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Texas Supreme Court Refuses to Dismiss Challenge to Spousal Benefits for Houston City Employees

Posted on: June 30th, 2017 by Art Leonard No Comments

In a clear misreading of the U.S. Supreme Court’s marriage equality ruling from 2015, Obergefell v. Hodges, especially as elucidated just days ago by that Court in Pavan v. Smith, the Texas Supreme Court unanimously refused on June 30 to dismiss a lawsuit by two disgruntled Houston taxpayers who argue that the city of Houston may not provide employee benefits for the same-sex spouses of its employees. The case is Pidgeon v. Turner, 2017 Tex. LEXIS 654.

Instead, while affirming a ruling by the Texas Court of Appeals that had reversed the preliminary injunction that a Texas trial court issued in 2014 against payment of the benefits, the Texas Supreme Court sent the case back to the trial court for it to decide whether the Obergefell decision obligates Houston to provide equal benefits to same-sex spouses of its employees, and also to consider the taxpayers’ argument that the city should be required to “claw back” the value of benefits that were paid prior to the Obergefell decision, on the theory that Texas’s refusal to recognize same-sex marriages contracted out-of-state was valid until the U.S. Supreme Court ruling was announced.

In Pavan v. Smith, the Arkansas Supreme Court had ruled that the Obergefell decision did not require the state to treat same-sex spouses the same as different-sex spouses for listing as a parent on the birth certificate of a child born to their spouse. Reversing that ruling, the U.S. Supreme Court said: “As we explained [in Obergefell], a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ Indeed, in listing those terms and conditions — the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access — we expressly identified ‘birth and death certificates.’ That was no accident…”

Thus, the Supreme Court made clear in Pavan, contrary to the Arkansas Supreme Court’s unduly narrow reading of Obergefell, that same-sex couples are entitled to the same rights and benefits of marriage as different-sex couples. In listing some of the rights and benefits of marriage that same-sex couples had wrongly been denied, the Obergefell court specifically mentioned health insurance, an employee benefit that is at issue in the Texas case.  Thus, to claim that the Obergefell opinion fails to deal with this issue explicitly is totally disingenuous.

And yet, Justice Jeffrey S. Boyd wrote for the Texas Supreme Court in Pidgeon v. Turner, “The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and – unlike the Fifth Circuit in DeLeon – it did not hold that the Texas DOMAs are unconstitutional.” “DeLeon” refers to the Texas marriage equality decision that was issued by the U.S. Court of Appeals for the 5th Circuit a few days after the Obergefell decision, holding that the Texas ban on same-sex marriage was unconstitutional in light of Obergefell.

Instead of cutting through procedural complications and saving everybody involved lots of wasted time and money through prolonged litigation, the Texas court has now repeated the error of the Arkansas Supreme Court by insisting that the Obergefell ruling does not clearly require “the same” rights, benefits and responsibilities, and, incredibly, cited in support of this point the Supreme Court’s decision on June 26 to grant review of a Colorado Court of Appeals ruling, Masterpiece Cakeshop v. Colorado Human Rights Commission, which concerns a totally different question: whether a baker has a 1st Amendment right to discriminate against a same-sex couple by refusing an order for a wedding cake in violation of a state anti-discrimination law.  The Supreme Court did not address in Obergefell the question of reconciling a potential clash between anti-discrimination laws and the rights of free exercise of religion and freedom of speech enjoyed by non-governmental entities and individuals.  But the Court most emphatically did address the issue that governmental actors, bound by the 14th Amendment, must accord the same rights to all married couples, whether same-sex or different-sex, and it reiterated that point in Pavan.

The Texas case dates back to 2013, when Houston’s Mayor Annise Parker, an out lesbian, reacted to the Supreme Court’s Windsor decision by extending benefits to the same-sex spouses of Houston city employees who had gone out of state to get married. At the time, Texas had both a state Defense of Marriage Act and a similar constitutional amendment, and Houston had a charter provision limiting municipal employee benefits to legal spouses and children of employees.  Relying on an advisory opinion from the city attorney, Parker concluded that after Windsor it was unconstitutional to refuse to recognize those out-of-state marriages.

