                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                           In re the Matter of:

                THOMAS T. BEATIE, Petitioner/Appellant,

                                    v.

                 NANCY J. BEATIE, Respondent/Appellee.

           ______________________________________________

                THOMAS T. BEATIE, Petitioner/Appellee,

                                    v.

                NANCY J. BEATIE, Respondent/Appellant.

                          No. 1 CA-CV 13-0209
                           FILED 08-13-2014


          Appeal from the Superior Court in Maricopa County
                         No. FC2012-051183
               The Honorable Douglas Gerlach, Judge

                    REVERSED AND REMANDED


                               COUNSEL

Cantor Law Group P.L.L.C., Phoenix
By David M. Cantor, Allyson Del Vecchio
Counsel for Petitioner/Appellant-Appellee

Law Office of David B. Higgins P.L.L.C., Phoenix
By David B. Higgins
Counsel for Respondent/Appellee-Appellant
Campbell Law Group, Chartered, Phoenix
By Claudia D. Work
Counsel for Amicus Curiae Transgender Law Center


                                OPINION

Judge Kenton D. Jones delivered the opinion of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
joined.


J O N E S, Judge:

¶1            Thomas and Nancy Beatie (Thomas and Nancy, respectively)
appeal the family court’s dismissal of their request for entry of a decree of
dissolution of their marriage.1 Thomas was born a female who underwent
medical procedures toward changing his sex, and subsequently obtained
an amended birth certificate from the State of Hawaii recognizing him as a
male. Thomas and Nancy then obtained a marriage license in Hawaii, and
were married in that state. At that time, Hawaii only recognized
marriages entered into between one man and one woman.

¶2             After relocating to Arizona, the Beaties petitioned for the
dissolution of their marriage. However, the family court determined it
lacked subject matter jurisdiction to act upon the Beaties’ request for a
divorce, concluding the Beaties had entered into a same-sex marriage
between two females, despite Thomas having obtained an amended birth
certificate from the State of Hawaii indicating his sex to be male, because
he had retained the ability to bear children, and in fact gave birth to three
children following his marriage to Nancy. Based upon the record and
Arizona Revised Statutes (A.R.S.) sections 25-101 and 36-337(A)(3),2 we
reverse the family court’s dismissal of the Beaties’ petition to enter the



1      Thomas also appealed the family court’s orders concerning child
custody, child support, and property division; Nancy appealed the family
court’s failure to rule on her petition for spousal maintenance.

2     Absent material revisions after the relevant dates, we cite the
current version of the statutes and rules unless otherwise indicated.



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                          Opinion of the Court

decree of dissolution and remand for proceedings consistent with this
opinion.

                FACTS AND PROCEDURAL HISTORY

I.    Thomas’s Background and Gender Reassignment

¶3            Thomas was born in 1974, on the island of Oahu, Hawaii,
and given the birth name, Tracy Lehuanani Lagondino. Early on, and
continuing through his teenage years, Thomas believed his gender
identity to be male. After numerous discussions with his doctor, a general
practitioner, Thomas began a testosterone hormone therapy regimen and
discussed surgically altering his gender. From 1997 to 1999, Thomas
underwent testing to determine his true gender, and when those tests
indicated his true gender to be male, Thomas engaged in extensive
hormonal and psychological treatment to conform to his gender identity.

¶4           Based upon the recommendation of his general practitioner,
Thomas met with Dr. Michael Brownstein,3 a physician licensed in
California, who specialized in transgender-related surgeries.4 In 2002,
Thomas underwent surgery, performed by Dr. Brownstein, to create a
male-contoured and male-appearing chest, and which irreversibly altered
Thomas’s anatomy and appearance for the purpose of his gender change
from female to male.

II.   The Post-Reassignment Affidavit

¶5          With that, Dr. Brownstein completed an affidavit for
Thomas, averring:

      Psychological and medical testing . . . determine[d] this
      patient’s true gender . . . to be male. [Thomas] has
      undergone extensive hormonal and psychological treatment

3      In the only expert testimony considered by the family court
pertaining to the issue of subject matter jurisdiction, Dr. Brownstein
offered the uncontroverted opinion that the surgery he performed on
Thomas was medically necessary and sufficient to support his
redesignation as a male.

