An Arizona judge has rejected a divorce petition from Thomas Beatie, a transgender father of three.
Maricopa County Family Court Judge Douglas Gerlach ruled on Friday that Arizona’s ban on same-sex marriages prevents Thomas Beatie’s nine-year marriage from being recognised as valid.
Judge Gerlach said he had no jurisdiction to approve a divorce because there was insufficient evidence that Mr Beatie was a man when he married Nancy Beatie in Hawaii.
The couple’s divorce plans stalled last summer when Judge Gerlach said he was unable to find legal authority defining a man as someone who can give birth.
Judge Gerlach said: “The decision here is not based on the conclusion that this case involves a same-sex marriage merely because one of the parties is a transsexual male, but instead, the decision is compelled by the fact that the parties failed to prove that (Thomas Beatie) was a transsexual male when they were issued their marriage license”.
He then went on to have two sons in 2009 and 2010 – Austin Alexander and Jensen James.
Before marrying his wife in Hawaii and starting a family, Mr Beatie transitioned from female to male in 2002.
However, he decided not to have his female reproductive organs removed, because his wife Nancy was infertile.
The National Centre for Lesbian Rights, which is not involved in Mr Beatie’s divorce case, has said courts have declared marriages involving a transgender person invalid in a handful of cases across the US, but that those cases had different factual and legal issues from Mr Beatie’s legal battle.