Jack Pidgeon and Larry Hicks, Houston taxpayers who identified themselves as devout Christians who did not want their tax money going to subsidize same-sex marriages, filed a lawsuit challenging the benefits extension in December 2013, and refiled in October 2014 after the first case was dismissed for “want of prosecution” while the parties were wrangling about the city’s attempt to remove the case to federal court. Pidgeon and Hicks claimed, based on state and city law, that the benefits extension was “expending significant public funds on an illegal activity.”  They persuaded a local trial judge to issue a preliminary injunction against continued payment of the benefits while the case was pending, and the city appealed.

The Texas Court of Appeals sat on the appeal while marriage equality litigation proceeded both in the federal courts in Texas – the DeLeon v. Perry case – and nationally. Shortly after the Supreme Court ruled in Obergefell on June 26, 2015, the 5th Circuit, affirming a federal district court ruling, held in DeLeon that the Texas laws banning same-sex marriage were unconstitutional.

Then the Texas Court of Appeals reversed the trial court’s preliminary injunction in the Pidgeon case and sent the case back to the trial court with instructions to decide the case “consistent with DeLeon.” Pidgeon and Hicks sought to appeal this ruling to the Texas Supreme Court, but were initially turned down by that court.  Then the top Republican elected officials in the state – the governor, lieutenant governor, and attorney general – and a bunch of other non-parties filed papers with the Supreme Court urging it to change its mind and allow the appeal, which the court eventually agreed to do.

In its June 30 ruling, the court buried itself in procedural complications. Based on its incorrect conclusion that the Obergefell decision, as amplified by the Pavan ruling, does not decide the merits of this case, and further giving credence to the plaintiffs’ argument that Obergefell cannot be construed to have any retroactive effect because “the Supreme Court acknowledged that it was attributing a new meaning to the Fourteenth Amendment based on ‘new insights and societal understandings,”  the court opined that Pidgeon and Hicks should have an opportunity to “develop” their argument before the trial court.  This contention on retroactivity is not the view that has been taken by other courts, including some that have retroactively applied Obergefell to find that cohabiting same-sex couples in states that still have a common law marriage doctrine can be held to have been legally married prior to that ruling.  Indeed, the federal government even gave Windsor retroactive application, allowing same-sex couples to file for tax refunds for earlier years on the basis that the Internal Revenue Service’s refusal to recognize their state-law marriages under DOMA had been unconstitutional.

The Texas Supreme Court agreed with Pidgeon that the Texas Court of Appeals should not have directed the trial court to rule “consistent with DeLeon” because, technically, the state trial courts are not bound by constitutional rulings of the federal courts of appeals, only by U.S. Supreme Court rulings on questions of federal law. DeLeon could be a “persuasive” precedent, but not a “binding” precedent.  This merits a big “so what?”  After all, the real question in this case is whether Obergefell requires that married same-sex couples are entitled to the “same benefits” as different-sex couples from their municipal employer, and the answer to that could not be more clear, especially after Pavan v. Smith.  (Indeed, Justice Gorsuch’s dissenting opinion in Pavan repeats the same mistaken assertion — that Obergefell does not clearly require the “same” rights and benefits which the Court responds to by quoting from Obergefell to the opposite effect – and is just as disingenuous as Justice Boyd’s decision for the Texas court.)

Now the case goes back to the trial court in Houston, where the outcome should be dictated by Pavan v. Smith and Obergefell and the court should dismiss this case. But, since this is taking place in Texas, where contempt for federal law is openly expressed by public officials, who knows how it will turn out?

Houston Benefits Dispute May Bring Marriage Equality Issue Back to the Supreme Court

Posted on: January 25th, 2017 by Art Leonard No Comments

Conservatives eager to bring the marriage equality issue back to the U.S. Supreme Court after President Donald J. Trump has had an opportunity to appoint some conservative justices may have found a vehicle to get the issue there in an employee benefits dispute from Houston. On January 20, the Texas Supreme Court announced that it had “withdrawn” its September 2, 2016, order rejecting a petition to review a ruling by the state’s intermediate court of appeals that had implied that the U.S. Supreme Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, might require Houston to provide the same spousal health benefits to same-sex as different-sex spouses of City workers.  Instead, announced the Court, it had reinstated the petition for review and scheduled oral argument for March 1, 2017.  Parker v. Pidgeon, 477 S.W.3d 353 (Tex. 14th Dist. Ct. App., 2015), review denied, sub nom. Pidgeon v. Turner, 2016 WL 4938006 (Texas Supreme Ct., September 2, 2016), No. 16-0688, Order withdrawn, motion for rehearing granted, petition reinstated (Jan. 20, 2017).