4     Dr. Brownstein, a plastic surgeon with thirty-five years of
experience in performing transgender-related surgeries, estimated he
performs 150 to 200 transgender-related surgeries a year.



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                           Opinion of the Court

       and has . . . undergone surgical procedures performed by
       me to irreversibly correct his anatomy and appearance. This
       should qualify [Thomas] to be legally considered male
       within the guidelines of the particular jurisdiction in which
       this individual seeks to legally change his gender status.

¶6            Shortly thereafter, using the affidavit, Thomas began the
process of changing his legal documents. In June 2002, Thomas changed
the legal gender status reflected upon his Hawaii driver’s license from
female to male and, in January 2003, amended the name on his Hawaii
driver’s license from Tracy to Thomas. By January 2003, Thomas also
lodged a Notice of Change of Name with the Office of the Lieutenant
General for the State of Hawaii and amended his birth certificate to reflect
his name as Thomas and his gender as male.

III.   Thomas and Nancy

¶7             Thomas and Nancy were married in Hawaii on February 5,
2003. At that time, the laws of the State of Hawaii allowed marriages
“only between a man and a woman.” Haw. Rev. Stat. (H.R.S.) § 572-1
(1997), amended by Hawaii Marriage Equality Act of 2013, § 3 (2nd Spec.
Sess. Act 1). When Thomas and Nancy applied for their marriage license,
the State of Hawaii required the applicants to appear in person before a
marriage license agent and provide proof of age in the form of a birth
certificate, valid I.D. or driver’s license.5 Thomas stated within an
affidavit that he presented the required photo identification, and that the
identification he provided reflected his gender as male. The Hawaii State
Registrar accepted the application and issued the Beaties a marriage
certificate on February 6, 2003.

¶8            As Nancy was unable to have children, the couple ultimately
agreed Thomas would be the child-bearer as his genital surgery was not
yet completed. Thomas eventually gave birth to three children in Oregon
between 2008 and 2010. As regards Thomas’s continued ability to bear
children, Dr. Brownstein testified child-bearing by a transgendered male


5      In his Memorandum in Support of Subject-Matter Jurisdiction,
Thomas stated: “In order to obtain the marriage license, [I] was required
to furnish photo identification which reflected [my] gender identity.” The
record does not provide documentation of any other requirements for
obtaining a marriage license in the state of Hawaii at the time the Beaties
married in 2003.



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                           Opinion of the Court

does not revoke his transgendered status. Nancy legally adopted the
children, and the children’s birth certificates reflect Nancy as their mother
and Thomas as their father. In or around 2010, the Beaties relocated from
Oregon to Arizona with their children and resided in Arizona as husband
and wife, even filing joint Arizona tax returns.

IV.   The Beaties’ Filing of their Petition for Dissolution of Marriage

¶9            On March 8, 2012, Thomas filed a petition for legal
separation of a non-covenant marriage with children. Following an
unopposed motion from Nancy, the legal separation action was converted
to an action for dissolution of their marriage.

¶10           On June 27, 2012, the family court, prompted by its duty to
independently determine whether it had subject matter jurisdiction to
enter a decree of dissolution, issued an order requesting the Beaties to
identify controlling and applicable legal authority establishing the validity
of their marriage. The family court explained its request by noting
Thomas was the biological birth mother of the three children, which
meant Thomas and Nancy’s marriage was between “a female [Nancy] and
a person capable of giving birth, who later did so [Thomas].” The family
court also stated it had been unable to locate any authority defining a
“man (or male) in terms that contemplate that person’s ability to give birth
to children,” and questioned whether the marriage between Thomas and
Nancy was a same-sex marriage.

