Which Will Be The Texas Same-Sex Marriage? Nikki Araguz's Or Sabrina Hill's Marriage?

Marriage, involving Texas and women who’ve had genital reconstruction surgery — which I’ll identify for the purposes of this piece as transsexual women — are at the center of a legal question: Which will be the Texas same-sex marriage? — Nikki Araguz’s or Sabrina Hill’s marriage?.

Beginning with the Houston Chronicle’s Legal Chaos Reigns In Same-Sex Unions, Maria C. Gonzalez discusses same-sex marriage, and does it mostly in regards to Nikki Araguz marriage. When I spoke to Professor Gonzalez about her commentary, she told me the header she submitted for her piece was A Plea For The Dignity Of Private Dysfunction. She didn’t title the piece with regards to same-sex marriage, but an editor for the Houston Chronicle retitled it.

Professor Gonzalez began her piece this way:

Many Texans are so afraid of gay, lesbian, bisexual and especially transgender persons that what would be simple probate matters to others turn into media fodder for us.

The Nikki Araguz case going on in Wharton County is another example of how the systematic disenfranchisement of members of my community has turned one woman’s private pain into a very public indignity. Firefighter Thomas Araguz died, and his wife and children would normally receive his death benefits. Perhaps like many in-laws who do not approve of their children’s choice of spouse, Araguz’s parents do not want their daughter-in-law to receive anything. They have hired a lawyer who is using a 1999 San Antonio appeals court case, Littleton v. Prange, to argue that Nikki Araguz was not Thomas Araguz’s wife because there was no marriage. Littleton held that even if one’s gender has been surgically corrected, one nonetheless remains the gender identified on his/her birth certificate. In other words, Littleton says that gender cannot be legally changed for the purposes of marriage.
Many transwomen and transmen in Texas are married to their partners, many of whose birth certificates reflect the same gender as their spouses. In El Paso, a same-sex couple recently requested a marriage license. These two women have presented appropriate documents with birth certificates showing that one of them was identified as male at birth.
The request has been forwarded to Attorney General Greg Abbott for a ruling. Not surprisingly, Abbott has avoided controversy by delaying his ruling pending an outcome in the Wharton County case. This is a no-win case for Abbott, whose supporters overwhelmingly oppose both same sex and transgender marriage….

That second woman would be Sabrina Hill. In that case, Sabrina Hill was denied marriage to another woman because she is a post-surgical, male-to-female transsexual. She attempted to obtain a marriage license to marry another woman, based on the Judgment of the Texas Appeals Court in the Case of Littleton v. Prange, but as Professor Gonzalez found the Attorney General in Texas unwilling to take a position on whether Sabrina Hill’s marriage would be an opposite-sex or same-sex marriage.

The courts are going to decide what sex and gender is in Texas, and either Nikki Araguz or Sabrina Hill is going to end up with a marriage that is declared a same-sex marriage.

If we use gender identity and genital reconstruction surgery as our measures, then legally Sabrina Hill’s planned marriage would be a Texas same-sex marriage, and Nikki Araguz will have had a Texas heterosexual marriage. If Littleton v. Prague is still the Texas sex and gender legal standard, then Sabrina Hill’s planned marriage would be a legally heterosexual marriage, and Nikki Araguz will have had a same-sex marriage.

If the 2009 Texas statue Texas Fam. § 1.102, Chapter 2 — which states {as modified by Acts 2009, 81st Leg., R.S., Ch. 978, Sec. 1, eff. September 1, 2009 (H.B. No. 3666)} — that for a marriage license application, one way proof of eligibility for a planned marriage may be established is by “an original or certified copy of a court order relating to the applicant’s name change or sex change,” — well, then we are where we are now: in limbo. We’re in a Texas courtroom deciding whether someone is male or female for purposes of marriage, and that decision will effect many, many other transsexual people in Texas.

Weighing in on this in relationship to LGBT community is Phyllis Frye — Nikki Araguz’s attorney. Frye herself is identified as both transsexual and transgender; Her website is www.transgenderlegal.com.

Well, Frye was quoted in the Dallas Voice, in their piece ‘The Same-Sex Marriage Fight Is Just As Much A Transgender Fight As It Is (An LGB) Fight’, as stating the following in an newsletter/e-blast:

“Why is it that the Prop 8, same-sex marriage fight in CA and the DOMA same-sex marriage fight in the Northeast are BOTH so well funded by lesbian and gay groups and lesbian and gay individuals, but the same-sex marriage fight in Texas has been thus far supported ONLY by a small number of mostly transgenders plus three LGBT-allied churches, mostly in Houston, all in Texas?
“Where is the same national support given for the L and G same-sex marriage struggles?” she added. “Has it remained nonexistent for over six weeks now because this Texas fight is insignificantly and merely a ‘tranny’ same-sex marriage fight, so who nationally gives a shit? Then are we a National LGBT-inclusive community, but NOT when it comes to financing the ‘tranny’ same-sex marriage fights? From here, it seems to me – still – that the national L and G groups and the big bucks L and G attitudes haven’t really changed very much. FOLKS, IT IS TIME YOU FIGURED IT OUT THAT THE SAME-SEX MARRIAGE FIGHT IS JUST AS MUCH A TRANSGENDER FIGHT AS IT IS A LESBIAN, GAY AND BISEXUAL FIGHT.

Okay, if I were wording Phyllis Frye’s e-blast, I would have used the language “marriage equality” instead of “same-sex marriage” because her client doesn’t see her marriage to her husband as a same-sex marriage. But, Frye’s overall point on LGBT donors and LGBT organizations is still worth noting.

As far as I can tell, no national lesbian, gay, bisexual, and transgender (LGBT) non-profit organization has weighed in on the marriage issues revolving around the specific cases of Nikki Araguz and Sabrina Hill, and Frye would know better than me if any LGBT big donor or non-profit organization has contributed to Nikki Araguz’s legal defense fund.

It’s an eerie silence from LGBT community, for sure. This is especially true considering how many trans people I know have worked both in front of the room and behind the scenes on marriage equality — especially here in my own home state with regards to Prop 8.

In the meantime, if Littleton v. Prague is still the standard on sex and gender for marriage purposes in Texas, then the court ruling on Nikki Araguz’s probate case will again highlight how post-operative transsexuals have a Loving v. Virginia issue regarding the fundamental right to marry — an issue of their marriages annulled at state lines. That’s because, as New Jersey’s M.T. v. J.T. showed us, different states apply different standards to transsexuals regarding sex and gender, and crossing state lines can result in a transsexual’s marriage becoming a heterosexual marriage or a same-sex marriage.

In the meantime too, we’re still left with the legal question: Which will be the Texas same-sex marriage? — Nikki Araguz’s or Sabrina Hill’s marriage?

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Further reading:

* Houston Press: The Fireman’s Wife

* M.T. v. J.T. (Superior Court of New Jersey, Appellate Division, 1976)

* Lewis v. Harris (New Jersey, 2006)

* Littleton v. Prague (Texas Appellate Court, 1999)

* Deakin Law Review: The Proof is in the History: The Louisiana Constitution Recognizes Transsexual Marriages and Louisiana Sex Discrimination Law Covers Transsexuals- So Why Isn’t Everyone Celebrating? (By Katrina Rose)