Thomas Beatie was living as a man when he married Nancy in Hawaii in 2003.
Born female, Beatie had been taking hormones but had yet to undergo gender reassignment surgery when Nancy Beatie learned she could not have children. So Thomas Beatie, through artificial insemination and donated sperm, carried and birthed their three children.
Now living in Arizona, the Beaties decided to split. But a judge, citing state law that does not recognize same-sex marriage, refused to grant the divorce on the grounds that Thomas Beatie lacked sufficient evidence to prove he was legally a man at the time of his marriage.
Maricopa County Family Court Judge Douglas Gerlach cited the break in Thomas Beatie's hormone treatments while he was pregnant.
"Parties have failed to show that the word 'man' in the state constitution means anything different from its plain, ordinary meaning, which by any generally accepted definition or reputable dictionary excludes people capable of giving birth," Gerlach wrote in his ruling dismissing the case.
But lawyers for Thomas Beatie say he had legal documents identifying him as a man at the time of the marriage. He had already undergone chest reconstruction surgery to remove his breasts and begun hormone treatment, which he halted after Nancy Beatie learned she could not conceive.
Under current federal and Arizona law, which does not recognize same-sex marriage, a gay couple would have to reestablish residency in a state that does in order to be granted a divorce. And according to both Arizona and Hawaii law, a person must undergo gender reassignment surgery qualify to qualify to alter his or her sex on a birth certificate.
Although the Beaties consider their marriage to be a man-woman union, Hawaii does recognize same-sex marriages.
"It's hard for him," said Beatie's attorney, David Cantor. "He feels he is being targeted saying, 'Look, if you had kept it to yourself and didn't use your reproductive organs, we wouldn't be here."
"This obviously is not Beatie versus Beatie," Thomas Beatie said after the ruling. "This is the state of Arizona versus transgender people, human reproductive rights and fairness under law."
In fact, Nancy Beatie may join with her estranged husband in his appeal, either at the State Court of Appeals or the State Supreme Court.
"The decision is a two edged sword for Nancy," said Nancy Beatie's attorney, David Higgins. "Obviously she is very disappointed the judge did not find the marriage to be valid. She understood herself to be married, believed Thomas to be a man, and we will probably join Thomas in moving forward with an appeal in that regard."
Thomas Beatie gained a measure of fame in 2008, during his first pregnancy, and became known as the "Pregnant man." He appeared on talk shows and released a book called "Labor of Love: The Story of One Man's Extraordinary Pregnancy."
Thomas and Nancy Beatie's children are aged 2, 3 and 4.