V.    The Family Court’s Ruling on Subject Matter Jurisdiction

¶11           After briefing and oral argument, the family court found it
did not have subject matter jurisdiction as the Beaties had failed to show:
(1) a double mastectomy, without more, constitutes a “sex change
operation” under Arizona law; and (2) the word “man” in the Arizona
Constitution carries a meaning any different from its plain, ordinary
meaning, which excludes people capable of giving birth. It supported the
latter point by noting the Arizona legislature has repeatedly recognized
pregnancy as a uniquely female attribute.

¶12          In addition, the family court questioned the sufficiency of
Dr. Brownstein’s affidavit submitted by Thomas to the Hawaii
Department of Health in order to obtain his new birth certificate. The
court noted that the affidavit, unlike the “typical” affidavit issued by Dr.
Brownstein, indicated only that Dr. Brownstein performed “surgical
procedures” for Thomas, and further, that Thomas never disclosed to
Hawaii officials that he retained the ability to become pregnant. As the


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                            BEATIE v. BEATIE
                           Opinion of the Court

family court had indicated at the time it directed the additional pleading,
the court further found the marriage between Thomas and Nancy
appeared to be a same-sex marriage, as the marriage was between a
female (Nancy) “and a person born a female (Thomas), who at the time of
the wedding was capable of giving birth and later did so.”6 As the
Arizona Constitution does not recognize same-sex marriage,7 the family
court dismissed the Beaties’ petition for dissolution of marriage for lack of
subject matter jurisdiction.8

¶13          Nancy and Thomas timely appealed. We have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1).

                        STANDARD OF REVIEW

¶14           Subject matter jurisdiction is a question of law, which we
review de novo. In re Marriage of Crawford, 180 Ariz. 324, 326, 884 P.2d
210, 212 (App. 1994). We also review de novo constitutional issues and
matters involving statutory interpretation. McGovern v. McGovern, 201
Ariz. 172, 175, ¶ 6, 33 P.3d 506, 509 (App. 2001).




6      The family court further stated: “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 Petitioner
[Thomas] was a transsexual male when they were issued their marriage
license.”

7       A.R.S. § 25-112(A) provides: “Marriages valid by the laws of the
place where contracted are valid in this state, except marriages that are
void and prohibited by § 25-101.” Arizona’s statute on prohibited
marriages states, in pertinent part: “Marriage between persons of the same
sex is void and prohibited.” A.R.S. § 25-101(C).

8      In consideration of these issues, the family court received an
amicus brief from the Transgender Law Center, and invited the Office of
the Arizona Attorney General to submit an amicus brief on behalf of the
people of Arizona. The Office of the Arizona Attorney General declined
the invitation.



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                            BEATIE v. BEATIE
                           Opinion of the Court

                              DISCUSSION

¶15            The question before this Court is not whether the State of
Arizona allows same-sex marriage or divorce, but whether the laws of the
State of Arizona allow a marriage, lawfully entered into in another state,
between two persons the foreign state formally recognized at the time of
the marriage as male and female, to be dissolved. At the time of the
Beaties’ marriage in Hawaii, that state only allowed marriages between a
man and a woman, and Hawaii’s legislature, like Arizona’s, had
established statutory authority allowing persons who had undergone a
sex change operation to apply for and obtain an amended birth certificate
reflecting the appropriate gender.

¶16            Prior to marriage, Thomas complied with Hawaii’s statutory
requirements to amend the gender designation on his original birth
certificate from female to male.9 However, after the filing of a petition for
dissolution of that marriage in the State of Arizona, the family court ruled
it lacked subject matter jurisdiction to dissolve the marriage, finding the
married couple failed to provide sufficient evidence that their marriage
could be recognized under Article 30, Section 1, of the Arizona
Constitution, which states: “Only a union of one man and one woman
shall be valid or recognized as a marriage in this state.” As explained
below, we disagree with the family court.

¶17            Following the framework established by the family court, we
center our discussion on Thomas’s birth certificate. Accordingly, we
discuss the statutory authority underlying the authenticity of the
certificate, and the rights accompanying an amended gender designation.