The plaintiffs in the Houston benefits case, Houston taxpayers Jack Pidgeon and Larry Hicks, had filed a motion for rehearing with active support from Governor Greg Abbott and Attorney General Ken Paxton, both ardent marriage equality opponents eager to chip away at the marriage equality ruling or even to get it reversed. The Texas Supreme Court’s order denying review had been issued over a fervent dissenting opinion by Justice John Devine, who argued for a limited reading of Obergefell, and the Republican leaders’ amicus brief in support of review channeled Devine’s arguments.

Trump’s nomination of a conservative to fill the seat left vacant when Justice Antonin Scalia died last February would not change the Supreme Court line-up on marriage equality. Obergefell was decided by a 5-4 vote, with Scalia dissenting.  However, it is possible – even likely, if rumors of a possible retirement by Justice Anthony Kennedy at the end of the Court’s 2017-18 Term are accurate – that Trump will get an opportunity to replace the author of the Obergefell decision with a more conservative justice in time for the Court’s 2018-19 Term.  Regardless how the Texas Supreme Court rules on this appeal, its interpretation of the scope of Obergefell could set up a question of federal constitutional law that could be appealed to the U.S. Supreme Court, and once the issue gets to the Court, it is possible that the Obergefell dissenters, strengthened in number by new conservative appointees, could take the opportunity to narrow or even overrule the marriage equality decision.

The Houston dispute dates back to 2001, when Houston voters reacted to a City Council move to adopt same-sex partner benefits by approving a City Charter amendment that rejected city employee health benefits for “persons other than employees, their legal spouses and dependent children.” In 2001 same-sex couples could not legally marry anywhere in the world, so this effectively denied benefits to any and all same-sex partners of City employees.  Texas was also one of many states that put firm bans on same-sex marriage into its constitution and family law statute.

After the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in June 2013, Houston Mayor Annise Parker, an openly-lesbian longtime LGBT rights advocate, announced the extension of health benefits to same-sex spouses of City employees. Although same-sex couples could not then marry in Texas, they could go to any of a number of other states to get married, including California and New York and, most conveniently as a matter of geography, Iowa.  Parker and her City Attorney concluded that under the Supreme Court’s reasoning in the DOMA case, United States v. Windsor, 133 S. Ct. 2675, Houston’s city government was obligated to recognize lawfully contracted same-sex marriages of city employees and provide them the same benefits that were accorded to other city employees.  Federal constitutional requirements would override the City Charter ban as well as state law.

Taxpayers Pidgeon and Hicks filed suit in state court, contending that Parker’s action violated the Texas Constitution and statutes, as well as the city charter amendment. They persuaded the trial judge to issue a temporary injunction against the benefits extension while the case was pending.  The City appealed that ruling to the 14th District Court of Appeals, which sat on the appeal as new marriage equality litigation, sparked by the Windsor ruling, went forward in dozens of states including Texas.  A Texas federal district judge ruled in 2014 in the De Leon case that the state’s ban on same-sex marriage was unconstitutional.  The U.S. 5th Circuit Court of Appeals heard the state’s appeal of that ruling in January 2015.  After the U.S. Supreme Court ruled for marriage equality in June 2015, the 5th Circuit issued its decision upholding the Texas district court, 791 F.3d 619, which in turn ordered Texas to allow and recognize same-sex marriages.  This prompted the 14th District Court of Appeals to issue its decision on July 28, 2015.

The Court of Appeals ruling in Parker v. Pidgeon, 477 S.W.3d 353, said, “Because of the substantial change in the law regarding same-sex marriage since the temporary injunction was signed, we reverse the trial court’s temporary injunction and remand for proceedings consistent with Obergefell and De Leon.”  The court did not rule on the merits, merely sending the case back to the trial court to issue a decision “consistent with” the federal marriage equality rulings.  What those rulings may require in terms of city employee benefits is a matter of some dispute.

