Beatie v. Beatie ( 2014 )


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  •                                 IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    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.
    No. 1 CA-CV 13-0209
    FILED 08-13-2014
    Appeal from the Superior Court in Maricopa County
    No. FC2012-051183
    The Honorable Douglas Gerlach, Judge
    REVERSED AND REMANDED
    COUNSEL
    Cantor Law Group P.L.L.C., Phoenix
    By David M. Cantor, Allyson Del Vecchio
    Counsel for Petitioner/Appellant-Appellee
    Law Office of David B. Higgins P.L.L.C., Phoenix
    By David B. Higgins
    Counsel for Respondent/Appellee-Appellant
    Campbell Law Group, Chartered, Phoenix
    By Claudia D. Work
    Counsel for Amicus Curiae Transgender Law Center
    OPINION
    Judge Kenton D. Jones delivered the opinion of the Court, in which
    Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
    joined.
    J O N E S, Judge:
    ¶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
    1      Thomas also appealed the family court’s orders concerning child
    custody, child support, and property division; Nancy appealed the family
    court’s failure to rule on her petition for spousal maintenance.
    2     Absent material revisions after the relevant dates, we cite the
    current version of the statutes and rules unless otherwise indicated.
    2
    BEATIE v. BEATIE
    Opinion of the Court
    decree of dissolution and remand for proceedings consistent with this
    opinion.
    FACTS AND PROCEDURAL HISTORY
    I.    Thomas’s Background and Gender Reassignment
    ¶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.
    II.   The Post-Reassignment Affidavit
    ¶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
    3      In the only expert testimony considered by the family court
    pertaining to the issue of subject matter jurisdiction, Dr. Brownstein
    offered the uncontroverted opinion that the surgery he performed on
    Thomas was medically necessary and sufficient to support his
    redesignation as a male.
    4     Dr. Brownstein, a plastic surgeon with thirty-five years of
    experience in performing transgender-related surgeries, estimated he
    performs 150 to 200 transgender-related surgeries a year.
    3
    BEATIE v. BEATIE
    Opinion of the Court
    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.
    III.   Thomas and Nancy
    ¶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
    5      In his Memorandum in Support of Subject-Matter Jurisdiction,
    Thomas stated: “In order to obtain the marriage license, [I] was required
    to furnish photo identification which reflected [my] gender identity.” The
    record does not provide documentation of any other requirements for
    obtaining a marriage license in the state of Hawaii at the time the Beaties
    married in 2003.
    4
    BEATIE v. BEATIE
    Opinion of the Court
    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.
    IV.   The Beaties’ Filing of their Petition for Dissolution of Marriage
    ¶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 questioned whether the marriage between Thomas and
    Nancy was a same-sex marriage.
    V.    The Family Court’s Ruling on Subject Matter Jurisdiction
    ¶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
    5
    BEATIE v. BEATIE
    Opinion of the Court
    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).
    STANDARD OF REVIEW
    ¶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).
    6      The family court further stated: “The decision here is not based on
    the conclusion that this case involves a same-sex marriage merely because
    one of the parties is a transsexual male, but instead, the decision is
    compelled by the fact that the parties failed to prove that Petitioner
    [Thomas] was a transsexual male when they were issued their marriage
    license.”
    7       A.R.S. § 25-112(A) provides: “Marriages valid by the laws of the
    place where contracted are valid in this state, except marriages that are
    void and prohibited by § 25-101.” Arizona’s statute on prohibited
    marriages states, in pertinent part: “Marriage between persons of the same
    sex is void and prohibited.” A.R.S. § 25-101(C).
    8      In consideration of these issues, the family court received an
    amicus brief from the Transgender Law Center, and invited the Office of
    the Arizona Attorney General to submit an amicus brief on behalf of the
    people of Arizona. The Office of the Arizona Attorney General declined
    the invitation.
    6
    BEATIE v. BEATIE
    Opinion of the Court
    DISCUSSION
    ¶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 court ruled
    it lacked subject matter jurisdiction to dissolve the marriage, finding the
    married couple failed to provide sufficient evidence that their marriage
    could be recognized under Article 30, Section 1, of the Arizona
    Constitution, which states: “Only a union of one man and one woman
    shall be valid or recognized as a marriage in this state.” As explained
    below, we disagree with the family court.
