The continued possibility of federally sanctioned same-sex marriages might surprise those who believe that the Defense of Marriage Act (DOMA) recognizes only those marriages between men and women. In the case of transgender individuals, however, this debate is far from over. While some state courts recognize sex-reassignment surgeries as controlling in deciding whether to authorize a marriage, other state courts have held that an individual's sex, for marriage purposes, is immutably fixed at birth. Unfortunately, DOMA fails to reconcile these differing views by merely restricting marriage to one "man" and one "woman."
This failure to define man and woman is a fundamental flaw in DOMA's drafting, which results in unpredictable treatment for transgender individuals in the federal context-for example, in the case of immigration. This Comment therefore argues that the federal government should resolve DOMA's ambiguity by clarifying the Act's definition of man and woman. An appropriate definition must take into account current medical evidence suggesting that an individual's sex designation at birth is useful, but not dispositive, and that at least eight distinct factors contribute to notions of sexual identity. Lastly, this Comment asserts that immigration is an ideal forum to test the practicability of these factors, both because of the recent frequency of marriages involving transgender individuals in immigration cases, and because the United States Citizenship and Immigration Services (USCIS) is historically familiar with the use of balancing tests in its decisions.