Social Security gender change and marriage

[arbon]

I have a question.

If you were married to a woman prior to transition and remain married after, what happens if you change your gender marker with Social Security? Does it invalidate your marriage for tax and other legal purposes within a marriage? or do they just kind of ignore it?

[Rianna Humble]

The answer to this question is going to be specific to a jurisdiction. It would be best if responses were from people who know the legal situation where Arbon resides.

Rianna Humble
Moderator, transsexual Forums

[RADER]

I would check it out with the IRS; However, your last name did not change, and there was no
legal divorce, So I would think all is the same.
When you retire, who ever was the largest wage earner will pass on to the next spouse their
SS retirement package. But you have a long way for that to happen.
Rader

[PaulaQ]

I bet it does invalidate your legal marriage status with the IRS because of the DOMA. Hopefully the supreme court does the right thing. Your marriage's legal status within your state will be based on their laws. You'll need to check with attorneys, most likely.

[arbon]

The answer to this question is going to be specific to a jurisdiction.

Mostly I am asking in regards to the US Federal government . At the state level in Idaho it seems to be a very gray area but don't think changing gender with SSA would affect how the state sees it

[kellycan27]

At the federal level... Nothing will change. They will allow your sex change, but you're still "Joe" as far as federal law and federal income tax.
They go by your social ... Not your name. Your tax status will remain the same as it was before you transitioned.
State laws will vary depending on your state of residence.
In my case I married after transition .. I am still steven as far as the Feds go so they don't recognize my marriage as valid. I have to file my taxes separately from my husband. Joint returns are not allowed for same sex couples ( that's how the fed sees us).
Since the fed does not recognize your same sex marriage as far as federal law and income taxes.. You are not in violation of DOMA... Should one partner decide to transition.

[arbon]

Thanks Kelly thats what I wanted to know.

[Stephanie47]

Anyone having serious issues concerning their status; marital, economic or otherwise, should not rely on this site for legal advice. There are two separate issues arising under DOMA.

1. For any federal benefit the US government does not recognize same sex marriages;

and

2. States "shall not be required" to recognize same sex marriages that arise in states that permit it.

The current Supreme Court cases are under review under the Fourteenth Amendment (Equal Protection Clause) and Article 4, Section 1 which deals with states recognizing the laws of other states. Note: DOMA states states "shall not be required" which does not prohibit them from recognizing legal same sex marriages arising in other states.

It will be interesting to see how this all plays out when the Court renders its decision in the fall.

[kellycan27]

The answer to this question is going to be specific to a jurisdiction. It would be best if responses were from people who know the legal situation where Arbon resides.

Rianna Humble
Moderator, transsexual Forums


Nope! Federal law and income tax are uniform. It's the state level where taxes can be a real nightmare for same sex married couples. Arbon's marriage would still be within the definition of DOMA and her state and federal tax filing status would not change after transition.

[arbon]

Another question - is there any benefit in changing your gender with with social security (not talking about the name, but the gender)?

[Sally24]

I am not in the legal profession but these are separate issues. In the states I am familiar with, changing your sex does not invalidate your marriage, regardless of no same sex marriage laws. That marriage was initiated when you were a man and a woman and is grandfathered in. Now, if you get divorced and want to remarry, then you would be prevented in cases where there is a same sex marriage ban. Thankfully, Maine has changed their laws as has most of New England so that is not a problem here.

The National Center for Transgender Equality has provided this fact sheet for trans people."Under state marriage laws, the validity of a marriage is determined at the time of marriage. If you were legally an opposite-sex couple when you married, your marital status cannot be invalidated by subsequent events. For the same reason, the federal Defense of Marriage Act does not prohibit federal recognition of married couples in this situation. You should be able to file jointly as a married couple, and are not required to count a spouse’s employer-provided health benefits as taxable income."

http://transequality.org/Resources/IRS_Factsheet_2012.pdf

[kellycan27]

Another question - is there any benefit in changing your gender with with social security (not talking about the name, but the gender)?

NO.. As it stands now your gender change is of no consequence to the SSA. As far as they are concerned... nothing has or will change. The only benefit would be personal.

