No. 8
The Texas Constitution defines marriage as between one man and one woman, but how will the state define “man” and “woman”?
Transgender marriage cases in Dallas and Houston could force the Texas Supreme Court — or even the U.S. Supreme Court — to ultimately decide the thorny issue.
In Houston, transgender widow Nikki Araguz has appealed a district judge’s ruling denying her death benefits from her late husband, Thomas Araguz III, a volunteer firefighter who was killed in the line of duty in 2010.
The judge, Randy Clapp, granted summary judgment to Thomas Araguz’s family, which filed a lawsuit alleging the couple’s 2008 marriage is void because Nikki Araguz was born male, and Texas law prohibits same-sex marriage.
The Araguz family’s argument relies heavily on a San Antonio appeals court’s 1999 ruling in Littleton v. Prange, which found that gender is determined at birth and cannot be changed.
However, LGBT advocates say the Littleton ruling is unconstitutional, goes against medical science and isn’t binding in other parts of the state, where it has not always been followed.
In Dallas, a district judge apparently reached the opposite conclusion from Clapp this November — denying a similar motion for summary judgment.
James Allan Scott, a transgender man, is seeking a divorce settlement from his wife of 13 years, Rebecca Louise Robertson. However, Robertson wants to have the marriage declared void because Scott was born a biological female.
District Judge Lori Chrisman denied Robertson’s motion for summary judgment, which leaned heavily on Littleton. The judge provided no explanation for her ruling allowing the matter to proceed as a divorce, at least for now.
It’s unclear whether Texas Attorney General Greg Abbott plans to intervene in the Dallas case. Abbott has intervened in same-sex divorce cases in Austin and Dallas, seeking to block them. But thus far he has stayed above the fray on transgender marriage, even though it presents overlapping issues.
After a transgender woman and a cisgender woman applied for a marriage license in 2010, the El Paso County clerk requested a ruling from Abbott about whether to grant it. But Abbott opted not to weigh in, with his office saying it would instead wait for court rulings in the Araguz case. The El Paso couple was later able to marry in San Antonio, where the county clerk went by Littleton v. Prange.
In response to the Araguz case, a bill was introduced in the Texas Legislature this year to ban transgender marriage. The bill would have removed proof of a sex change from the list of documents that can be used to obtain marriage licenses. Strongly opposed by LGBT advocates, it cleared a Senate committee but never made it to the floor.
Trans advocates said the bill also would have effectively prohibited the state from recognizing their transitioned status — or, who they are — for any purpose.
The problem for socially conservative lawmakers is, they can’t have it both ways. Marriage is a fundamental right that courts have said can’t be taken away from a person completely. So no matter what, Texas will be forced to allow a version of same-sex marriage.
Which is why some believe the cases could help undo the marriage amendment.
— John Wright
This article appeared in the Dallas Voice print edition December 30, 2011.
“The Texas Constitution bans marriage between one man and one woman, but how will the state define “man” and “woman”?”
I don’t think the Texas constitution does this.
@Susan: Thanks. It’s been corrected to read “… defines marriage as …”
The proposed legislation would not have BANNED anything. Removal of a document that was one of MANY non-photo ID’s that would be removed from current provisions of the Family Code is NOT the same as ‘banning’ marriage for a transsexual person. There are MANY other forms of ID that would have satisfied proof of ID for the purposes of obtaining a marriage license.
As to the question of what the Court ultimately decides (and I agree this may be something that goes beyond the State Supreme Court), I can only hope that someone on one of the legal teams has adequately briefed the issue that the language in the Family Code conflicts with the Constitutional language as it relates to definitions. And yes, with this being in the legal realm where words HAVE meaning, there IS a difference between sex and gender, and the terms used in the Constitution are more aligned with gender as opposed to sex. Not quite the nuance of a former President talking about defining what “is” is, but yeah, you get my point…
@michelle
Um… yah, it would have. A bill has 2 halves: The Bill and the Bill’s Intent. The bill is the official wording and the accompanying Intent is legislative guidance on the why. As part of the bill’s Intent, the ID wording would have been removed so as to be in compliance with Littleton v. Prange. The bill would have built Littleton into State Law.
@cristan: The courts in this State on more than one occasion, at all appellate levels, have generally displayed a tendency to read the statute itself, not any dicta related to intent. More than one Opinion at many of the fourteen Court of Appeals as well as the CCA and the SSC have held to the position that the legislative intent is based upon what was actually done not what they might claim the intent happened to have been…this is due, in large part, precisely because what gets introduced and what is ultimately passed and enrolled can often be two entirely different critters by the time various amendments and committee tweaks have occurred.
Given that the legislation proposed in the past session was going to do away with the use of ALL non-photographic documents (including, BTW, birth certificates) as a means of proving identity for marital licensure purposes), the intent actually becomes more consistent with ID provisions being bandied about for voting purposes…let’s face it, should an automobile insurance policy REALLY satisfy ID requirements to get a marriage license? Or to get back to your apparent position…do post-operative men or women REALLY have no means of proving up their identity beyond a court order?
It was truly sad that counsel in Nikki’s case seemed more interested in trying a CAUSE as opposed to representing a widow in a tragic estate battle where multiple victims existed. Equally disconcerting is the manner in which some have continued to make her a cause celebre which seems, in turn, to have contributed to other issues working to her personal detriment.