Oregon Public Broadcasting

This week, same-sex couples in Oregon were supposed to have been able to officially register as domestic partners.

Anti-gay rights activists won a temporary injunction of the new law that would have granted the same rights as married couples to gay and lesbian couples within the state. However, their unions would not be recognized under federal law -- a key difference between domestic partnership and marriage.

Because of a legal loophole, a small number of same-sex couples have been able to marry under state and federal law for some time. Julie Sabatier has more.

Theresa Mitchell and Ani Haines got married six years ago.That was when Theresa still went by "Steve" and was biologically male.

At that time, they were one man and one woman, but they both knew that wouldn't last forever. Soon after they were married, Theresa Mitchell made the transition from male to female, making them one of the few married same-sex couples in Oregon.

Theresa Mitchell

Theresa Mitchell spoke with us in her Portland home.

Theresa Mitchell: "I have been taking hormones for years so my face has changed, my fat's been shifting and I've grown breasts. I suspect that there are some who view me as a man who's dressing as a woman, who's living with a woman and I know that there are a lot of people who get it, but I haven't heard anyone refer to me as a lesbian. If people ask me respectfully, then I'll just tell them I'm a different sort of person."

She stressed that the marriage contract meant little more to them than the legal protections it brought with it. In fact, both of them say they can't even remember the exact date they tied the knot.

Six years before that, they had expressed their commitment through a pagan hand-fasting ceremony -- a date they do celebrate. Ani Haines says they decided to get married for one reason.

Ani Haines: "Suddenly, seeing that Theresa's gender was about to be legally changed, we saw this as a big sort of loophole and we were kind of toying with the idea of, could it be that two weeks from now, you're legally a woman and we're legally married? Hmm! You know, it was pretty intriguing."

In 2004, Oregonians passed Measure 36, a constitutional provision that legally defines marriage as a union of one man and one woman. But there is currently no Oregon case law that addresses a marriage like Haines and Mitchell's, and it's unclear just how legal their marriage actually is.

Mark Johnson practices family law in Portland. He says couples like Ani Haines and Theresa Mitchell are in a kind of legal limbo.

Mark Johnson: "For a transgender couple that got married when they were of opposite sex and then one of them transitioned and now presenting themselves as Oregon residents and asking to have that marriage recognized, I think that's very problematic after Measure 36."

Johnson says it's possible that Haines and Mitchell's marriage could be invalidated if it were challenged in court over issues of inheritance, adoption or other benefits. But a judge could also decide in their favor.

Alec Esquivel: "I'm not sure why marriage is defined by gender at all at this point."

That's Alec Esquivel. He began his  female to male transition in 2001.

Alec Esquivel: "Why do we have these gender boxes that everybody has to fit into? I'm not sure I understand how well it is serving us."

At 32, Esquivel legally changed his gender, a process that's a lot like a legal name change. He changed his birth certificate to reflect his gender as male. It took a court order and a letter from the surgeon who performed his double mastectomy. Three years after this legal and physical change, Esquivel married Michele Pearce, a female from birth.

Alec Esquivel is a student at Willamette University College of Law. He's done some research on marriage laws.

Alec Esquivel: "They're a mess...I can legally change my gender in Oregon. I can legally marry in Oregon,but I don't think that Michele and I could move to Texas. Texas law would recognize my gender as the gender that I was born with, which would be female. So in Oregon, it works, but in Texas it wouldn't work. In Texas, I could only marry another male, which is then complicated because the public would then see a same-sex marriage."

Like any of the same-sex couples who may get to register as domestic partners under Oregon's new law, Esquivel and Pearce put their union in jeopardy if they leave the state.

Family law attorney Mark Johnson says their marriage is less likely to be contested in Oregon than the one between Haines and Mitchell.

Mark Johnson: "Measure 36 doesn't speak to what is a sex change, doesn't speak to what is gender and I think that a couple that is getting married after one party has transitioned, as long as one of them is female on their birth certificate and the other is male on their birth certificate, I don't think any further questions are going to be asked."

Trans couples continue to wrestle with the vagaries of marriage law, even as same-sex couples "prepare to" navigate the new legal landscape of domestic partnerships. Ani Haines for one is hoping for a more inclusive future.

Ani Haines: "We go to the grocery store and we do our laundry and we go to work and we raise kids and that's what we do. We're normal. You know, whatever normal is, it encompasses what we do and people need to get used to that idea."

But with Oregon's new domestic partnership law now on hold, the future Ani Haines and others dream of seems even further away...