[Rianna Humble]

The answer to this question is going to be specific to a jurisdiction. It would be best if responses were from people who know the legal situation where Arbon resides.

Nope! Federal law and income tax are uniform.

No they are not. They do not apply at all where I live, nor where members such as Noeleena or Melodie Moore live either.

[kellycan27]

Granted, but the OP is asking in regards to "US Federal" law as clearly stated in post #5.

[mikiSJ]

As long as DOMA is the law:


Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

Why even tell SSA that you have changed sex? Why tell anyone at he Federal level? The feds don't issue birth certificates (usually) and if you change jobs, filling out the W-4 doesn't require a statement regarding sex. The only reason I can see changing your SSA status is for you own SELF identity - and your SS card doesn't identify your sex.

[Rianna Humble]

Granted, but the OP is asking in regards to "US Federal" law as clearly stated in post #5.

So why were you criticising post number 2.

At least when I grew up, 2 came before 5

[kellycan27]

I wasn't critisizing post two... I was correcting. As a matter of fact I agree with the part that states that the most helpful answers would be posted by people who live where the OP lives... In this case the US. I was assuming. ( appearenty correctly as evidenced by posts 5 and 7) that she was referring to United States of America "Federal" tax law. At any rate .. By now it should be abundantly clear that the OP was in fact talking about US federal law... to persist arguing with you would be pointless.

[arbon]

Peace :hugs:


and thanks for the info Kelly, I read on Jordie's thread how she changed her gender with SSA and of course I immediately think its something I should do!

But it is pretty clear there is no real need for me to do that.

[kellycan27]

It would only be symbolic, but it's gratifying to see your female name on your social security card. Look at it this way... There's no reason not to do it if you want to.

[Angela Campbell]

I was told that it is not too hard to change the SS account to show your new name (once there is a legal name change) but they did not allow a change in gender. It used to cause a problem as they would send inquiries out because the info sent by the employer would say one gender and they would have info on the other gender and problems started. I hear it is now not the case, they still do not change the gender but they do not act on it when other info is sent in.

That said it could have changed recently.

[arbon]

I have my female name on it. :) I just did not change the gender with them.

[kellycan27]

The Fed does not recognize your gender change, but will allow for it. You are right in that they will let it slide. It's your tax ID (social security number) that they go by and is really all that they are interested in.

[Nicole Erin]

What kelly is saying is that to social security, you are just a number.

As far as invalidating a marriage, they are not likely to make that big a stink about it.

You ever try to d anything thru the GOVT? So many headaches. You think THEY are gonna set aside time to invalidate your marriage? Hell no, that would mean they would have to work. You know that ain't happenin.

[kellycan27]

At the federal level... Invalidating a marriage because one party transitioned... Would mean that in order to do that they would have to recognize the gender change to begin with and that would open up a tremendous can of worms and put an end to DOMA.

[Michelle.M]

I was told that it is not too hard to change the SS account to show your new name (once there is a legal name change) but they did not allow a change in gender.

I wonder why anyone would say that. When I changed my name on my SSA account I showed them my name change order (all that was needed for a name change) and some sort of doctor's letter stating that you have had appropriate, irreversible medical procedures to undergo a gender change. HRT qualifies; a post-GRS affidavit does as well.


It used to cause a problem as they would send inquiries out because the info sent by the employer would say one gender and they would have info on the other gender and problems started.

That's correct.


. . . they still do not change the gender

They do.


At the federal level... Invalidating a marriage because one party transitioned... Would mean that in order to do that they would have to recognize the gender change to begin with

I don't know if it's accurate to say that the feds don't recognize gender change, but more like they just don't have a dog in the fight. Name change, gender change, birth and death records, marriages - these are all vital statistics and are matters of the individual states, not the federal government. Validating or invalidating a marriage would also be a state issue.


. . . and that would open up a tremendous can of worms and put an end to DOMA.

Exactly why the Supreme Court is weighing in on DOMA now. Critics have correctly argued that since states have this authority the feds have no business in marriage issues.

