Think about all the times you need to show ID: seeing a movie, ordering a drink, purchasing certain medicines, traveling abroad, voting, driving, opening bank accounts, buying a house, leasing an apartment, starting a new job, applying to school and accessing health care and health insurance. When the gender marker on a transgender person's identity documents does not match their gender expression, engaging in these everyday activities can lead to discrimination, harassment and violence. Furthermore, inaccurate identity documents can lead to denials of legal rights, including lack of marriage recognition, which encompasses the ability to marry someone of the opposite sex, inheritance rights should their partner die intestate and the ability to be granted a divorce and have marital property divided equitably. While Texas courts have been slow to remedy these denials of legal rights, some Texas courts are gradually adopting a more evolved understanding of gender. An understanding all Texas courts ought to adopt and that all Texas agencies enforce.
Adopting a more nuanced concept of gender includes undoing anti-transgender precedents. In 1999, the Fourth Court of Appeals of Texas held in Littleton v. Prange that gender is immutable. Littleton was a case of first impression in Texas; as the court noted, "transsexual [is] a term not often heard on the streets of Texas, nor in its courtrooms." Littleton was a transgender woman. Upon her husband's death, she filed a medical malpractice suit against his doctor, Prange, under Texas' wrongful death statute. In order to determine whether Littleton had standing to sue as a surviving spouse, the court framed the issue as whether a marriage between a cisgender man and a transgender woman is valid.
Littleton predated Goodridge v. Department of Public Health by four years. The court noted that very few courts had, at the time, considered transgender rights cases and noted that the only ruling in favor of same-sex marriage was by the Hawaiian Supreme Court in Beahr v. Miike. The court then contrasted this lack of case law to the "very wide spread" opposition to marriage equality. Furthermore, Littleton relied on the Defense of Marriage Act's definition [PDF] of marriage as between one man and one woman.
During the course of litigation, Littleton amended the gender designation on her birth certificate to state she is female. The trial court allowed her affidavit stating she is female as evidence that the original birth certificate was inaccurate, pursuant to Texas Health & Safety Code § 191.029, which allows for changes if there is "satisfactory evidence [the original is] inaccurate." However, the court held that the legislative intent behind the word "inaccurate" meant a clerical error on the birth certificate made at the time of birth. The majority considered the birth certificate sufficient evidence that, as a matter of law, Littleton is a man. The dissent, however, emphasized that this discrepancy creates a genuine issue of material fact, arguing summary judgment was inappropriate.
The court, using cases from other jurisdictions, concluded that Littleton was a man and that gender is an immutable trait. The court invalidated Littleton's marriage as a same-sex marriage, rendering her unable to sue as a surviving spouse. The court declined to establish a standard for successful sex reassignment, especially without legislative guidance, deeming it "intellectually impossible" and rejecting Littleton's argument that surgery serves as the definitive test of gender. The rejection of this argument may have been ultimately more useful than its acceptance would have, as the more progressive standard today is not surgery but appropriate clinical treatment.
Fifteen years after Littleton, the Thirteenth Court of Appeals of Texas in Estate of Araguz reversed and remanded a trial court's summary judgement that invalidated the marriage between Nikki Araguz, a transgender woman and volunteer firefighter Thomas Trevino Araguz. Thomas died in the line of duty in 2010 and after his death, his mother, Simona Longoria, brought suit to invalidate his marriage to Nikki on the basis that it was a same-sex marriage. Thomas's ex-wife, Heather Delgado, also intervened as next friend on behalf of her two minor children with Thomas.
In 1996, Nikki amended her California birth certificate to reflect her name change. She also obtained a Kansas driver's license with a female gender marker. She used the Kansas driver's license to get a Texas driver's license that stated she was female. In 2008, she used her Texas driver's license to apply for a marriage license. At the time, Nikki had not yet undergone genital reassignment surgery. In 2010, several days after her husband died, Nikki requested that a San Francisco court change her birth certificate to a female gender marker. A month later, California issued her a new birth certificate. Nikki produced her California birth certificate as summary judgment evidence.
Each party filed motions for summary judgment. Nikki filed a no evidence motion "asserting that she was entitled to judgment as a matter of law because Heather and Simona could produce no evidence that Thomas and Nikki did not have a valid ceremonial marriage or, alternatively, a valid informal marriage." Heather and Simona argued that summary judgment was proper based on Littleton. The trial court granted Heather and Simona's motions while denying Nikki's.
In it's decision delivered earlier this year, the Thirteenth Court of Appeals of Texas noted that the legal landscape had changed since Littleton and that the Texas legislature was no longer silent. It found that there was a genuine issue of material fact as to Araguz's gender, that the legislature overturned Littleton in 2009 and the summary judgment cannot be upheld based on judicial estoppel. An affidavit from Nikki's doctor, discussing the complexities of gender, was sufficient for the court to find a genuine disputed fact. The court also mentioned the ever-increasing number of states with marriage equality and the US Supreme Court's ruling in US v. Windsor overturning Section 3 of the Defense of Marriage Act [PDF]. Ultimately, the Araguz court held that "an individual who has had a 'sex change' is eligible to marry a person of the opposite sex," citing the Texas Family Code Section 2.0005(b)(8). The new trial has yet to take place.
The difference between the courts' outcomes in Littleton and in Araguz is partly due to evolving social, medical and legal understandings of gender. The 2009 amendment to Texas's Family Code is part of that evolving understanding. The Texas legislature amended its Family Code to include that "an original or certified copy of a court order relating to the applicant's name change or sex change" can establish the proof required for a marriage license. The court in Araguz found the amendment invalidates Littleton, legitimizing marriage in Texas for transgender people. During the 82nd legislative session in Texas, which ended in 2012, there were several unsuccessful attempts to repeal the 2009 amendment.
Because Texas statutes now recognize the rights and marriages of transgender people, Texas agencies must allow transgender Texans to amend gender markers on their identity documents and all courts, not just courts within the jurisdiction that decided Araguz, must recognize the marriages of transgender Texans.
Francesca Acocella earned her Bachelor of Arts in Political Science from Wellesley College. She is a J.D. candidate at Benjamin N. Cardozo School of Law, where she is a staff editor for the Cardozo Public Law, Policy, and Ethics Journal and President of OUTLaw.
Suggested citation:Francesca Acocella, An Affirmative Decision for Transgender Marriage in Texas, JURIST - Dateline, September 16, 2014, http://jurist.org/dateline/2014/09/Francesca-Acocella-Transgender-Marriage.php
This article was prepared for publication by Michael Finely, an Associate Editor for JURIST Commentary service. Please direct any questions or comments to him at firstname.lastname@example.org