    ¶17            Following the framework established by the family court, we
    center our discussion on Thomas’s birth certificate. Accordingly, we
    discuss the statutory authority underlying the authenticity of the
    certificate, and the rights accompanying an amended gender designation.
    A.    The Statutory Authority for Arizona’s Recognition of Thomas’s
    Amended Hawaii Birth Certificate
    1. The Requisites of Obtaining Amended Certificates of
    Birth in Hawaii
    ¶18          H.R.S. § 338-17.7 provides in relevant part:
    9     While the immediate case involves a transgendered male and a
    non-transgendered female, this Opinion would not be different in a
    circumstance where a transgendered female and non-transgendered male
    sought a Decree of Dissolution.
    7
    BEATIE v. BEATIE
    Opinion of the Court
    (a) The department of health shall establish, in the following
    circumstances, a new certificate of birth for a person born
    in this State who already has a birth certificate filed with
    the department and who is referred below as the “birth
    registrant”:
    ....
    (4) Upon receipt of an affidavit of a physician that the
    physician has examined the birth registrant and has
    determined the following:
    ....
    (B) The birth registrant has had a sex change operation and
    the sex designation on the birth registrant’s birth certificate
    is no longer correct; provided the director of health may
    further investigate and require additional information that
    the director deems necessary.
    ¶19             When interpreting a statute, we first look to its language; if
    the statute’s language is clear and unambiguous, we apply it without
    employing other principles of statutory interpretation. Sheehan v. Flower,
    
    217 Ariz. 39
    , 40-41, ¶ 10, 
    170 P.3d 288
    , 289-90 (App. 2007). Hawaii uses
    that same principle of statutory interpretation. Behr v. Lewin, 
    852 P.2d 44
    ,
    60 (Haw. 1993). Unless otherwise defined, words in a statute are
    construed according to their plain and ordinary meaning. U.S. Parking
    Sys. v. City of Phx., 
    160 Ariz. 210
    , 212, 
    772 P.2d 33
    , 35 (App. 1989); A.R.S. §
    1-213; see H.R.S. § 1-14. In accordance with Hawaii principles of statutory
    interpretation, we will not read provisions into the statute that are not
    articulated by its express language. See Williamson v. Haw. Paroling Auth.,
    
    35 P.3d 210
    , 222 (Haw. 2001).
    ¶20            The clear and unambiguous language of the above-
    referenced Hawaii statute requires only that an examining physician
    provide an affidavit, and that the affidavit indicate “the birth registrant
    has had a sex change operation and the sex designation on the birth
    registrant’s birth certificate is no longer correct.”      H.R.S. § 338-
    17.7(a)(4)(B). In accordance with H.R.S. § 338-17.7, Thomas provided the
    State of Hawaii with an affidavit from Dr. Brownstein verifying he had
    undergone a sex change operation, as well as extensive hormonal and
    psychological treatment, and that the specific procedures and treatment
    qualified Thomas to be “legally considered male.” Therefore, Thomas
    complied with the statute.
    8
    BEATIE v. BEATIE
    Opinion of the Court
    ¶21            As addressed above, Thomas did not withhold his
    transgender status from Hawaii authorities. Additionally, however,
    under H.R.S. § 338-17.7(a)(4)(B), if Hawaii’s Director of Health had any
    question about the nature or extent of the medical procedures Thomas had
    undergone, he had authority to “further investigate and require additional
    information” deemed necessary for the issuance of Thomas’s amended
    birth certificate. Moreover, while the statutory language allows for
    further investigation by the Director of the Hawaii Department of Health
    if deemed appropriate, it does not expressly require any further detail or
    quantum of proof, and it was not within the authority of the family court
    to, sua sponte, expand the requisites of the Hawaii statute. Had the Hawaii
    legislature intended to require an applicant to submit a physician’s
    affidavit specifying the precise nature of the surgery performed, that
    specific surgical procedures had, in fact, been completed, or that the birth
    registrant was no longer capable of procreation, it could have done so.