A.    The Statutory Authority for Arizona’s Recognition of Thomas’s
      Amended Hawaii Birth Certificate

          1. The Requisites of Obtaining Amended Certificates of
             Birth in Hawaii

¶18          H.R.S. § 338-17.7 provides in relevant part:



9     While the immediate case involves a transgendered male and a
non-transgendered female, this Opinion would not be different in a
circumstance where a transgendered female and non-transgendered male
sought a Decree of Dissolution.



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                            Opinion of the Court

       (a) The department of health shall establish, in the following
           circumstances, a new certificate of birth for a person born
           in this State who already has a birth certificate filed with
           the department and who is referred below as the “birth
           registrant”:

       ....

       (4) Upon receipt of an affidavit of a physician that the
       physician has examined the birth registrant and has
       determined the following:

       ....

        (B) The birth registrant has had a sex change operation and
       the sex designation on the birth registrant’s birth certificate
       is no longer correct; provided the director of health may
       further investigate and require additional information that
       the director deems necessary.

¶19             When interpreting a statute, we first look to its language; if
the statute’s language is clear and unambiguous, we apply it without
employing other principles of statutory interpretation. Sheehan v. Flower,
217 Ariz. 39, 40-41, ¶ 10, 170 P.3d 288, 289-90 (App. 2007). Hawaii uses
that same principle of statutory interpretation. Behr v. Lewin, 852 P.2d 44,
60 (Haw. 1993). Unless otherwise defined, words in a statute are
construed according to their plain and ordinary meaning. U.S. Parking
Sys. v. City of Phx., 160 Ariz. 210, 212, 772 P.2d 33, 35 (App. 1989); A.R.S. §
1-213; see H.R.S. § 1-14. In accordance with Hawaii principles of statutory
interpretation, we will not read provisions into the statute that are not
articulated by its express language. See Williamson v. Haw. Paroling Auth.,
35 P.3d 210, 222 (Haw. 2001).

¶20            The clear and unambiguous language of the above-
referenced Hawaii statute requires only that an examining physician
provide an affidavit, and that the affidavit indicate “the birth registrant
has had a sex change operation and the sex designation on the birth
registrant’s birth certificate is no longer correct.”      H.R.S. § 338-
17.7(a)(4)(B). In accordance with H.R.S. § 338-17.7, Thomas provided the
State of Hawaii with an affidavit from Dr. Brownstein verifying he had
undergone a sex change operation, as well as extensive hormonal and
psychological treatment, and that the specific procedures and treatment
qualified Thomas to be “legally considered male.” Therefore, Thomas
complied with the statute.


                                      8
                             BEATIE v. BEATIE
                            Opinion of the Court

¶21            As addressed above, Thomas did not withhold his
transgender status from Hawaii authorities. Additionally, however,
under H.R.S. § 338-17.7(a)(4)(B), if Hawaii’s Director of Health had any
question about the nature or extent of the medical procedures Thomas had
undergone, he had authority to “further investigate and require additional
information” deemed necessary for the issuance of Thomas’s amended
birth certificate. Moreover, while the statutory language allows for
further investigation by the Director of the Hawaii Department of Health
if deemed appropriate, it does not expressly require any further detail or
quantum of proof, and it was not within the authority of the family court
to, sua sponte, expand the requisites of the Hawaii statute. Had the Hawaii
legislature intended to require an applicant to submit a physician’s
affidavit specifying the precise nature of the surgery performed, that
specific surgical procedures had, in fact, been completed, or that the birth
registrant was no longer capable of procreation, it could have done so.

¶22           Therefore, the possibility of Thomas giving birth to children
did not preclude him from legally amending his birth certificate under the
plain language of the Hawaii statute. Further, there is no apparent basis
in law or fact for the proposition that in the event Thomas gave birth after
having modified his gender designation, it would have abrogated his
“maleness,” as reflected upon the amended birth certificate.

