The supposed “immutability” of biological gender trumped Florida's ban on same-sex marriage as a judge ruled that a divorced man should continue paying alimony to his ex-wife even though she had a sex change.

In what may be only the second case of its kind, Lawrence Roach petitioned for his $1,250 a month alimony payment to be terminated because his ex-wife's surgery constituted a “substantial change in circumstances.” After the couple's divorce, Julia Roach transitioned to a man who calls himself Julio Roberto Silverwolf.

Some courts around the country have moved toward accepting the idea that gender identity is not determined by the biological sex at birth. But Pinellas County Circuit Court Judge Jack R. St. Arnold stuck to the traditional interpretation of gender in denying Roach's petition.

“Because Florida does not recognize gender reassignment surgery as effective to alter an individual's gender, this Court cannot find that the Respondent [Silverwolf] is now a male,” he wrote in his order. “Accordingly, there has not been a substantial, permanent, involuntary change in circumstances sufficient to support a termination of alimony.”

The decision is somewhat ironic since Silverwolf is represented by Lambda Legal, a gay rights organization which, on behalf of other transsexuals, has argued that biology is not gender-determinative.

In 2004, the Ohio 2nd District Court of Appeals said a sex-change operation “provides no basis to revisit the spousal-support provisions” of a divorce settlement. But Moore v. Moore, 158 Ohio App.3d 489, did not address issues of same-sex marriage and gender identity.

St. Arnold followed the precedent of Kantaras v. Kantaras, 884 So.2d 155 (2004), in which the Florida 2nd District Court of Appeal found that a postoperative female-to-male transsexual person could not legally marry a female.

“Despite the surgery and the fact that the Respondent holds herself out to be a male, Florida recognizes the immutable female traits determined at birth,” St. Arnold wrote.

The judge also quickly disposed of Lawrence Roach's argument that his ex-wife's surgery is the legal equivalent of death:

This is illogical in that there is no physical evidence that the Respondent is in fact dead.

By Matthew Heller
3/29/07