    ¶22           Therefore, the possibility of Thomas giving birth to children
    did not preclude him from legally amending his birth certificate under the
    plain language of the Hawaii statute. Further, there is no apparent basis
    in law or fact for the proposition that in the event Thomas gave birth after
    having modified his gender designation, it would have abrogated his
    “maleness,” as reflected upon the amended birth certificate.
    ¶23           In that regard, the Hawaii Director of Health illustrated his
    conclusion that Thomas met the statutory requirements for his re-
    designation as male pursuant to H.R.S. § 338-17.7 by accepting the
    affidavit presented by Thomas without further inquiry. See Verdugo v.
    Indus. Comm’n of Ariz., 
    108 Ariz. 44
    , 48, 
    492 P.2d 705
    , 709 (1972) (“This
    court has adhered to the general rule of law that public officers are
    presumed to have done their duty, and that acts of public officials are
    presumed to be correct and legal in the absence of clear and convincing
    evidence to the contrary.” (internal citations omitted)); see also Haley v.
    Dep’t of Treasury, 
    977 F.2d 553
    , 558 (Fed. Cir. 1992) (“’[T]here is a
    presumption that public officers perform their duties correctly, fairly, in
    good faith, and in accordance with the law and governing regulations.’”)
    (quoting Parsons v. United States, 
    670 F.2d 164
    , 166 (Ct. Cl. 1982)); Whitlock
    v. Brueggemann, 
    682 F.3d 567
    , 586 (7th Cir. 2012) (“[C]ourts ‘presume that
    public officials have properly discharged their official duties.’”) (quoting
    Banks v. Dretke, 
    540 U.S. 668
    , 696 (2004)).
    9
    BEATIE v. BEATIE
    Opinion of the Court
    2.    The Requisites of Amending Birth               Certificates   of
    Transgendered Persons in Arizona
    ¶24            There being no basis upon which to legally challenge
    Thomas’s amended Hawaii birth certificate, that same birth certificate
    must be recognized by the State of Arizona, as Arizona itself permits the
    amendment of birth certificates for transgendered persons. A.R.S. § 36-
    337 states in relevant part:
    (A) The state registrar shall amend the birth certificate for a
    person born in this state when the state registrar receives
    any of the following:
    ....
    3. For a person who has undergone a sex change operation
    or has a chromosomal count that establishes the sex of the
    person as different than in the registered birth certificate:
    (a) A written request for an amended birth certificate from
    the person . . . .
    (b) A written statement by a physician that verifies the sex
    change operation or chromosomal count.
    ¶25            Unlike Hawaii, Arizona’s more liberal standard only
    requires a “written statement” rather than an “affidavit” by a physician
    verifying a sex change operation. A written statement is just that. An
    affidavit, on the other hand, “is a signed, written statement, made under
    oath before an officer authorized to administer an oath or affirmation in
    which the affiant vouches that what is stated is true.” In re Wetzel, 
    143 Ariz. 35
    , 43, 
    691 P.2d 1063
    , 1071 (1984); see State v. Guthrie, 
    108 Ariz. 280
    ,
    283, 
    496 P.2d 580
    , 583 (1972) (finding an unsworn written statement failed
    to meet the requirements of an affidavit). In addition, A.R.S. § 36-337
    permits an amendment of gender designation based upon a sex change
    operation or chromosomal count. However, consonant with H.R.S. § 338-
    17.7, Arizona’s statute does not require specific surgical procedures be
    undertaken or obligate the applicant to forego procreation.10 As such, the
    10      Similar to our reading of H.R.S. § 338-17.7, we will not read into
    A.R.S. § 36-337 a requirement not within the manifest intention of the
    legislature as expressed by the statute itself – such as a prohibition against
    giving birth as a prerequisite to gender redesignation. State Farm Mut.
    10
    BEATIE v. BEATIE
    Opinion of the Court
    sworn affidavit Thomas presented to the Director of the Hawaii
    Department of Health toward obtaining an amended birth certificate also
    met the requisites of Arizona’s own statutory provision.
    B.    Full Faith and Credit Has Been Extended To the Beaties’ Hawaii
    Marriage Through the Passage of Arizona Revised Statute § 25-
    112(A)
    ¶26           Arizona has enacted an explicit extension of the federal Full
    Faith and Credit Clause to marriages entered into in other states, such as
    the State of Hawaii in the immediate matter, through its passage of A.R.S.