Pidgeon and Hicks petitioned the Texas Supreme Court to review this court of appeals decision, but the court denied that petition on September 2, 2016, with Justice Devine dissenting. Devine argued that the court should have taken up the case because, in his view, the majority of the court “assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.  I disagree.” He continued: “Marriage is a fundamental right.  Spousal benefits are not.  Thus, the two issues are distinct, with sharply contrasting standards for review.  Because the court of appeals’ decision blurs these distinctions and threatens constitutional standards long etched in our nation’s jurisprudence, I would grant review.”

Justice Devine was mistaken as to the court of appeals decision. That court did not hold in its July 28 ruling that same-sex spouses of Houston employees are entitled to health benefits from the city.  Rather, it ruled that because of “substantial change in the law” since the temporary injunction was issued, the injunction should be reversed and the case sent back to the trial court for “proceedings consistent with Obergefell and De Leon.”  If the trial court, on reconsideration, concluded that Obergefell and De Leon did not require the City to extend benefits to same-sex spouses of its employees, as Justice Devine argued in his dissent, the trial court could still rule in favor of Pidgeon and Hicks.  All the court of appeals directed the trial judge to do was to rethink the case in light of the new federal rulings.

Devine’s argument rests on a very narrow reading of Obergefell.  He interprets the Supreme Court’s decision to be sharply focused on the right of same-sex couples to marry, resting on the Court’s conclusion that the right to marry is a “fundamental right.”  Thus, a state would have to have a “compelling interest” to deny the right, a test that the Supreme Court found was not met.  However, pointed out Devine, the Supreme Court never explicitly said that the federal constitution requires state and local governments to treat all marriages the same, regardless whether they are same-sex or different-sex marriages.  And, he argued, public employees do not have a fundamental constitutional right to receive health insurance benefits from their employer.  Thus, he contended, the state could decide who gets benefits based on its own policy considerations, which the courts should uphold if they satisfy the relatively undemanding “rationality” test that is used when a fundamental right is not at stake.  As to that, he argued that the state’s interest in procreation by married different-sex couples could justify extending benefits to them but not to same-sex couples.

A contrary argument would note that Justice Kennedy’s opinion in Obergefell specifically listed health insurance as one of the many benefits associated with marriage that contributed towards the conclusion that the right to marry was a fundamental right because of its importance to the welfare of a couple and their children.  Similarly, Justice Kennedy did not consider the “procreation” argument persuasive to justify denying the right to marry to same-sex couples.  On the other hand, the Supreme Court did not say anywhere in its opinion that states are constitutionally required to treat same-sex and different-sex couples exactly the same in every respect, ignoring any factual distinctions between them.  Justice Devine’s argument seems strained, but not totally implausible, especially in the hands of a conservatively-inclined court.

Timing is everything in terms of getting an issue before the Supreme Court, especially if the aim of Texas conservatives and their anti-LGBT allies around the country is to get the issue there after Trump has had two appointments.  Once the Texas Supreme Court hears oral argument on March 1, it could take as long as it likes to issue a ruling on the appeal, and it could be strategic about holding up a ruling until it looks likely that any Supreme Court appeal would be considered after the 2017-18 Term of the Court has concluded in June 2018.  After the Texas Supreme Court rules, the losing party could take up to 90 days to file a petition in the Supreme Court.  If the petition arrives at the Supreme Court after the end of its term, that Court won’t decide whether to grant review until the beginning of its new term in the fall of 2018, and if the petition is granted, argument would not take place for several months, giving the parties time to brief the merits of the case.  If the Texas Supreme Court decides to affirm the court of appeals, it is highly likely that Pidgeon and Hicks, abetted by Abbott and Paxton, will seek Supreme Court review.  If the Texas Supreme Court reverses, the City of Houston will have to decide whether to seek Supreme Court review, or whether to adopt a wait-and-see attitude while the trial court proceeds to a final ruling on the merits of the case.  And the trial court could well decide, upon sober reflection, that Obergefell compels a ruling against Pidgeon and Hicks, which would put them back in the driver’s seat as to the decision to appeal to the Supreme Court.

