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Abstract

Part I describes the federal immigration benefits available to spouses of most U.S. citizens and presents the historical and contemporary obstacles that prohibit these benefits from being extended to gays and lesbians. It then addresses DOMA's failure to define "opposite sex," and hence DOMA's failure to indicate whether post-operative transsexuals, or their partners, should be given "spousal status" under current U.S. immigration law. Part II examines traditional and modern notions of sex. It traces state legal approaches to transsexual marriage and ultimately disentangles the formalistic rhetoric that obfuscates the reasoning in those cases. In particular, Part II focuses on a 2002 Kansas case that attempts to make sense of the conflicting positions states have taken with respect to transsexual marriage. That case draws a misleading distinction between sex determination "as a matter of law," and sex determination "as a matter of fact," and hence adds to, rather than detracts from, the confusion. Part II demonstrates that sex determination in the absence of a legislative standard is inherently a mixed question of law and fact." Courts addressing transsexuals must establish sex-determination standards to define as a matter of law what it means to be male or female, and then must determine as a matter of fact whether post-operative transsexuals are male or female under those standards. Part III addresses transsexual immigration via marriage. Looking behind the veil of formalism pierced in Part II. Part III takes a comparative law approach to transsexual sex determination. It examines the positions that federal courts, state courts and legislatures, foreign governments, and the European Court of Human Rights have taken on the underlying determinations that unify the transsexual marriage cases brought forth in Part II.

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