Sex-change operation resulting in a same-sex marriage. Urgent!

[Guest dani_o]

A married participant has a sex change operation (male to female) but remains married to his (now her) wife. How are they to be treated during a new enrollment period? A same sex couple, which would seem appropriate due to new/different health risks and possible expenses? Are they "grandfathered" into the plan or under law as a heterosexual couple since they were married at the time of operation?

[jeanine]

How does your state treat the legal status of someone who has had a sex-change operation? Is there a new birth certificate issued listing the person as a legal female? Are they still legally married? I sort of see your point that some health care gender distinctions apply given the surgery, however genetically she is still a male. Wouldn't male gender mortality, disease rates, etc. still apply?

[KIP KRAUS]

Just my guess, but if the laws in the state where they reside continue recognize their original marriage I'd say you need not do anything. What does the insurance company or TPA say?

[Kirk Maldonado]

I'm not sure that state law would necessarily be determinative on this point. I think that you should also check out what the EEOC's' position is on this topic.

Let's hope that you don't find any inconsistencies between federal and state law.

[KIP KRAUS]

Kirk:

You’ve peaked my interest with your post. Why would federal law trump state law with regard to a legal marriage?

If I get a sex change does this mean I can be covered as a female under the state and federal EEO laws?

Why would the EEOC care about this situation any way?

Please educate us.

[jeanine]

I have in the back of my mind a court case I read somewhere, I think on CNN.com about a probate battle involving the son of the deceased and the deceased's new wife who used to be a man. The issue is whether they could have legally been wed in the state where the estate is situated since that state does not reissue birth licenses to sex-change individuals. Hence, there could be no legal marriage. If she is still legally considered a man, their marriage should still be legal. If they divorced, and there is no same-sex benefit, then there is no coverage. I'm afraid you're not going to find a definitive answer anytime soon. Let us know what state this involves. Perhaps you can get a friendly law professor from a school in your state to comment on the legal status of the individuals involved.

[david rigby]

Ouch! My head hurts just thinking about this!

[Kirk Maldonado]

KIP KRAUS:

I didn't say federal law would necessarily govern; I only said I think you should also consider any federal issues. I certainly would never advise a client on this matter without first attemptoing to resolve whether or not any federal rules would apply.