[kellycan27]

Semantics.............. DOMA is the Fed's " dog in the fight". They may say... Okay you can call yourself a woman, but just try and apply for any federally funded programs designed for women. Try getting an SBA loan as a woman. You can't file a joint tax return with your husband nor can you take advantage of the married deduction. The list goes on. Why? Because the fed does not recognize sex change as valid. Simply saying it does nothing.

[Stephanie47]

Again, I would refer anyone to an attorney in the state in which they reside. For Washingtonians there is an excellent pamphlet by the ACLU of Washington which describes the procedures for changing name and gender identifiers on state and federal documents. The short answer is the starting point is going to be the state of jurisdiction. The pamphlet also outlines some of the pitfall for not changing all documents. As an example, it indicates the State Department will change the sex on a passport, but, it usually will rubber stamp over the original gender rather than issuing a new passport. That would really be interesting in trying to get into such enlightened places on earth such as Saudi Arabia and Iran.

As to others states, you need to consult an attorney practicing in that state. In Washington State, which allows same sex marriage, these changes are fairly easy.

[Michelle.M]

Try getting an SBA loan as a woman. You can't file a joint tax return with your husband nor can you take advantage of the married deduction.

Well, you are married and I'm not, so I defer to you on this.


Again, I would refer anyone to an attorney in the state in which they reside.

While your advice that people seek competent legal advice in their own jurisdictions is valid, the question has to do with Social Security. This is not a state issue, and the SSA rules are uniform nationwide.


As an example, it indicates the State Department will change the sex on a passport, but, it usually will rubber stamp over the original gender rather than issuing a new passport.

Nonsense. How old is this pamphlet? I have a new passport, good for 10 years, with all of the correct information including gender marker.

[kellycan27]

I am also a licensed CPA and well versed in federal tax law. I was married in New Hampshire which is a same sex marriage state, but still bound by federal law. The Fed does not recognize my " legal" state marriage as a valid marriage between one man and one woman. They suck! LOL

[Michelle.M]

One more reason (as if I needed one) why I defer to you on the issue of federal recognition of gender change.

But while we're on the subject, do you think the repeal of DOMA (and I am certain this is coming soon) will change that?

[kellycan27]

Hopefully it will change some things especially in the way we pay our Federal taxes. Once the Fed gives us our props I don't think it will be long before at least some of the states follow suit. I am not so sure that the demise of DOMA will be all that helpful in securing federal aid program benefits, but it might take us a step closer. We still won't be considered women with all the bells and whistles. The repeal of DOMA would be a step in the right direction and would allow us to move to the next step in the fight.

[Nicole Erin]

I am also a licensed CPA and well versed in federal tax law. I was married in New Hampshire which is a same sex marriage state, but still bound by federal law. The Fed does not recognize my " legal" state marriage as a valid marriage between one man and one woman. They suck! LOL

When it comes to the feds, if something is to THEIR benefit, they are all over it. If it isn't then suddenly they have a problem.

[arbon]

Again, I would refer anyone to an attorney in the state in which they reside. .

Around here I doubt any of them know anything about any of this.

But other trans women who have gone through it and knew how to do this and that were great. For the most part none of it was that hard to figure out. On this thread I got the answers I needed, a lot cheaper then seeing some lawyer.

[Michelle.M]

It really is this simple:

Name (http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/315/~/change-a-name-on-a-social-security-card)

Gender (http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/1667/~/changing-gender-on-social-security's-records)

As for the letter stating that surgery was completed, they accepted a letter from my doctor (I was pre-op and had only done HRT), that was basically this:

Physician’s Letterhead
(With Physician’s Name, Address and Telephone Number and medical license/certificate number, the issuing state of the license/certificate and the doctor’s DEA registration number)

Today’s Date

To whom it may concern:

I, Dr. I.M. Doctor, M.D., a practicing physician, certify that [your FULL girl name] with the DOB January 1, 1901 and SSN 123-45-6789 and [your state] Driver’s License number xxxxxxxx is a transsexual patient of mine currently under my treatment for the neuroendocrinological condition associated with transsexualism. She has received the proper clinical and irreversible medical treatment for transition to her new female gender, and I currently continue to serve as her physician overseeing her care and treatment.