¶23           In that regard, the Hawaii Director of Health illustrated his
conclusion that Thomas met the statutory requirements for his re-
designation as male pursuant to H.R.S. § 338-17.7 by accepting the
affidavit presented by Thomas without further inquiry. See Verdugo v.
Indus. Comm’n of Ariz., 108 Ariz. 44, 48, 492 P.2d 705, 709 (1972) (“This
court has adhered to the general rule of law that public officers are
presumed to have done their duty, and that acts of public officials are
presumed to be correct and legal in the absence of clear and convincing
evidence to the contrary.” (internal citations omitted)); see also Haley v.
Dep’t of Treasury, 977 F.2d 553, 558 (Fed. Cir. 1992) (“’[T]here is a
presumption that public officers perform their duties correctly, fairly, in
good faith, and in accordance with the law and governing regulations.’”)
(quoting Parsons v. United States, 670 F.2d 164, 166 (Ct. Cl. 1982)); Whitlock
v. Brueggemann, 682 F.3d 567, 586 (7th Cir. 2012) (“[C]ourts ‘presume that
public officials have properly discharged their official duties.’”) (quoting
Banks v. Dretke, 540 U.S. 668, 696 (2004)).




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                             BEATIE v. BEATIE
                            Opinion of the Court

        2.    The Requisites of Amending Birth               Certificates   of
              Transgendered Persons in Arizona

¶24            There being no basis upon which to legally challenge
Thomas’s amended Hawaii birth certificate, that same birth certificate
must be recognized by the State of Arizona, as Arizona itself permits the
amendment of birth certificates for transgendered persons. A.R.S. § 36-
337 states in relevant part:

       (A) The state registrar shall amend the birth certificate for a
       person born in this state when the state registrar receives
       any of the following:
       ....

       3. For a person who has undergone a sex change operation
       or has a chromosomal count that establishes the sex of the
       person as different than in the registered birth certificate:

       (a) A written request for an amended birth certificate from
       the person . . . .

       (b) A written statement by a physician that verifies the sex
       change operation or chromosomal count.

¶25            Unlike Hawaii, Arizona’s more liberal standard only
requires a “written statement” rather than an “affidavit” by a physician
verifying a sex change operation. A written statement is just that. An
affidavit, on the other hand, “is a signed, written statement, made under
oath before an officer authorized to administer an oath or affirmation in
which the affiant vouches that what is stated is true.” In re Wetzel, 143
Ariz. 35, 43, 691 P.2d 1063, 1071 (1984); see State v. Guthrie, 108 Ariz. 280,
283, 496 P.2d 580, 583 (1972) (finding an unsworn written statement failed
to meet the requirements of an affidavit). In addition, A.R.S. § 36-337
permits an amendment of gender designation based upon a sex change
operation or chromosomal count. However, consonant with H.R.S. § 338-
17.7, Arizona’s statute does not require specific surgical procedures be
undertaken or obligate the applicant to forego procreation.10 As such, the


10      Similar to our reading of H.R.S. § 338-17.7, we will not read into
A.R.S. § 36-337 a requirement not within the manifest intention of the
legislature as expressed by the statute itself – such as a prohibition against
giving birth as a prerequisite to gender redesignation. State Farm Mut.



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                            BEATIE v. BEATIE
                           Opinion of the Court

sworn affidavit Thomas presented to the Director of the Hawaii
Department of Health toward obtaining an amended birth certificate also
met the requisites of Arizona’s own statutory provision.

