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September 15, 2013
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September 16, 2013

If you live in Texas, YOUR transitioned status is up for appeal

This very important case has been dragging on for a couple of years now and here’s the recap:

1.) It all started April, 19 2010 with this:

ElPasso

Back in 2010, an intersex person wanted to marry a woman and the El Paso clerk  didn’t know if it was legal to issue a marriage license because this person had initially been sexed male, but had genital reconstructive surgery and had proof of her intersex status. So, the El Paso clerk wrote to the Texas Attorney General Greg Abbott, asking him to issue an opinion on whether El Paso should recognize the transitioned status of people who have “sex change surgery.” And yeah, I’m talking about that Abbott – the same guy who’s about to sue every-fucking-body to preserve his religious right to discriminate against queer people.

This is really important:

If Abbott issues the opinion that the government of the State of Texas won’t recognise the transitioned status of people who have a “sex change surgery” – intersex or trans, such a legal opinion may very well ruin the lives of a lot of Texans. Think about what such a position could mean for everything from State-issued ID to restroom access.

2.) Nikki Araguz’s husband, Thomas Araguz died while fighting a fire on July 3, 2010.

Nikki was quietly grieving the loss of her husband when Thomas’ ex-wife contacted the press to inform everyone that Nikki was trans and the day after Nikki’s husband was buried, asked the court to nullify the marriage demanding that any death benefit that might be due a public servant’s widow be put into a trust that the ex could control. The trust would allow the ex-wife to buy things like a new house, cars, furniture, electronics, vacations, etc.

Upon hearing of the case brought against Araguz, Gregg Abbott declared that he would issue his opinion concerning the transitioned status of people who have a “sex change surgery” pending the outcome of the Nikki’s case. Please reread the previous sentence because it will impact your life in the coming years. Abbott is going to use the outcome of this case to inform his opinion.

The ex hired a couple of ethically challenged lawyers who immediately went on the offensive. They claimed that Thomas was clueless that Nikki was trans (BTW, Nikki and Thomas would come to my trans clinic together) and this played really well in the press. The ex’s lawyers also claimed that Nikki has stolen a truck that had belonged to Thomas after his death.

3.) The negative press explodes.

It comes out that Nikki had, in the past been arrested (but never convicted) of drug offenses. The Houston Chronicle writes an editorial noting that Nikki had stolen a truck and doesn’t mention the fact that the truck was Nikki’s, that the in-laws had, in fact taken it and that the court ordered the in-laws to return it to Nikki. People believed that Nikki bamboozled her husband into marrying her and that they lived together while she was pre-op and that Thomas never knew. Most people believed it was possible. When it came to light that Thomas knew, the narrative became that Nikki hated Thomas and they were inches away from being divorced:

chron1

chron2

Ex wife claims a divorce was just about to happen, press gobbles it up

When it turned out the the two had been writing each other love letters and had signed a lease agreement together shortly before Thomas’ death…

lease

… the focus then – finally – turned to Texas law.

The ex’s lawyers claimed that ‘Texas law’ barred people like Nikki from getting married. They cited the Texas constitutional ban on gay marriage and a 1999 non-binding appellate ruling that asserted that at the moment of birth, the creator of the universe comes down from where he lives to bestow an immutable binary gender upon each Texas baby:

The deeper philosophical (and now legal) question is: can a physician change the gender of a person with a scalpel, drugs and counseling, or is a person’s gender immutably fixed by our Creator at birth? – Chief Justice Phil Hardberger, Littleton v Prange, 1999

However, it turned out that the Texas Constitution says absolutely nothing about people who have a “sex change surgery.” Furthermore, it turns out that the Texas Legislature passed a law recognizing that people who have a “sex change” can, in fact, be issued a marriage license.

After it turned out that in 2009, the Texas Legislature passed a law which copied the wording from a Georgia “sex change” statute (and BTW, Georgia uses that statute to recognize post-transition sex), the argument then became that Nikki wasn’t postsurgical when they were married and thus, the marriage is null as per the 2009 Texas law and Nikki’s lawyers… agreed!