I declare under penalty of perjury under the laws of the United States that the forgoing is true and correct.

//Signature//
I.M Doctor, M.D.

[JennX]

At the federal level... Nothing will change. They will allow your sex change, but you're still "Joe" as far as federal law and federal income tax.
They go by your social ... Not your name. Your tax status will remain the same as it was before you transitioned.
State laws will vary depending on your state of residence.
In my case I married after transition .. I am still steven as far as the Feds go so they don't recognize my marriage as valid. I have to file my taxes separately from my husband. Joint returns are not allowed for same sex couples ( that's how the fed sees us).
Since the fed does not recognize your same sex marriage as far as federal law and income taxes.. You are not in violation of DOMA... Should one partner decide to transition.

Just for clarification and my own edification... I'm post-op MTF btw... and...

Even though I have changed my name and gender with the SSA... and my name and gender on all my other legal docs... the SSA still has me listed as male somewhere in their system?

And if I do get married to another biological male... that would be considered a same sex marriage under current SSA guidelines?

What would happen if we file a joint return? Would it be denied?

[kellycan27]

Yes.. The SSA will still show you as male in the system.
Yes... If you marry another biological male it will be considered same sex.
Being in a same sex marriage you are not legally entitled to file a joint income tax return.
"If" the IRS catches you they will most certainly deny your return.
Ethically I can't advise you to do anything contrary to Federal law.

[Stephanie47]

You get what you paid for!


Around here I doubt any of them know anything about any of this.

But other trans women who have gone through it and knew how to do this and that were great. For the most part none of it was that hard to figure out. On this thread I got the answers I needed, a lot cheaper then seeing some lawyer.

[Michelle.M]

Yes.. The SSA will still show you as male in the system.

OK, now I have a question - my gender has been changed with SSA. Why would they still consider me to be male?


You get what you paid for!

Come on, now! The SSA gives specific instructions on their own website for accomplishing this. It's merely an administrative task, not a legal issue. Why are you so adamant about hiring an attorney to get some simple paperwork done?

Don't get me wrong. I'm all for hiring a lawyer and not trying to do legal stuff on your own, but this is nothing more than filling out a form and attaching some supporting documents.

[Stephanie47]

Why? Because I am a retired federal bureaucrat with over thirty years of service administering tax law and reviewing related state law as appropriate to whatever issue I may have been charged with administering at the time.

I've read through all the posts and I have read misinformation and pure conjecture on some of the issues that have arisen here. Name change issues are fairly straight forward and are made without regard to any gender issues. Transgender issues are complex and are dependent on state law. I went to a transgender website which has the specific state and provincial (Canada) law and requirements to change gender identification. Each state has their own specific procedures and outcome. I noticed only three states require surgery for a change in the gender identifier. However, different states will issue different differing changed birth certificates.

It appears to be relatively easy to approach federal issues. The Social Security Administration and State Department have posted their specific procedures for changing gender identifiers, both for customer usage and internal processing. My concern is not filing out a bureaucratic form. That's easy. It's the process before getting to the simple stuff.

My caution based on thirty plus years of experience is the fact if you do something wrong, sometimes it may be difficult or impossible to make correction.

As to the comment that was made concerning attorneys in a geographic may not have knowledge, well, you do not go to a divorce attorney for corporate tax law. You seek out the advice from someone skilled in an issue.




OK, now I have a question - my gender has been changed with SSA. Why would they still consider me to be male?



Come on, now! The SSA gives specific instructions on their own website for accomplishing this. It's merely an administrative task, not a legal issue. Why are you so adamant about hiring an attorney to get some simple paperwork done?

Don't get me wrong. I'm all for hiring a lawyer and not trying to do legal stuff on your own, but this is nothing more than filling out a form and attaching some supporting documents.

My comment is directed to the serious issues that arise.

There has been a lot of chatter on this thread concerning DOMA. On its literal reading, DOMA has absolutely nothing to do with transgender issues. I'm sure Congress did not consider transgender issues when it passed the law. Doing some quick research, it appears people changing their gender marker under state and federal law have easier time than gays and lesbians. It's a medical issue rather than a social issue.