If a second Trump appointee was confirmed while all of this was playing out, the case would be heard by a bench with a majority of conservative justices appointed by Republican presidents, one by George H.W. Bush (Clarence Thomas), two by George W. Bush (Chief Justice John Roberts and Samuel Alito), and two by Donald Trump. Trump’s appointees would be joining three Republican colleagues who filed or signed dissents in the Windsor and Obergefell cases.  Regardless of how the Petitioner frames the questions posed to the Court, the justices are free to rewrite the question or questions on which they grant review.  If a majority of the newly-constituted Court is eager to revisit Obergefell, they could grant review on the question whether Obergefell was correctly decided.  Based on past history, they could reach that issue if a majority wants to do so without signaling its salience in the Order granting review.

Much of this is conjecture, of course. Justice Devine was a lone voice dissenting from the September 2 order to deny review in this case.  But that order was issued at a time when national pollsters were near unanimous in predicting that Hillary Clinton would be elected and, consequently, would be filling the Scalia vacancy and any others that occurred over the next four years. The political calculus changed dramatically on November 8 when Trump was elected. Even though he has stated that he accepts marriage equality as a “settled issue,” his announced intention to appoint Justices in the image of Scalia and to seek reversal of Roe v. Wade, the Court’s seminal abortion decision from 1973, suggests that he will appoint justices who have a propensity to agree with the Obergefell dissenters that the marriage equality ruling was illegitimate.  (Chief Justice Roberts wrote in his dissent that it had “nothing to do with the Constitution.”)  Although the Court has frequently resisted efforts to get it to reverse highly consequential constitutional decisions, it has occasionally done so, most notably in the LGBT context in its 2003 ruling in Lawrence v. Texas, striking down a state sodomy law and overruling its 1986 decision in Bowers v. Hardwick.

After the election, many LGBT rights organizations issued statements to reassure people that marriage equality would not immediately disappear after Trump took office. That remains true.  A constitutional ruling by the Supreme Court can only be changed by the adoption of a constitutional amendment, which Democrats can easily block in Congress, or overruling by the Supreme Court, which requires that a new case come up to the Court at a time when a majority of the Court is receptive to the overruling argument, which seems to be at least two years off from now.  But these statements, including those by this writer, conceded that in the long run it was possible that Trump’s Supreme Court appointments and new appeals headed to the Supreme Court might come together to endanger marriage equality.  This new development in the Houston benefits case shows one way that could happen.

Formalistic Texas Appeals Court Refuses to Issue a Change of “Sexual Designation” for Transgender Petitioner

Posted on: August 16th, 2016 by Art Leonard No Comments

The Texas 14th District Court of Appeals in Houston upheld a trial judge’s denial of a transgender man’s request for a “gender designation change” embodied in a court order on August 2.  In re Rocher, 2016 WL 4131626, 2016 Tex. App. LEXIS 8266.  The court’s ruling turned on the absence of any Texas statute or regulation specifically authorizing courts to grant such requests.

According to the opinion for the three-judge panel by Justice Martha Hill Jamison, the petitioner, “formerly known as Aidyn Rocher,” filed an Original Petition for Change of Name of Adult in the Harris County District Court on January 28, 2015, almost exactly six months before the U.S. Supreme Court issued its marriage equality ruling of Obergefell v. Hodges.  At the time, same-sex marriage was not available in Texas, so a sexual designation would be important for somebody who sought to get married.  The Petition in this case sought not only a legal change of name to Alex Winston Hunter, but also a change of “sexual designation” from female to male.  The petitioner was represented by a lawyer, who is not named in the court’s opinion.

The lawyer presented two prior Texas court opinions to the trial judge to support the request for the change: In re Estate of Araguz, 443 S.W.3d 233 (Tex. App. 2014 – petition for review denied), and In re N.I.V.S., 2015 WL 1120913 (2015).  Then Hunter testified briefly, with all the testimony relating to the name change request, satisfying the requirement that the court make findings about the date and place of birth, the lack of a felony criminal record (felons may not legally change their names in Texas), and evidence that a name change is not being sought to evade creditors.  At the end of the hearing, petitioner’s lawyer pointed out to the court that under the Texas Family Code “proof of an order relating to a sex change could be used to prove identity for purposes of an application for a marriage license.”  At the end of the hearing, the trial judge granted the name change but denied the request for a “change in gender designation,” finding that there was no specific authority under Texas law authorizing a court to make such a change in designation.

