Thomas Beatie was born a woman and later underwent a double-mastectomy, and began testosterone hormone therapy and psychological treatment to become a man, but he retained female reproductive organs and gave birth to three children.
Gerlach said he had no jurisdiction to approve a divorce because there's insufficient evidence that Beatie was a man when he married Nancy Beatie in Hawaii. He said the Beaties never provided records to fully explain what Thomas Beatie actually had done and not done to become a man.
"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 (Thomas Beatie) was a transsexual male when they were issued their marriage license," he wrote in Friday's ruling.
A spokesman for Beatie, Ryan Gordon, said the judge's comments came as a shock and that Beatie plans to appeal the ruling. He said Beatie legally was married as a man and never was required to disclose that he retained female reproductive organs when applying for and being granted a new birth certificate in Hawaii as a man. He said Beatie halted testosterone treatments so that he could give birth to his children.
"It's unfortunate that the judge out here doesn't recognize marriage in another state," Gordon said.
Beatie is eager to end his marriage, but the couple's divorce plans stalled last summer when Gerlach said he was unable to find legal authority defining a man as someone who can give birth.
Gerlach's ruling didn't address whether Arizona law allows a person who was born female to marry another female after undergoing a sex change operation.
A separate ruling issued Friday by Gerlach sets guidelines on how the Beaties will co-parent their three children and grants them joint authority in making legal decisions. Thomas Beatie is required to pay nearly $240 a month to Nancy Beatie for child support, but she won't get alimony because the marriage was declared invalid.
Nancy Beatie's attorney, David Higgins, praised Gerlach for the thoroughness of the decision on the marriage, although it wasn't the one she had hoped for.
"He still sees a same-sex marriage, but he gave us all the rulings that we're asking for as far as the children," Higgins said.
The National Center for Lesbian Rights, which isn't involved in the Beatie divorce case, has said courts have declared marriages involving a transgender person invalid in a handful of cases across the country, but that those cases had different factual and legal issues than those in the Beatie case.
Thomas Beatie, known as "The Pregnant Man," was born Tracy Lehuanani Lagondino in Oahu, Hawaii. He began testosterone treatments in 1997 and underwent double mastectomy