years later, when various Fund employees realized that Christine was born a man, the Fund terminated her eligibility for coverage.  The Fund took the position that the couple was not legally married because Minnesota does not recognize same-sex marriage and sex as "observed and recorded at the time of birth" determines whether a person is male or female.

Christine filed an action against the Fund in federal district court in Minnesota.  (The case is in federal court because the employee benefits are governed by a federal statute -- ERISA -- and such cases are heard in federal court.)  On Monday, District Court Judge Michael J. Davis (a Clinton appointee) ruled that Calvin and Christine are legally married and that the Fund erred in dropping Christine from coverage.

Christine participated in the Transgender Program at the Univeristy of Minnesota Medical School in the 1980's.  In 2003, she had sex reassignment surgery.  In 2005, she obtained a court order changing her name and directing the Wisconsin State Registrar to issue a replacement birth certificate in her new name and gender.  Wisconsin did so, and a month later Christine and Calvin married.

In the litigation, the Fund cited court rulings from other states holding that a person's sex is determined at birth.  In one of the most nefarious cases, Kantaras v. Kantaras, the Florida appeals court held that Michael Kantaras was not the father of the children his wife conceived through donor insemination because he was not legally married to her at the time of conception since he had been born a woman.

Judge Davis noted that cases from other states were irrelevant.  The only issue was whether the couple was married under Minnesota law.  Judge Davis concluded that if Christine was female under Minnesota law then she was Calvin's legal spouse.  He determined it was inappropriate for the court to "invent" a federal definition of sex based on sex assigned at birth.  Rather, he determined it was proper to look at Christine's current birth certificate and official documents issued by Minnesota.  Like most states, Minnesota allows a person to change his or her sex on a birth record after sex reassignment surgery.  Minnesota does this after a court order or a letter from a doctor that the person "has completed gender reassignment surgery or hormone therapy."  (Note that this suggests that surgery is no longer required in Minnesota, something especially important for FTM transgender individuals). Wisconsin does this as well, which is why Christine was able to get a new birth record there.

The Court then noted that "the only logical reason to allow the sex identified on a person's original birth certificate to be amended is to permit that person to actually use the amended certificate to establish his or her legal sex for other purposes, such as obtaining a driver's license, passport, or marriage license."  "There is no basis," the Court continued, "to conclude that Minnesota recognizes Plaintiff as female for some purposes -- birth records and driver's licenses, but not for others -- marriage certificates."  Thus, Christine is a woman and the Fund was wrong to drop her coverage.

While the case was pending, the Fund actually amended its definition of eligibility to explicitly state that in deciding whether a marriage is between a man and a woman, it will recognize only "the anatomical sex of the individual at the time of birth."  Really?  The Fund has an independent stake in the resolution of this issue?  This is truly an outrage.  The Court in this case was not in a position to address the validity of this definition because the Fund had yet to apply it to Christine (and might not).  But it might be a matter of time before another individual faces this rule.

Of course if same-sex marriage were recognized the issue of Christine's legal sex would be irrelevant here.  But until then cases will continue to occur whose resolution turns on the sex of one spouse.  I find the ones concerning parentage, like Kantaras and another case not cited by the Court, In re Marriage of Simmons, from Illinois, especially troubling.  In those cases, children lost a parent as a result of the court's refusal to recognize either the marriage or some other basis for determining parentage.

This is an important ruling because it stands in contrast to the many decisions ruling otherwise.


Unknown said...

"There is no basis to conclude that Minnesota recognizes Plaintiff as female for some purposes -- birth records and driver's licenses, but not for others -- marriage certificates."

That sounds like a good holding.

But the Fund's policy change... Aren't there a number of people wrongly identified at birth? Is the Fund essentially going to put itself in a position where testing chromosomes (at birth, presumably) because necessary?

Fun stuff...

Kate LBT said...

My two comments:

1: The Fund is behaving exactly like an insurance company in this regard: Finding any loophole and any reason to take as much money as possible while someone is well and then to legally kick them off when they actually NEED to use their insurance.

