NCTE thanks the Social Security Administration for issuing updated guidance that will simplify benefits applications for many transgender people and their spouses, and better ensure correct eligibility determinations.
Until now, all benefits applications involving couples with at least one transgender spouse required legal review by one of SSA’s chief regional attorneys, often adding significant delays. Without clear guidance on applicable law, many benefits applications also received incorrect denials and had to be appealed. With this new guidance, most claims now can be evaluated under the normal application process, without additional and inappropriate scrutiny of the marriage.
Under the new guidance, SSA recognizes that a gender transition does not affect the continuing validity of an existing marriage. Marriages that occurred after a transition will also generally be presumed valid, with additional review needed only for claims from a handful of states. Unlike many other federal programs, Social Security law requires that marriage-related benefits be determined based on the law of the state where you live. Accordingly, SSA still has to determine, in many cases, whether to treat a marriage as a same-sex marriage or a different-sex marriage.
For marriages that occurred in a state where same-sex couples may marry, the applicant will be asked, “Did you enter a same-sex or an opposite-sex marriage?” and processed accordingly. For all other claims, a valid different-sex marriage will be assumed.
Only claims for individuals living in seven states (Florida, Idaho, Kansas, Ohio, Oklahoma, Tennessee, and Texas), and where a spouse transitioned prior to the marriage, will require a special legal review. Claims from certain territories (American Samoa, Puerto Rico, and the US Virgin Islands) also still require additional review. Claims from these states still require review because SSA has determined that the law regarding transgender people and marriage is sufficiently unclear in these states to make case-by-case review necessary.
The new guidance complements other recent SSA guidance designed to implement the U.S. Supreme Court’s decision overturning the Defense of Marriage Act (DOMA).
NCTE has worked with SSA on this issue over the last few years, and we believe the new policy will make obtaining Social Security benefits significantly easier for many transgender people and their loved ones, and will make SSA’s work more efficient. NCTE will continue to urge other agencies, especially the Veterans Administration, to adopt a similar approach.
Read the updated guidelines here.
National Center for Transgender Equality's Blog 
Reblogged this on Undefine Me and commented:
I’m always happy with legal progress, even if it is the typical slow plodding along that normally happens. Progress is progress.
Still do not see where it addresses a status of a marriage when the original birth sex of both parties was the same at time of marriage but they married in a state or foreign country that allows same-sex marriage and post-transition they are opposite genders/sex markers but now reside in a no same-sex marriage state. The only reference to residing in a ban state is for post-transition same-sex couples (i.e. Transwoman married to Ciswoman or Transman married to Cisman).
Actually there is zero mention of Transgender US citizens entering into marriage in another country then returning to US. All references in the Transgender section specifically reference marriage in US states only. Case in point: pre-transition Transman marries Ciswoman in Canada with both having Female on US Passports at the time, Transman is now legally male (ID and Passport) but they live in a state that bans same-sex marriages. That state’s law claims right to roll back updated sex marker on out-of-state birth certificates and US Passports to original designation (so de-genders the male back to female regardless of Federal law). The ambiguous “get legal opinion” is a cop-out by SSA and demonstrates nothing has changed regarding SSA not actually being proactive about requiring all SSA staff to follow Federal policies instead of allowing SSA office employees in each state to make judgement calls based on local prejudice.
Seems the only thing that changed was adding references to the new same-sex marriages laws. The procedure for Numident gender change has always stated no assumption was to be made about marital status based on the gender change.
We do remember that NCTE is who tried to convince a US Senator that no such gender marker change procedure existed with SSA even though my org had provided it to you 4 years before and annually updates the POMS URL in a forum that NCTE leadership participates in.
In general, SSA will apply the same general principles for couples who married in a foreign country as they do for those who married in one state and now live in another. Reading SSA’s trans marriage guidance by itself can be confusing without reading its policy on same-sex marriages, which is lengthy, but mostly boils down to: SSA looks to the law of the state where you live. Unfortunately, these documents were written for SSA staff, not for the public. We hope SSA will put its own FAQ soon, but in the meantime we’re trying to help explain it.
Regarding the legal review process – this used to be required for everyone, now it’s only required if you live in a few states. This is a huge improvement for many, many people. Some people will still have their applications delayed for legal review, but this doesn’t mean they will be rejected – it means SSA will do their best to determine whether the marriage would be recognized in the state where you live. SSA uses this same process for a lot of other situations, not just trans people.
This lack of uniformity is happening because current federal law limits SSA to recognizing any marriage only if it’s recognized by the “domicile state.” This makes SSA different, unfortunately, from most federal programs which operate under statutes that allow the federal government to recognize any marriage that was entered validly, regardless of where you like. Obviously, this state of affairs is wrong, but it is not something SSA alone can fix – that needs to be done by courts, Congress, and/or the states. Until state bans are lifted, or Congress enables SSA to recognize any validly entered marriage regardless of domicile, the new policy represents a big improvement.
NCTE will continue to advocate for recognition for all families. We urge anyone needing individual assistant with benefit claims to contact one of the legal organizations listed on our Links page.
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