Two Judges Disagree: Is TG Man Still Female under Ohio Law?
[CANTON, OH] - Was Sean Brookings a man or a woman at the time of three of his marriages? Two probate judges in neighboring counties don't agree.
Summit County Probate Judge Bill Spicer recognizes the transsexual man's fourth marriage to a biological woman as valid. But Stark County Probate Judge R.R. Denny Clunk had him arrested for making false statements on three marriage license applications.
Brookings was arraigned in Canton Municipal Court February 7 before Judge John Poulos, and pleaded not guilty to Clunk's charges. He was arrested at his Springfield Township home the day before.
Springfield Township is in Summit County. Canton is in Stark County.
Clunk's September 27, 2001 complaint accuses Brookings of making false statements on his 1988, 1990 and 1994 marriage license applications. All three licenses were granted by Clunk.
"This is a terrible sham on the court," said Clunk. "The marriage licenses were issued by fraud. He said he's a male, and he's not a male under Ohio law."
Clunk conceded that it is "unusual" for a judge to become the complainant in a case, but he added, "I am the proper party according to Ohio marriage statute."
"It's a minor misdemeanor. It was called to my attention, and I don't remember how," said Clunk. "Somebody called the marriage license bureau from Akron. I don't know who that person was, but they wanted to know if we have marriage licenses for [Brookings], and did you know that this person is not a male as he purports to be?"
Clunk's allegation that Brookings committed fraud by claiming to be male collides with a decision by Spicer in Summit County, who is hearing the contest of the will of Brookings' most recent wife, Dimple Lois McKinney.
It was Brookings' fifth marriage--the first two as a bride, the final three as a groom. The groom licenses were issued by Clunk.
Brookings, born Sharon May Brookings, underwent sexual reassignment surgery from 1986 to 1991. Upon becoming a man, Brookings did not get a legal name change through probate court, but did, as Ohio law allows, get a new social security card and driver's license with his new name and sex using the documentation of his surgery.
Ohio law does not allow a change to be made to the sex designator on a birth certificate after reassignment surgery.
McKinney's children Leslie Allen McKinney and Kimberly Mendez, both of Akron, say their late mother's will is fraudulent because her 1995 marriage to Brookings was fraudulent.
But in a pre-trial motion ruling January 31, Spicer affirmed the 1990 marriage of Brookings to his fourth wife, Julia Castells Barreda, as valid and in effect at the time Brookings applied for the license to marry McKinney.
Spicer declared the fifth marriage "void ab initio, void from the beginning, based on "this court's finding that Sean Brookings was married to Julia Garcia Barreda at the time of the marriage to Lois McKinney."
The two issues in the Summit County case are whether or not the marriage to a female-to-male transsexual is considered a legal marriage in Ohio, and whether or not Brookings legally owns the mobile home he shared with his most recent wife. The home is the only tangible asset of the marriage, and she changed the deed prior to their marriage to pass the property to the surviving spouse.
By his ruling, Spicer indicated that while Brookings' marriage to McKinney was not valid for other reasons, his earlier marriage to Barreda, four years after surgery, was.
Canton City Prosecutor Frank Forchione said he was unaware of Spicer's ruling.
Forchione said he was approached about the case by the Stark County prosecutor, who had been called by McKinney's attorney, Vincent Alfera of Tallmadge.
Forchione said that he decided to prosecute Clunk's case, even though the events took place 8 to 14 years ago. The statute of limitations on first degree misdemeanors in Ohio is two years.
"It was just discovered," said Forchione, "and the number of people that
were defrauded justifies going ahead with it. It will be up to the court to decide if it is right."
Forchione said it is "extremely rare" for a judge to become a complainant in a case, and said his duty as a prosecutor was to see it through.
"I'm not aware of any of his prior rulings," said Forchione of Clunk, who has a history of anti-gay and anti- transgender rulings. "But this office doesn't see [transsexuality itself] as an issue."
In 1987, Clunk wrote the landmark In re: Ladrach opinion which denied a marriage license to a post-operative male-to-female transsexual and a biological male. It is one of two rulings in the nation that hold that sex is determined by chromosomes, not by genitals.
The other ruling, Littleton in Texas, opened the way there for same-sex marriages involving transgender partners. Two lesbian couples received Texas marriage licenses in 2000 under the ruling.
In 1996, Clunk denied a legal name change to Melissa Franjesh of Canal Fulton, calling her attempt to change her last name to that of her partner of ten years and their daughter, "a fraud on the court."
Clunk opposed the family that Franjesh and her partner Patti Foor had created with the adoption of their first daughter, not Franjesh's desire to change her name. In open court, he told Franjesh that she could change her name to anything she wanted except Foor.
Franjesh did not appeal the decision.
Brookings is out of jail following bond posted by his daughter and appeared for a pre-trial conference before Judge Poulos February 14.
The purpose of the conference was to attempt to get Brookings to accept a plea bargain.
Instead, Brookings' attorney, Randi Barnabee of Macedonia, who is transgender and specializes in transgender issues, made a motion to be admitted as Brookings' attorney.
Barnabee is a federal practice attorney and not admitted to the Ohio bar, so her motion was to represent Brookings under special circumstances, as she does in his Summit County case.
This provided the only objection by Canton Assistant Prosecutor Scott Eckstein, who said he would only agree to Barnabee if a public defender attorney were also assigned to the case.
"If this gets appealed, I don't want Brookings to be able to say he didn't have adequate legal counsel," said Eckstein.
Judge Poulos agreed to that arrangement and continued the case until February 28.
A pre-trial conference before Judge Spicer in the Summit case is scheduled for March 12.