However, in Texas, one must hold yourself out to be married for only 24 hours to have a fully legal marriage (called an informal or common-law marriage). When Nikki was post-op, she and Thomas met all Texas requirements for a common-law marriage which carries all the same rights, privileges and responsibilities of a formal marriage.

The ex-wife’s lawyers then claimed that in the 2009 Texas Legislative law, the term “sex change” means that it’s just proof that no sex has changed:

derp

Houston Chronicle, August 3, 2010 – Texas Constitution says nothing about “sex change”

… and that her sex should therefore be determined by Nikki’s original California birth certificate…. Which is here:

birthcert

Original – NOT AMENDED – Birth Certificate of Nikki Araguz

Unfortunately for the ex-wife, California views the change of gender of a transsexual or intersex person as a clerical error – absolutely no different than if Nikki’s mother’s name or place of birth been misspelled. There is no amended birth certificate. The State of California asserts that Nikki was female on the original birth certificate.

This is a completely different process than what Texas has in place. In Texas, trans and intersex people can have an amended birth certificate. This means that there are two certificates: the original which remains on file and carries legal status as well as the new amended certificate.

So, through some – as of yet, undisclosed method – the ex-wife who worked in Nikki’s medical clinic somehow got a copy of the voided California birth certificate from Nikki’s medical records and submitted it to the court.

4.) May 26, 2011 – The Wharton Court

The long and short of it is that the small-town Republican judge pretended that the badly photocopied version of Nikki’s voided birth certificate – a copy that the State of California does not recognize – has the same legal standing as an original Texas birth certificate and that the original California birth certificate should be viewed as if it were an amended Texas birth certificate. The judge issued a one-page judgement and refused to acknowledge or respond to any legal argument made by Nikki’s legal team.

5.) July 6, 2011 – The Wharton Court II

A motion was made to void Judge Clapp’s May 26th ruling. Neither the judge nor the ex-wife’s lawyers addressed the affirmative arguments made by Nikki Araguz  which is a violation of Texas law. When this was brought to the judge’s attention, he called a recess because he never even bothered to read the motion Nikki’s lawyers had submitted.  Judge Clapp then came back to court and asserted that it didn’t matter that he didn’t follow Texas procedural law when he made his verdict because he would have arrived at the same decision anyway. Furthermore, because he knew that no matter what, he would still arrive at the same decision, Judge Clapp said having another trial that comports with Texas law would just be a waste of his time.

6.) September 13, 2013 – Nikki Attempts to Get a Marriage License, Harris County, Texas

During the last year, Nikki met a man, the two of them fell in love and a few months ago, her boyfriend asked Nikki to marry him by having a plane spell out, “MARRY ME NIKKI ARAGUZ I LOVE U” in the sky:

marry

She said yes.

Last Friday, Nikki and her fiancé went to the Harris County Clerk’s office to get a marriage license. Remember,  Texas Family Code § 2.005(b)(8) states that a marriage license can be issued for a valid marriage if someone shows proof of a “sex change.”

She was denied a marriage license.

Harris County Clerk Stan Stanart, after conferring with the Harris County Attorney, denied her marriage license application citing the Texas Constitution – which, in fact, says nothing about people who have a “sex change.”

Trans lawyer and writer for the TransAdvocate.com, Katrina Rose made the following points about the fallacious reasoning behind the actions of the Harris County clerk:

1.) There is nothing in Texas statutory law that says the original birth certificate prevails.

2.) The 1999 court decision which purports to say that (a) was never binding precedent outside of the San Antonio appellate district but most importantly (b) was superseded by the 2009 ‘proof of sex change’ statute (whose language was copied from a Georgia statute, and Georgia *does* recognize post-transition sex, so that language damn well does refer to post-transition sex, not birth sex.)