Texas, in common with most (but not all) states, has a statutory procedure for changing the gender designation on a birth certificate. The petitioner in this case, however, was born in Pennsylvania, and Texas courts have no authority to order another state to issue a new birth certificate.  Furthermore, Texas law does not authorize issuance of a birth certificate for somebody who was not born in Texas.  The petitioner could try to get a new birth certificate from Pennsylvania, but he argued that this would be unduly burdensome, and that since Texas law does, in a broad sense, recognize the reality of gender transition by allowing such changes on birth certificates, the court should be able to issue such a declaration in the context of a name-change case.

The court discounted the precedential value of the cases that petitioner’s lawyer had presented. In Araguz, the court was dealing with a dispute about inheritance rights of a transgender woman who had married a Texas man, and the court of appeals had concluded, citing a Texas statute authorizing county clerks to accept a copy of a “court order relating to the applicant’s name change or sex change” in processing a marriage license application, that “Texas law recognizes that an individual who has had a ‘sex change’ is eligible to marry a person of the opposite sex.”  But, wrote Justice Jamison, “The Araguz court did not, however, suggest that the section authorized a trial court to order a change in a person’s gender designation.”  In the other case, N.I.V.S., although the court of appeals had noted that “one of the parties had ‘obtained a court order changing his identity from female to male,’” citing the same section of the marriage statute, the court in that case had stated, “because it is not necessary to the disposition of this appeal, we do not comment on the effect, if any, of such an order.”

Thus, although some past Texas court opinions had intimated that court might, or actually had, issued orders recognizing changes of sex designation, this court found that none of those cases directly answered the question whether a Texas court has authority to do such a thing, and this panel of judges was unwilling to take that step without some direct prior precedent or statutory authorization.

The petitioner had also argued on appeal that in light of Obergefell, it would be unconstitutional for the courts of Texas to refuse to issue such an order if presented with appropriate evidence.  Unfortunately, however, the trial hearing took place before Obergefell, so this claim had not been presented to the trial court, and appeals courts generally refuse to consider arguments that were not raised at trial and thus “preserved” for review.  A good argument can be made that the Supreme Court’s commentary in that case, and in the prior cases of Lawrence v. Texas and United States v. Windsor, would support a claim that the liberty protected by the Due Process Clause of the 14th Amendment would include a right of self-determination in matters of gender identity, as a matter of respect for individual dignity.  But this court ruled out any consideration of that argument.

Indeed, in a footnote the court also stated that because it had found lacking any authority to issue such an order, it “need not in this case take any position regarding what type of evidence could suffice to demonstrate a gender change.” This is a much-contested issue in other jurisdictions, especially focusing on whether and the degree to which a transgender person must undergo surgical alteration before they can claim to have transitioned sufficiently to change their sex for legal purposes.

Of course, after Obergefell it is unnecessary for a transgender person to get a legal designation of sex in order to marry the person with whom they are in love, because the gender of the parties has been rendered irrelevant.  But sex still matters for other purposes, and particularly for legal identification documents such as driver’s licenses and voter identification card for non-drivers, so the unavailability of a mechanism in Texas for transgender residents born in other jurisdictions to obtain such a declaration from a Texas court is another unnecessary stumbling block to getting on with one’s life.

Many years ago, a more empathetic court, the Maryland Court of Appeals, ruled in In re Heilig (2003) that a Maryland trial court could draw upon its general equitable powers to declare a change of sex designation for a transgender applicant who was born, coincidentally, in Pennsylvania.  And, interestingly, as of August 8, 2016, new regulations in Pennsylvania allow a transgender person born in that state to obtain a new birth certificate by providing certain documentation to the Health Department, including a declaration under oath by a doctor that the individual has received appropriate clinical treatment to be considered male or female, as the case may be, without getting into specifics.  The necessary information is easily available on several websites.  So the petitioner in this case can download the necessary forms and obtain a new birth certificate from Pennsylvania with minimal expense and fuss.  Unfortunately, not every state is so accommodating, and some still refuse to issue new birth certificates for this purpose.