There are thirty seven states that have amended their constitutions or passed laws prohibiting same sex marriages. I found none that prohibit changing the gender identifier. As to how a male changing the gender identifier to female plays out in marital law, I would not venture a guess.

My concern is over the failure to adequately research the consequences of legally changing the gender identifier and how it plays out in all aspects of one's life.

[kellycan27]

Michelle
The simple answer is that the SSA goes by the social security number that you were assigned. They will allow for your gender change but your true birth gender will remain in your file. For the purposes of taxation and social security benefits you will always be considered by your birth gender.
As far as state law I agree with Stephanie47 in that it would be prudent to seek the advice of an attorney as state law varies from state to state as do tax laws. State tax laws for same sex married couples can be a nightmare!

[arbon]

As to the comment that was made concerning attorneys in a geographic may not have knowledge, well, you do not go to a divorce attorney for corporate tax law. You seek out the advice from someone skilled in an issue.



Good grief! I don't need to see a freaking lawyer!!


It's the process before getting to the simple stuff.

What process???

I've already changed my name on everything and have been legally me for a year now.

Last month my gender marker was changed on my drivers license and I got a new 10 year passport with the correct gender marker.


My caution based on thirty plus years of experience is the fact if you do something wrong, sometimes it may be difficult or impossible to make correction.

Well there aren't exactly a lot of ways to do it. Either you change your name and your gender or you don't. What else is there to screw up?


You get what you paid for!

Yes, I did! Without an expensive lawyer which would have been a waste of money!!

My question on this thread was pretty simple and straight forward if anyone knew how changing your gender marker with SSA might affect how the SSA and IRS consider your marriage. I got the answer without spending a wad of cash with a lawyer! Thats as far as I want to go with it already.

[JennX]

Michelle
The simple answer is that the SSA goes by the social security number that you were assigned. They will allow for your gender change but your true birth gender will remain in your file. For the purposes of taxation and social security benefits you will always be considered by your birth gender.
As far as state law I agree with Stephanie47 in that it would be prudent to seek the advice of an attorney as state law varies from state to state as do tax laws. State tax laws for same sex married couples can be a nightmare!

What if you received a new SS#? Would the new SS# still link back to your original SS# and birth gender?

[Stephanie47]

Arbon, I'm not sure you got the correct advice from Kelly. No legal citations were given as relates to the issues-just conjecture. I had nothing to do for awhile on Sunday morning so I bounced around the Internet. I believe you're in Idaho. From a posting concerning various issues, unless the discussion was wrong, it states Idaho is one of three states (TN & OH) that do NOT change the birth certificate identifier even after SRS. I don't know if that is true. Other states have a procedure for changing the gender identifier on a birth certificate. From the discussions I read the changing of the gender identifier on the birth certificate does allow a MtF post SRS to marry a male. And, be allowed to file a joint income tax return. Is it true? I don't know, but, the discussion is contrary to Kelly's analysis. I don't have any skin in the game. If I did I would have to research the issue thoroughly. The discussion only has one state (Texas) which invalidated a marriage between a MtF post SRS and a male.

Nowhere in this discussion have I seen any legal brief or citations as to whether a post SRS male can marry another male for federal purposes. Just conjecture. I think that's one of the questions that has arisen on this thread.

If anyone has skin in the game. you may want to consult an attorney.

[kellycan27]

First of all they are not going to issue you a "new" social security number. Your gender change is of no consequence to them.
To them you're still the same as you always were... Just a number.

Filing Federal Tax Returns
The federal government does not recognize same-sex marriage, so married gay and lesbian couples must file as single people on their federal tax returns. Some experts recommend noting on your tax return that you are, in fact, married, but filed as single due to federal tax law. This might help in other contexts -- like applying for a joint mortgage -- where you want to show that you represent yourself as married.

This information is pretty easy to come by.. Just google the federal tax code and in the search box type in same sex marriage.