B.    Full Faith and Credit Has Been Extended To the Beaties’ Hawaii
      Marriage Through the Passage of Arizona Revised Statute § 25-
      112(A)

¶26           Arizona has enacted an explicit extension of the federal Full
Faith and Credit Clause to marriages entered into in other states, such as
the State of Hawaii in the immediate matter, through its passage of A.R.S.
§ 25-112(A). That statute provides that “[m]arriages valid by the law of
the place where contracted are valid in this state, except marriages that are
void and prohibited by § 25-101.” A.R.S. § 25-112(A). Thomas and Nancy
entered into marriage in Hawaii, which at the time restricted marriage to
only occurring between a man and a woman. Moreover, at the time
Thomas and Nancy married, Thomas possessed dispositive, state-issued
credentials reflecting his “male” status, and Nancy held similar
credentials that dispositively reflected her “female” status.           Their
marriage, therefore, was “valid by the law of the place where contracted,”
as reflected by the issuance of the marriage license by the State of Hawaii.
Consequently, Thomas and Nancy’s marriage is also valid in this state,
pursuant to § 25-112(A), as their marriage is between a man and a woman,
and the strictures of § 25-101 do not preclude the marriage. Specifically,
their marriage is not void by virtue of sections A or B of that statute, and,
in consideration of section C, it is not a “[m]arriage between persons of the
same sex,” as was determined by the State of Hawaii prior to the issuance
of the Beaties’ marriage license.

¶27         In interpreting and applying the nearly identical laws of
Arizona and Hawaii regarding the issuance of amended birth certificates
predicated upon transgendering, we are obligated to allow those who
obtain such certificates the rights attributable to the assertions of their


Auto. Ins. Co. v. White, 231 Ariz. 337, 341, ¶ 14, 295 P.3d 435, 439 (App.
2013) (quoting City of Tempe v. Fleming, 168 Ariz. 454, 457, 815 P.2d 1, 4
(App. 1991)). Moreover, the right to have children is a liberty interest
afforded special constitutional protection. Skinner v. Okla. ex rel.
Williamson, 316 U.S. 535, 541 (1942) (“We are dealing here with legislation
which involves one of the basic civil rights of man. Marriage and
procreation are fundamental to the very existence and survival of the
race.”).



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                               BEATIE v. BEATIE
                              Opinion of the Court

amended certificate — the same rights that would inure to one who had
been issued that certificate at birth. See Radtke v. Miscellaneous Drivers &
Helpers Union Local No. 638 Health, Welfare, Eye & Dental Fund, 867 F. Supp.
2d 1023, 1034 (D. Minn. 2012) (“The only logical reason to allow the sex
identified on a person’s original birth certificate to be amended is to
permit that person to actually use the amended certificate to establish his
or her legal sex for other purposes, such as obtaining a driver’s license,
passport, or marriage license.”); In re Ladrach, 32 Ohio Misc. 2d 6, 9-10, 513
N.E.2d 828, 831-32 (Ohio Prob. Ct. 1987) (although finding under Ohio
law, which did not allow transgender persons to amend their birth
certificates, that a marriage license could not be issued to a post-operative
female transsexual person and a male person, the probate court noted: “It
seems obvious to the court that if a state permits such a change of sex on
the birth certificate of a post-operative transsexual, either by statue or
administrative ruling, then a marriage license, if requested, must issue to
such a person provided all other statutory requirements are fulfilled.”).
To determine otherwise would run afoul of the equal protection clause of
the U.S. Constitution. See U.S. Const. amend. XIV, § 1 (“No State shall . . .
deny to any person within its jurisdiction the equal protection of the
laws.”).

¶28              As the Beaties’ Hawaii marriage was lawfully entered in
Hawaii and is not deemed void by Arizona law, the marriage is valid
within this state. Accordingly, the family court has subject matter
jurisdiction to enter a decree of dissolution, presuming all other
jurisdictional requirements are met.11

                                CONCLUSION

¶29           For the foregoing reasons, we find the family court has
subject matter jurisdiction to proceed with the Beaties’ petition for
dissolution of marriage and, ultimately, to enter a decree of dissolution,
and therefore reverse the family court’s dismissal of the Beaties’
dissolution petition. In this case, the family court also issued orders
regarding child custody, child support, and property division, which the
Beaties also appealed. See supra ¶ 1 n.1. Given the interrelated nature of
these issues with a marital dissolution, we remand the entirety of the
issues raised on appeal to the family court for further proceedings
consistent with this opinion.



11     See A.R.S. § 25-312.

                                     :gsh




                                       12
