Angry Judge Denies a Marriage License Again

Transsexual groom-to-be refuses to answer court questions about his genitalia

[WARREN, OH] - Trumbull County Probate Judge Thomas A. Swift again denied a heterosexual couple a marriage license--this time because the groom- to-be, who is transsexual, would not answer questions about his surgery and physical attributes.

Swift made his oral ruling during a November 5 hearing, after a dramatic and lengthy exchange between the judge and attorney Deborah Smith, who represents the couple, Jacob Nash, 37, and Erin Barr, 30, of Howland.

The exchange was so contentious that Swift got up and walked out of the courtroom after he ruled, forgetting to adjourn court. Nash was left seated in the witness stand.

The hearing resulted from Nash and Barr submitting a second application for a marriage license October 2, less than 48 hours after Swift denied their first application because it contained errors, he said.

The two applications are separate cases with different numbers. The first case is still under appeal. But Swift's insistence that all the evidence presented in the first case become part of the second case drew the first objection from Smith.

The two were at odds over Nash's uncorrected Massachusetts birth certificate, which the court obtained in 2000 as part of Nash's name change.

That birth certificate was sealed under Massachusetts law when, following sex reassignment surgery, Nash was issued a new one with the sex marker corrected.

Smith admits that it was a mistake allowing the uncorrected birth certificate into evidence in the first case, noting that,"the court already had it anyway."

But in this case, Smith argued that Ohio must honor the Massachusetts order according to the "full faith and credit" clause of the U.S. Constitution.

Swift admitted it into evidence anyway, above Smith's objections.

Smith insisted that the judge "take judicial notice of the law of Massachusetts."

"I'm not familiar with taking notice of other states," said Swift, "If you want to file a brief, we can talk about it."

Smith said after the hearing that taking notice of other jurisdictions is one of the basic rules of evidence that govern all courts.

Smith called Barr to the stand first to answer questions about what happened when she and Nash presented their second application to clerk Rosemary Horvath.

The couple went through the procedure exactly as Horvath would handle any couple's application, by presenting a driver's license for identification and answering a few questions under oath.

Smith also put into evidence Barr's birth certificate from West Virginia, which does not have a sex designation, and her Ohio driver's license, which does.

"Do you believe that your fundamental right to marry under the U.S. Constitution has been obstructed?" asked Smith.

"Yes," said Barr.

"Do you believe you have received disparate treatment from this court that violates your right under the U.S. Constitution to equal protection under the law?" asked Smith.

Smith later asked the same questions of Nash.

Barr replied, "Yes."

"Why?" asked Smith.

"Because we have been required to produce an exponential amount of evidence to prove our gender in the state of Ohio," said Barr.

Prior to the September 5 hearing on the first application, Smith signaled to Swift that if he denies a marriage license to the couple, her clients would bring a federal civil rights suit against him.

Smith asked Nash questions nearly identical to those asked Barr. However, Swift, who did not ask Barr anything, began questioning Nash about his Massachusetts divorce decree. His name on the document is Pamela Nash.

"When you filed your divorce petition, how did you sign your documents?" asked Swift?

"Pamela," replied, Nash.

"How are you identified on your [uncorrected] birth certificate?" asked Swift.

"Objection!" said Smith, on the basis that Massachusetts has already settled the matter of Nash's corrected sex, and Swift has neither the authority to overrule it nor issue an Ohio birth certificate in its place.

Swift noted her objection, but pressed Nash anyway and ordered him to answer.

"Pamela Nash," said Nash.

Pointing to his right under Ohio law to determine matters of fact in marriage license applications, Swift inquired about the process of correcting a Massachusetts birth certificate.

Nash said it required a statement from a physician.

Then, Swift made what Smith called an "unfair surprise" by changing the controlling issues in the case. These had been previously agreed to in a journal entry made by Swift, and in Smith's pretrial report. Both outlined the issues to be addressed at trial.

Swift's journal entry indicated that the 1987 Stark County probate case In Re Ladrach would be the controlling case law here.

In that case, the court denied a male to female transsexual the right to marry on the basis that chromosomes at birth determine sex.

But during the hearing, Swift said that the standard for determining sex he was applying was last year's Kansas Supreme Court ruling In Re Estate of Marshall Gardiner, which lists eight areas that affect sex designation including hormones, gonads, chromosomes, phenotype, and sex assigned at birth.

"The court finds that the holdings in [Gardiner] are more contemporary than Ladrach," said Swift. "We are not going to rely on chromosomes."

If allowed to pursue that line of law, Swift would have been able to ask Nash about his surgeries and his current anatomical structures. Smith said later that had she known the judge was going to do that, she would have brought a medical expert to testify.

Smith objected again, telling Swift that Massachusetts has already settled the matter of Nash's sex and this case was about whether or not the judge was going to grant full faith and credit to it. She instructed Nash not to answer the judge's questions.

Swift argued that he has the right to make the inquiries according to Ohio law and that full faith and credit does not need to be given if doing so would violate a state's public policy--in this case, against what he perceives to be a same-sex marriage.

Smith shot back that the judge was invading Nash's privacy, and in doing so "causing harm you should not cause."

"All I attempt to do is look into those issues," said Swift, "Jacob is a post-operative female-to-male transsexual and this court has the opportunity to determine what has been completed and what has transpired."

Smith then charged that Swift was violating canons of legal ethics by "unnecessarily prying into a private matter."

At that, Swift said, "The court has no alternative but to deny the application." As he left the courtroom he told Smith, "You may submit a brief or you have the right to appeal."

Smith said she will appeal.