2: Same-sex marriage is irrelevant in this case, the relevant issue is the definition of opposite-sex marriage, and the judge correctly pointed out that if no-longer-applicable legal conditions were a valid bar to entering a marriage, divorced people couldn't get married because they once were (unless they had the marriage annulled) and moreover NO ONE could get married because we were all once minors below the legal age of consent.

What this means for my own marriage is... muddy at best. I got married in 2010 - at the time my sex markers were "mixed." - my identified sex is female and my driver's license concurred with this, but my birth certificate and social security gender markers both read male. So I'm not actually SURE if I'm legally married in Minnesota under this ruling...

maddox said...

If this had been an FTM, married to a man, under his original birth certificate, he'd still be a female married to a male, although for all intents and purposes it'd be a same-sex marriage.

I would like to see cases crop up of gay transgender people. This is always a nice curveball, but in this particular instance the argument they used to deny coverage would specifically _have_ to allow for this case to occur, even if the FTM in question had changed other legal documents to male already. I wonder what argument they would come up with then?

Gina said...

Wow Nancy, you're an LGBT attorney and professor and you still use ugly language like "she was born a man." I believe you mean she was assigned male at birth. Also, any attempt to make this case applicable to same-sex marriages is a total denial of who the wife is. Honestly, as a trans person, I don't believe I'd trust you as my attorney.

Christine said...

As the woman that is the subject of this lawsuit and of this article, I find it offensive that you say "she was born a man". It is insensitive, indelicate and inaccurate. I may have been assigned that label but most certainly knew from a very early age that I was not male. I find it difficult at best when I'm attacked for being a woman that started life in circumstances not of my own choosing. But, it's far more painful when I find someone from the LGBT community and worse in this case a lawyer saying something that I deem offensive! BTW: What Gina said is spot on! It almost seems like you are upset because my marriage has been validated and Minnesota law supports it and me. I'm sorry that same sex marriage isn't here yet but we are woking on it. I'm in the trenches with the rest of our community. I have had to struggle my entire life just to love and feel like a human being. It is with great sadness that you as a lawyer and professor can't share this victory for me. This will change many things for many people . You above all people should understand that this is a win for everyone. I feel really bad for you that you don't or are incapable.

Christine Radtke

Kate LBT said...

Congratulations on your victory, Christine. I am really, genuinely, VERY happy for you and for all other heterosexual trans Minnesotans who have woken up the last two mornings to find their marriages on more-solid ground, or that Judge Davis has given them reason to believe that the marriages they dream about will be respected.

You've won a HUGE victory for the rights of ALL trans people to have our sex legally recognized for ALL purposes and thank you from the bottom of my heart.

- Katie

lourdes said...

Once again trans women are relegated to being born men. NEWS FLASH.... No one is born a man or woman. THese are socially constructed roles. Internalized phobia is real. Please let go of your bias and and allow yourself to live free. Oppressing trans folk doesn't make you look smart. If you don't want to respect the choices folk make then its not necessary for you to add to the discussion.

Debra Soshoux said...
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Debra Soshoux said...
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Debra Soshoux said...

It’s easy to find fault with LGBT lawyers who are not themselves TS. They simply lack the experiential conditions precedent that sensitize one to the sine qua non of this entire business, i.e., that it’s all about gender.

It’s easy to lapse into “so-and-so was born a man.” You read it all the time, in newspaper articles somewhere about someone who’s transitioned, MtF or FtM. Most people are linguistically sloppy. What member of any identified subgroup of humans is ever routinely characterized as having been born a “man” or “woman?” Society usually reserves those terms for people who’ve gone through some puberty rite-of-passage. It doesn’t occur to them there’s any difference between (i) sex (one’s body/DNA) and gender (their internal sense of self - and how society perceives them, not to mention (iii) sexual orientation (who they like to sleep with)). THEIR physical selves vibe with the internal sense they have about themselves. Even gay men feel like men and lesbians don’t want to be anything other than women. Who could feel differently?

Only trans people, who live this issue each and every day, comprehend viscerally that it’s not about sex. Rather, it’s about gender. In my experience, the Williams Institute, a quintessentially gay/lesbian rights organization, just doesn’t get the trans issue.

The decision was more than a hoot. It made me cry.

