Queerty recently reported that Buck Angel – an award winning transmale adult-film star – is seeking spousal support from his estranged wife, Elayne. The couple married in 2003 in Louisiana and are now either divorced or divorcing.
In her filed response to Buck's claim, Elayne argued that he is not owed spousal support because Louisiana does not recognize same sex marriage. Her claim seeks to exploit a loophole where the state of Louisiana does not recognize a sex change unless the person has undergone gender reassignment surgery. Buck is famous for being openly proud of his decision to not do the surgery. Using this fact, Elayne says that they were never legally wed in the first place as he is female in the eyes of the state.
Whether her arguments on these technicalities will hold water in a Louisiana court remains to be seen. However, such arguments would not preclude Buck's claims for spousal support if this scenario occurred in Ontario.
In Canada, the Civil Marriage Act recognizes marriage as a union between two persons regardless of their sex or gender. Whether or not Buck has male genital is irrelevant, the absence of a phallic appendage is not a legal ground to invalidate the marriage with regards to his gender identity. Accordingly, he would be entitled to claim spousal support under section 15.2 of the Divorce Act if he can demonstrate a need for support or a reason justifying compensation.
If, for some reason, the marriage is legally void, Buck could still claim spousal support in one of two ways under the Family Law Act. He could rely on FLA s. 1(1) and claim that because he married in good faith he should be allowed to assert his right to spousal support under the Act as if the marriage was valid.
Alternatively, since the marriage lasted for at least ten years, it is likely that Buck and Elayne cohabited continuously for at least a three year period. If this is the case, Buck could be entitled to support as a common-law spouse under sections 29 and 30 of the FLA.
Regardless of which avenue he chose to pursue an FLA support claim, Buck would still be expected to demonstrate a need for support in order to establish his entitlement.
So long as Buck can prove that support is appropriate, what he has or does not have in his pants is not a concern of the courts in spousal support matters. Canadian family law is continuously adapting to recognize and accommodate changing societal understandings of gender identity and sexual orientation. Transgendered individuals are afforded the same rights as cisgendered people in all matters of family law. The exploitation of legal loopholes to discriminate or exclude a person from legislated entitlements is not an effective (or well received) legal strategy in any Ontario family court.