    § 25-112(A). That statute provides that “[m]arriages valid by the law of
    the place where contracted are valid in this state, except marriages that are
    void and prohibited by § 25-101.” A.R.S. § 25-112(A). Thomas and Nancy
    entered into marriage in Hawaii, which at the time restricted marriage to
    only occurring between a man and a woman. Moreover, at the time
    Thomas and Nancy married, Thomas possessed dispositive, state-issued
    credentials reflecting his “male” status, and Nancy held similar
    credentials that dispositively reflected her “female” status.           Their
    marriage, therefore, was “valid by the law of the place where contracted,”
    as reflected by the issuance of the marriage license by the State of Hawaii.
    Consequently, Thomas and Nancy’s marriage is also valid in this state,
    pursuant to § 25-112(A), as their marriage is between a man and a woman,
    and the strictures of § 25-101 do not preclude the marriage. Specifically,
    their marriage is not void by virtue of sections A or B of that statute, and,
    in consideration of section C, it is not a “[m]arriage between persons of the
    same sex,” as was determined by the State of Hawaii prior to the issuance
    of the Beaties’ marriage license.
    ¶27         In interpreting and applying the nearly identical laws of
    Arizona and Hawaii regarding the issuance of amended birth certificates
    predicated upon transgendering, we are obligated to allow those who
    obtain such certificates the rights attributable to the assertions of their
    Auto. Ins. Co. v. White, 
    231 Ariz. 337
    , 341, ¶ 14, 
    295 P.3d 435
    , 439 (App.
    2013) (quoting City of Tempe v. Fleming, 
    168 Ariz. 454
    , 457, 
    815 P.2d 1
    , 4
    (App. 1991)). Moreover, the right to have children is a liberty interest
    afforded special constitutional protection. Skinner v. Okla. ex rel.
    Williamson, 
    316 U.S. 535
    , 541 (1942) (“We are dealing here with legislation
    which involves one of the basic civil rights of man. Marriage and
    procreation are fundamental to the very existence and survival of the
    race.”).
    11
    BEATIE v. BEATIE
    Opinion of the Court
    amended certificate — the same rights that would inure to one who had
    been issued that certificate at birth. See Radtke v. Miscellaneous Drivers &
    Helpers Union Local No. 638 Health, Welfare, Eye & Dental Fund, 
    867 F. Supp. 2d 1023
    , 1034 (D. Minn. 2012) (“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.”); In re Ladrach, 
    32 Ohio Misc. 2d 6
    , 9-10, 
    513 N.E.2d 828
    , 831-32 (Ohio Prob. Ct. 1987) (although finding under Ohio
    law, which did not allow transgender persons to amend their birth
    certificates, that a marriage license could not be issued to a post-operative
    female transsexual person and a male person, the probate court noted: “It
    seems obvious to the court that if a state permits such a change of sex on
    the birth certificate of a post-operative transsexual, either by statue or
    administrative ruling, then a marriage license, if requested, must issue to
    such a person provided all other statutory requirements are fulfilled.”).
    To determine otherwise would run afoul of the equal protection clause of
    the U.S. Constitution. See U.S. Const. amend. XIV, § 1 (“No State shall . . .
    deny to any person within its jurisdiction the equal protection of the
    laws.”).
    ¶28              As the Beaties’ Hawaii marriage was lawfully entered in
    Hawaii and is not deemed void by Arizona law, the marriage is valid
    within this state. Accordingly, the family court has subject matter
    jurisdiction to enter a decree of dissolution, presuming all other
    jurisdictional requirements are met.11
    CONCLUSION
    ¶29           For the foregoing reasons, we find the family court has
    subject matter jurisdiction to proceed with the Beaties’ petition for
    dissolution of marriage and, ultimately, to enter a decree of dissolution,
    and therefore reverse the family court’s dismissal of the Beaties’
    dissolution petition. In this case, the family court also issued orders
    regarding child custody, child support, and property division, which the
    Beaties also appealed. See supra ¶ 1 n.1. Given the interrelated nature of
    these issues with a marital dissolution, we remand the entirety of the
    issues raised on appeal to the family court for further proceedings
    consistent with this opinion.
    11     See A.R.S. § 25-312.
    :gsh
    12