'Pregnant Man's' divorce case leaves judge in doubt

Michael Kiefer, The Arizona Republic | The Arizona Republic

PHOENIX -- Thomas Beatie became a man in 2002, based on notes from his doctors, and shortly thereafter, he became a husband and a parent.

But now a Maricopa County Superior Court judge is questioning his gender and the legitimacy of his marriage, because after being legally declared male, Beatie performed that most female of miracles: He gave birth to three children.

Beatie was born a woman. He had his upper body recontoured to resemble a man's. He underwent male hormone therapy. A psychologist attested that he was psychologically male. But he still has female reproductive organs. He married his girlfriend, and because she could not have children, he did.

Then he hit the talk-show circuit, touting himself as "The Pregnant Man," posing for photos with his beard and his very pregnant belly.

It has come back to haunt him. Now Beatie and Nancy, his wife of nine years, are trying to get divorced. They are working out the custody issues, the division of property, the spousal support.

But the family court judge assigned to his case, Douglas Gerlach, is not certain he has jurisdiction. Arizona marriages, after all, are by law between a man and a woman. Same-sex marriage is forbidden, and the state of Arizona will not recognize same-sex marriages performed in other states.

Beatie was legally allowed to change his birth certificate and driver's license to say he is a man. He was legally allowed to get married as a man. Gerlach gets all that, but as he wrote into the court record, "In other words, it appears that, by any reasonable standard, (Beatie) was the biological mother of those children at the times they were born. As such, parties' marriage was between a female and a person capable of giving birth, who later did so."

"I'm clearly a man: socially, legally, psychologically, physically — the whole ball of wax," Beatie told The Arizona Republic.

Gerlach is not so sure. He asked the Arizona Attorney General's Office for an opinion as to whether this was a valid marriage or a same-sex, and consequently invalid marriage. The attorney general declined the invitation to weigh in.

"I was surprised at the remarkable indifference I received," Gerlach said in open court Friday. So it is up to him to make a decision that, however he rules, is likely to be taken to the Court of Appeals. Gerlach said he would reach a decision by early February.

"It has to do with a person's reproductive rights," Beatie said in the courthouse hallway, with his new girlfriend clinging to his arm.

According to his website, Beatie, 38, is a "World Public Speaker, Author, Educator, Advocate, Producer, Pop Culture Icon: The Pregnant Man, Visionary & Family Man."

He is a man of average height with short hair and a trim beard and calm, dark eyes of Hawaiian heritage. He speaks in a soft tenor voice. To all appearances, he is a man.

But he was born a woman and named Tracy Lehuanani Lagondino in 1974 in Oahu, Hawaii. Judging from photos, Tracy was a beauty, and Beatie's biography says she participated in beauty pageants and worked as a model. Nonetheless, according to the court record, Tracy identified with male role models and preferred male activities.

In 1997, after consulting with doctors, Tracy began undergoing testosterone therapy, and after psychological testing, was "determined to have male gender identification." The first of the surgeries was performed in 2002, when Tracy had a double mastectomy, nipple resizing, and recontouring of the chest. That was enough in the eyes of the law for Tracy's birth certificate and driver's license to be changed, and six months later, Tracy Legondino became Thomas Trace Beatie.

Arizona law, incidentally, is similar to Hawaiian law. A person who has undergone a sex change operation need only file a written request for an amended birth certificate and present a statement from a physician. So according to Arizona state statutes, Beatie is a man, and as such can enter into marriage with a woman.

He did. He first met Nancy Gillespie in 1991, according to the court record, and became romantically involved in 1998, after Beatie had begun testosterone therapy. They married in February 2003.

Nancy, who is 12 years older than Thomas, could not have children, so Thomas became the logical mother. When news leaked out, Thomas proudly stepped into the limelight as "The Pregnant Man," appearing on the Oprah, Larry King, Barbara Walters, and the David Letterman shows, among others. He was in People magazine, satirized on "Saturday Night Live" and "South Park." He wrote a book. And he went out on the motivational speaker circuit to champion transgender rights.

Thomas and Nancy had moved to Arizona by the time the marriage fell apart. The divorce has all the usual unpleasant aspects, such as drug court and orders of protection and custody battles.

"It's a normal divorce," said Michael Clancy, who represents Beatie. Nancy's lawyer, David Higgins, agrees. They were ready to enter into a dissolution of marriage when Gerlach contested it in his order of June 26. He asked both sides to file briefs telling him why he has jurisdiction over the case.

In the Friday hearing, Gerlach made it clear that he had scoured legal literature on the topic, and had not come to a decision. The surgeon who performed the first of Beatie's sex-change operations testified via telephone, implying that gender is more psychological than chromosomal. (Beatie has since had a second surgery to redirect his urethra through a reconstructed phallus, among other things, so that he could stand up to urinate and act "as a role model for his two young sons," as he wrote on his website.)

Gerlach was still not ready to issue a ruling. Trial court judges are always careful with cases of first impression, that is, where there is no legal precedent. And the rulings made by trial judges do not become law; that is the province of the appellate courts.

Gerlach told both sides that even without a divorce, he could go ahead with division of property and child custody under authority of common law. The Beaties want legitimacy in their divorce, for their own sake and for their children.

"The bottom line is, we're husband and wife," Nancy said, "and we want to get a divorce."