Who Can Marry Whom?

Is there same-sex marriage in the U.S. outside of Massachusetts?  Well, it depends what you mean by "sex," I suppose, when you take into account the difficulties that most states have in accepting the reality of variant gender identity.  This was illustrated by a little flap in Milwaukee last week over the desire of Barbara Lynn Terry and Nicole Winstanley to "tie the knot."

Terry, born Ronald Francis Terry, has identified as a woman since childhood, and obtained a legal name change in 1980.  She has been living as a woman ever since, although she has not had gender reassignment surgery.  She and her girlfriend, Nicole Winstanley, applied for a marriaga license at the Milwaukee County Clerk's office.  Terry brought her birth certificate, indicating her male legal identity, and the clerk's office issued the license, even though there was some concern about two female names on the certificate and Terry's initial move to put her name in the bride's space.   Then they went to Circuit Judge David A. Hansher to have the marriage ceremony performed, and Hansher balked.  Confronting two women, he thought immediately of the state's constitutional amendment banning same-sex marriages.  Clearly, Terry identifies as a lesbian and would consider this a same-sex marriage.  On the other hand, she has not petitioned to change her birth certificate designation, and in many - probably most - states, a court would not authorize such a change, although some will do so upon evidence of surgical alteration making a permanent physical gender change (and I believe a few might without the surgery, but I'm not so sure about that). 

Judge Hansher held an in-chambers hearing on Friday (March 23), and received testimony by speaker-phone from Terry's physician.  Upon satisfying himself that Terry remains genitally male, Hansher agreed to perform the ceremony. 

Of course, the ultimate goal of the LGBT legal movement is to achieve marriage equality by eliminating gender requirements in marriage, as has been achieved in Massachusetts, which would eliminate any problems about marrying for people in the position of Terry and Winstanley.   Had Hansher found that this would be a same-sex marriage, as the couple really envisions it to be, that would mark an important acceptance of Terry's gender identity for purposes of the law, while blocking her earnest desire to marry a person whom she loves.  What is the correct answer here?