THE DEFENSE OF MARRIAGE ACT (DOMA)

According to Section 3 of the federal Defense of Marriage Act (DOMA), the federal government only respects marriages between a man and a woman. This means that even if a same-sex couple's marriage is recognized by their home state, it is not recognized for the purposes of accessing marriage benefits in federal law. So, for example, a gay married couple in Massachusetts can take advantage of state laws conferring the benefits of marriage, but not any of the benefits provided by federal law.

"There has been a lot of chatter on this thread concerning DOMA. On its literal reading, DOMA has absolutely nothing to do with transgender issues. I'm sure Congress did not consider transgender issues when it passed the law. Doing some quick research, it appears people changing their gender marker under state and federal law have easier time than gays and lesbians. It's a medical issue rather than a social issue."

For something that has nothing to to with TG issues how do you explain the fact that under DOMA our marriages are not recognized by the federal government and the fact that we cannot enjoy the same privileges afforded to cis couples in regards to taxation and federal benefits.... just to name a couple? We may have not been specifically targeted but we are certainly affected by the collateral damage it's caused.

If you went to see a lawyer would you take his word as a qualified professional or would you consider it too as conjecture until you saw the proof of what he was telling you in writing?


From the IRS website:


Q. Can same-sex partners who are legally married for state law purposes file federal tax returns using a married filing jointly or married filing separately status?

A. No. Same-sex partners may not file using a married filing separately or jointly filing status because federal law does not treat same-sex partners as married for federal tax purposes.

[JennX]

First of all they are not going to issue you a "new" social security number. Your gender change is of no consequence to them.
To them you're still the same as you always were... Just a number.

Filing Federal Tax Returns
The federal government does not recognize same-sex marriage, so married gay and lesbian couples must file as single people on their federal tax returns. Some experts recommend noting on your tax return that you are, in fact, married, but filed as single due to federal tax law. This might help in other contexts -- like applying for a joint mortgage -- where you want to show that you represent yourself as married.

This information is pretty easy to come by.. Just google the federal tax code and in the search box type in same sex marriage.

I know getting SRS does not come with a new SS#. But people do receive them. Not something that usually happens though. I get that.

Now the part you quoted from the IRS site, I also understand. But my understanding, takes it to mean gay and lesbian couples... two male or two female persons. Not a postop MTF who has changed all docs including a birth certificate married to a cis-male.

I'm surprised no one has challenged this yet openly with the IRS or SSA (for survivor benefits), because it seems that from everything I've gone thru, once you have changed everything you should be seen in all aspects of the law as a female... or more specifically, there should be no difference between a postop MTF and a cis-female... at least for all legal, tax, marital, matters. Now people can always try to claim otherwise in court after the fact. But there shouldn't be any exclusionary language or provisions as far as the law goes.

Same with DOMA. There is zero reference to or mention of trans people at all. Same-sex couples... yes. But I doubt any postop MTF married to a cis-male couple would choose to identify with that grouping.

This looks to be one big gray area with no clear definition one way or the other.

[kellycan27]

It is possible to get a new social security number under certain circumstances, but... Your new number will be linked to your old number in their records.

The reason that they don't mention transsexuals is because they do not recognize your sex change. You remain a biological male in the eyes of the gov't. I suppose that the prevailing logic is that if one biological male marries another biological male... They're gay. ( or lesbian in the case of a f2m marrying another female)

[JennX]

Well that sucks. :rasp:

Looks like someone needs to educate the system.

[SilkenPrincess]

Last year, when I changed my name, I visited the Social Security office for a new card. I was told that they would change the gender on my records AFTER surgery. So, on their records I am still listed as male atm.
Steph

[Ana5551]

I am currently female to the IRS, Social Security, and Indiana... and still legally married. Rule of thumb i for a sex change in a marriage is that in order for it to become invalid and lose all of the married benefits, either me or my spouse would have to contest in court or divorce. I could not find a single case in which the state or federal government invalidated a legal marriage due to sex change. There might be one out there, but I could not find it. We also filed our taxes jointly and filed jointly in federal bankruptcy court due to our sons medical bills. I believe as long as you can prove it was legal, you have nothing to worry about.