Texas Appeals Panel Denies Transgender Man Standing to Bring Paternity Action Concerning Children He Was Parenting

Posted on: January 30th, 2016 by Art Leonard No Comments

 

A three-judge panel of the Court of Appeals of Texas in San Antonio issued a new opinion on January 27, reaffirming a prior ruling issued on August 12 of last year, that a transgender man who had been parenting children adopted by his long-time former female partner lacked standing to seek custody and visitation rights because he didn’t assert such a claim shortly after the couple broke up. At the same time, the full bench of the Court of Appeals denied a petition for en banc review of the prior ruling, which conditionally granted a writ of mandamus sought by the children’s mother challenging the trial court’s jurisdiction over the case.  In re Sandoval, 2016 WL 353010, 2016 Tex. App. LEXIS 754, 756, 758, 759.  Justice Jason Pulliam wrote the new decision for the unanimous three-judge panel.  Justice Patricia O. Alvarez, who was not on the panel, wrote a concurring opinion on the vote to deny en banc reconsideration.  Justice Luz Elena D. Chapa, also not on the panel, wrote a dissent from the denial of en banc reconsideration, claiming that it was procedurally improper for the panel to have granted the writ.  Justice Rebecca C. Martinez, also not on the panel, wrote a dissent as well, going further to disagree with the panel’s conclusion on the merits, arguing that the trial court correctly allowed the transgender man to maintain his suit.

At the heart of the case is the question whether a transgender man can bring a paternity action under the Texas Family Code, or whether standing to bring such actions is limited to sperm-producing men who could conceivably be the biological father of the children at issue.

Born a genetic female, Dino Villarreal “self-identified as a male for all of his adult life,” wrote Justice Pulliam in the panel opinion. “Dino moved in with [Sandra] Sandoval in 1994 and lived with her, and later the two children [who Sandoval had adopted in 2002 and 2004], until January 2011 when Dino and Sandoval separated.”  Dino continued to have contact with the children until sometime in 2013, after which Sandoval refused further contact.  Dino filed a petition to adjudicate parentage in December 2013, almost three years after the parties had split up.  Sandoval objected to Dino’s standing, and the trial court agreed with her, dismissing the petition, a ruling that was affirmed by the Court of Appeals on March 11, 2015.  Sandoval successfully argued that when the petition was filed Dino was legally a woman and thus did not fit into any of the categories under the Texas Family Code conferring standing to initiate a parentage adjudication.

However, on January 3, 2014, shortly after having filed that petition, Dino had instituted a separate action, eventually obtaining an Order Granting Change of Identity, which “acknowledged his name change from Diana to Dino and included the following finding: ‘3. Petitioner’s sex is male.’ Following the trial court’s findings, the order concluded, ‘IT IS ORDERED that Petitioner’s identity is changed from female to male.”  This was an unopposed action, brought under a 2009 statute that authorized Texas courts to make gender declarations in cases of transition.

Dino then filed a second petition to adjudicate parentage under Texas Family Code Ann. Sec. 102.003(a)(8), which authorizes a suit by “a man alleging himself to be the father of the minor children,” asserting that he was now filing as a “man” and thus had standing. He sought temporary orders appointing him joint managing conservator of the two minor children and equal periods of possession and access.  Sandoval filed a new plea challenging the court’s jurisdiction.  This time, the trial court sided with Dino, finding that because he was now legally “male,” he could proceed under the provision authorizing such an action by “a man alleging himself to be the father of the minor children.”  The trial court issued a temporary order giving Dino visitation rights with the children while the case was pending, while Sandoval petitioned the court of appeals for a writ of mandamus, challenging the jurisdictional order.

Under normal rules of Texas procedure such a writ would be out of order, since the trial court’s order was not a final judgment in the case and Sandoval could obtain relief by litigating the case to a final order and then appealing in the normal course if Dino had won. The panel decided, however, that this was not an ordinary case, quoting a 2014 ruling by the Corpus Christi branch of the Court of Appeals, In re First Mercury Ins. Co., 437 S.W. 3d 34, recognizing “several exceptions to this general prohibition against mandamus review of a trial court’s order denying a plea to the jurisdiction.  In short, a remedy by appeal may be an inadequate remedy when there are extraordinary circumstances present.”  “We conclude,” wrote Justice Pulliam, “that eventual review of the jurisdictional question on appeal from a final judgment would be inadequate in this instance.  Mandamus review is therefore appropriate.”

