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I am sure you have seen the stories about the recent legal rulings about same-sex marriage in New Mexico, Utah and Ohio.

But there has been one case that has so far snuck beneath the radar.  I was planning on covering it last Tuesday, but came down sick with the flu.  I'm still sick, but a bit better.

This case comes out of southern Indiana.  David Paul Summers and Angela Summers married in Brown County, IN on October 30, 1999.  During the marriage Mr. Summers was diagnosed with gender dysphoria.  Mr. Summers then decided to transition and legally changed his name to Melanie Davis in 2005.  A Marion County judge ordered the gender on Davis' birth certificate changed from "male" to "female" in 2008 to conform with her gender identity, legal name and appearance.

Davis and Summers separated in 2008 and Davis filed for divorce in 2012.  Summers did not contest the divorce.  The couple reached an agreement that granted custody of their child to Davis and required Summers to pay child support.

That's when Monroe Circuit Judge Valeri Haughton decide to get involved.  She rejected the divorce petition, ruling that the marriage had automatically become invalid when Davis' birth certificate was changed, resulting in the marriage of two women.  Haughton said she could not legally dissolve a marriage that had already been rendered void.  

Last Friday the Court of Appeals ruled 3-0 that Haughton's finding was in error.  

The court ruled the marriage must be dissolved through traditional means because at the time of their wedding Davis and Summers fully complied with Indiana’s marriage law, which reads, “Only a female may marry a male.  Only a male may marry a female.”
Judge Paul Mathias said that Indiana's ban on same sex marriages does not apply in this case because Davis and Summers did not initially enter into a same-sex relationship.  He said that there is no state law that voids a legal marriage simply because one of the parties changes his or her gender.  
Thus, the trial court’s reading “has the effect of adding the type of marriage at issue, a marriage between a male and female solemnized pursuant to Indiana law,” to the list of marriages that are “void ab initio” under the “Void Marriages” provision.  Judge Mathias opined that making such an addition to the list was beyond the authority of the trial court, and would have the undesirable effect of creating an “untenable situation” for the child of Davis and Summers.  “To conclude that the parties’ marriage somehow became void when the gender was changed on Davis’s birth certificate would permit Davis to effectively abandon her own child, even though the parties were validly married at the time of the child’s birth and even though Davis is the child’s father.  It would also leave the parties’ child without the protection afforded by Indiana’s dissolution statutes with regard to parenting time and child support.  We do not think that our General Assembly intended such a result.”

--Art Leonard Observations

The ruling itself is available here.  The appellant brief of Melanie Davis is here.

Originally posted to TransAction on Fri Dec 27, 2013 at 04:00 PM PST.

Also republished by Kossacks for Marriage Equality, Voices on the Square, and LGBT Kos Community.

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