3.) The 2005 [Texas] constitutional amendment defines “marriage,” not “male” and “female.”

7.) September 18, 2013 – The 13th District Court of Appeals, Corpus Christi, Texas

Nikki’s lawyers filed an appeal (read appeal here) to the mostly Democratic 3-panel court of appeals. This coming Wednesday, the court will hear the arguments.


Judge Phyllis Frye and I will be traveling to the court together and I hope to have an update on this case for you this Wednesday afternoon.

If Nikki were to lose (which I don’t think is likely), she will appeal to the full 5-panel court of appeals. If the the ex-wife’s side loses, she can also appeal the 5-panel court. Either way, I think the full 5-judge panel will side with Nikki and the ex will appeal to the Texas Supreme Court. The Texas Supreme Court is led by an anti-gay advocate and will rule against her. After that is the Supreme Court… and I think that’s where this case will eventually land.

Should this go to the US Supreme Court (which is likely, IMHO) the implications of this case will affect each trans person in the US.

This is an important case that will, at the very least, define the way trans and intersex people are able to function as citizens in Texas. More probable, this case will define the validity of the transitioned status of trans and intersex people throughout the US.

Oh, and just so you know, the ex’s attorney, Ed Burwell was banned from practicing law in the state of Texas for ethical violations.

 


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Cristan Williams
Cristan Williams
Cristan Williams is a trans historian and pioneer in addressing the practical needs of the transgender community. She started the first trans homeless shelter in the South and co-founded the first federally funded trans-only homeless program, pioneered affordable healthcare for trans people in the Houston area, won the right for trans people to change their gender on Texas ID prior to surgery, started numerous trans social service programs and founded the Transgender Center as well as the Transgender Archives. Cristan is the editor at the social justice sites TransAdvocate.com and TheTERFs.com, is a long-term member and previous chair of the City of Houston HIV Prevention Planning Group.

7 Comments

  1. admin says:

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    How do I get a copy of my divorce decree in Harris County? Posted on June 30, 2007 by Shannon Cavers. If you were divorced in Harris County, Texas you may obtain a …
    If you live in Texas, YOUR transitioned status is up for appeal – The ex-wife’s lawyers then claimed that in the 2009 Texas Legislative law, the term “sex change” means that it’s just proof that no sex has changed: Houston … got a copy of the voided California birth certificate from Nikki’s medical records …
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  2. […] define how US courts views the transitioned status of trans people. For the uninitiated, here’s how we got here and why this case will likely affect YOU. You should keep a close eye on this […]

  3. This is interesting because it has to be either one way or the other or both but not none. The way these two cases are about the same person are they simply stating that if you happen to be transgender in Texas that you can’t marry either gender??

    They can’t have their cake and eat it too.

  4. […] Today Phyllis Frye (America’s first out trans judge) and I met up with Nikki Araguz at the 13th District Court of Appeals for the hearing on how Texas will view the transitioned status of trans folk. For the uninitiated, here’s how we got here and why this case will likely affect YOU. […]

  5. […] Today Phyllis Frye (America’s first out trans judge) and I met up with Nikki Araguz a the 13th District Court of Appeals for the hearing on how Texas will view the transitioned status of trans folk. Here’s the case review for the uninitiated. […]

  6. […] So that’s the framework under which Abbott is proceeding. And before you think this might not touch you as a trans person, Abbott is of the opinion that gender can never be changed, meaning he is seeking to legally de-transition every single transitioned transsexual in the state of Texas. […]

  7. I’m glad to see this, I had followed Nikki’s case to an extent but was unaware of some of the finer legal details. I’m also very scared at the possibility of this going all the way to the Supreme Court, while we have made gains & there have been positive rulings I’m still not 100% certain that the court would issue a favorable or at least neutral ruling -and the possibility of legal regression scares me witless, I’m planning on marrying my male partner in Wisconsin eventually and I’d very much like to be able to do so legally-.

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