I googled the judge… a black guy my age (Q: how did he beat the draft?) and read his cv … a civil rights attorney and then public defender for ten years… on the bench, muni court for one year then district for ten (while being an adjunct law professor)… federal judge and finally district chief. It gave context to his challenging, almost combative (to the Union) ending tone.

And what an opinion! I know well the four bad cases he cited, all of them buying reflexively into the penis/vagina paradigm (“sex”) to the exclusion of gender and relying on now-discredited precedents. How sweet to read Judge Davis resurrect M.T. v. J.T. to eviscerate the underpinnings of Gardiner, Kantaras, Littleton and Ladrach, cases that repudiated it!

Brava, Christine!

Edith Pilkington said...

Congratulations Christine. This is an issue that goes way beyond marriage. I am curious about how much support you got from LGBT organizations and LGBT legal groups such as the Transgender Law and Policy Institute, Lambda Legal, the NGLTF, etc. I cannot believe the dearth of press coverage.

I don't know if this would be of any help to anyone but when inquiring about my life insurance from Massachusetts Mutual, I explained that I am legally female. They agreed and told me any new contracts entered into would have to be calculated at female rates but contracts entered into previous to legal sex change were to remain in effect as they were written. Here is the correspondence I had with them on the subject:

Barros, Gershom gpbarros@finsvcs.com to me
show details 12/08/2008

Hi Eidth,

Just confirming that Mass Mutual will issue new insurance to you as a female.


MML Investors Services, Inc.
A member of the MassMutual Financial Group
Gershom P Barros Superviory Office
Registered Representative 10 Charles St. #210
Financial Adviser Providence, RI 02904
423 Wayland Avenue 401-435-3800
Providence, RI 02906-4661

Cell: (401) 241-6674 Fax: (888) 232-4505

No trades may be placed over the email system.
From: Korber, Michael
Sent: Tuesday, August 12, 2008 3:19 PM
To: Barros, Gershom
Subject: FW: Call Ed Pires _ 860-562-3107

This confirms out understanding that new business would be Underwritten at female rates. As soon as I get confirmation on the conversion I will forward that as well.


From: Pires, Eduardo
Sent: Tuesday, August 12, 2008 2:55 PM
To: Korber, Michael; Barros, Gershom
Subject: RE: Call Ed Pires _ 860-562-3107

You are correct Mike. As soon as I get a response from the conversion specialist, I will let you know what the answer is.
Please let me know if there is anything else I can help with.

Eddie Pires

Associate Underwriter
MassMutual Financial Group
Phone: 1 860-562-3107
email: epires@massmutual.com

From: Korber, Michael
Sent: Tuesday, August 12, 2008 2:46 PM
To: Barros, Gershom
Cc: Pires, Eduardo
Subject: FW: Call Ed Pires _ 860-562-3107


I spoke to Ed Pires this afternoon on your question about Edith. He confirmed to me that they would underwrite new business as female but was checking into the policy on conversion. I will let you know as soon as I hear from Ed. I have cc'd Eddie to confirm that my understanding of that conversation was correct.


From: La Riviere, Corey
Sent: Tuesday, August 12, 2008 11:52 AM
To: Korber, Michael
Subject: Call Ed Pires _ 860-562-3107

Ed called for you while you were out.

at 12:00 on Tuesday.

Give him a call when you return.

Thank you,

Corey A. La Riviere
Brokerage Department
MassMutual Financial Group
10 Charles St. Suite 210
Providence RI 02904
401-435-3800 ext. 383
401-457-7383 Direct Line
401-435-3833 Fax

I don't know if I would go as far as Gina about whether or not I would trust you as a lawyer, Nancy. I have read a lot of what you have written and have been very favorably impressed. You would, however, have to demonstrate that you have a much better handle on what is involved in situations like this before you would be able to earn my trust if I were to rely on your counsel regarding any attempt to challenge my legal sex status. The silence issuing forth from the various LGBT news sources, blogs and legal groups has been deafening. I have to give you credit for at least acknowledging the Davis Decision. If the health insurance company or anyone else appeals, one would expect a vigorous defense of the Judge Davis decision from any true ally of people who are post transsexual.

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