Referring to the statutory scheme for litigation concerning parent-child relationships, Pulliam observed that “standing to file suit under the Texas Family Code is limited. A suit to establish a parent-child relationship may only be brought by certain individuals falling within identified categories,” and that it was a question of “straight statutory construction of the relevant statute” to decide whether a petitioner had standing.  Dino was relying on his status as a “man alleging himself to be the father of a child filing in according with Chapter 160.”  Chapter 160 says that such a suit can be brought by “a man whose paternity of the child is to be adjudicated.”  Texas courts have stated that standing must exist at the time the suit is filed and be maintained throughout the suit.  This was the ground on which the court had affirmed dismissal of Dino’s first petition, which was filed before he obtained the gender declaration in the separate proceeding.

This time, Dino argued that he got the declaration that he is “male” before filing this second case, so he should be home free on standing, but the court disagreed.  Justice Pulliam asserted that the 2009 statute authorizing the gender declaration was enacted to deal with the problem of marriage, in response to prior litigation where Texas courts had refused to recognize change of gender in determining who could marry whom.  As far as this panel of the court is concerned, Dino’s gender change rendered him “male” for purposes of the state’s marriage law as it then was, but not for purposes of the Family Code provisions on standing to adjudicate parentage.  “While the clear language of the Family Code recognizes such an order as sufficient to provide proof of Dino’s identity and age for purpose of obtaining a marriage license,” wrote Pulliam, “we conclude that it is not sufficient to adjudicate parentage under subsection 160.602(a)(3). . .  If all that was required for standing was to be a man, then any man could maintain a suit to adjudicate parentage to any child.  We do not believe that to be what the Texas Legislature intended.”

“In this case,” wrote Pulliam, “Sandoval’s children are adopted and there is no contention that Dino is the biological father. A man alleging ‘paternity’ is a man asserting standing as the biological father of the subject children.”  He pointed out that relevant Texas Family Code provisions define “paternity index” and “probability of paternity” “in relation to the determination the likelihood that a man is the biological father of a child.”  Even had Dino been identified male at birth and capable of impregnating a woman with sperm through intercourse or donation, he could not have made this “parentage” claim regarding the children at issue in this case whose procreation was accomplished by earlier biological parents prior to their adoption by his then-partner, Sandoval.  “The only basis under which Dino attempts to assert that he has statutory standing as ‘a man whose paternity of the child is to be adjudicated,’ is that he acted as a parent to the children and provided actual daily care for them from the time of their adoption until his relationship with Sandoval ended in 2011.  Dino’s status as a person with actual care, control and possession of the children may have conferred standing to file suit had he done so within ninety days of the date on which his actual care, control and possession of the children terminated” under Tex. Fam. Code Ann. Sec. 102.003(a)(9), but he waited much too long to avail himself of that provision.  In other words, the court was unwilling to let Dino use Section 160 as a mechanism for giving any legal effect to a claim to de facto or equitable parental status.   Pulliam asserted that since Texas had adopted a very specific statutory scheme governing standing, the court was limited to construing and applying those provisions.

The Court of Appeals panel conditionally granted the petition for writ of mandamus and directed the trial court to set aside its April 17, 2015, order that had denied Sandoval’s plea to the jurisdiction, so Dino’s petition was to be dismissed for lack of standing. An actual writ will be issued to the trial court if it refuses to comply.  Presumably a dismissal would set up the case for Dino to file an appeal, which he would undoubtedly lose in the court of appeals, and he could then try to bring an appeal to the Texas Supreme Court.  But this would undoubtedly stretch out for years during which he will be denied contact with the children, perhaps so long that they would no longer be minors once the case is concluded.

As noted above, while reaffirming its August 12 ruling, the court also denied a motion filed by Dino on August 26 for en banc reconsideration, which drew three separate opinions from judges who were not on the three-judge panel.

Justice Alvarez concurred, expanding on the court’s view of the limited effect of the separate court order declaring Dino to be “male.” She pointed out that that court order “does not mention the Texas Family Code or address its effect under the Texas Family Code,” which “defines ‘man’ as ‘a male individual of any age.’  The Texas Family Code does not, however, define the term ‘male,’” she continued, observing that when the legislature does not define a word, the court will apply its “ordinary meaning,” for which it usually looks to a dictionary definition.  Reverting to the early decision by the Court of Appeals that had affirmed dismissal of Dino’s first petition, “we cited Webster’s Dictionary which defines ‘male’ as ‘an individual that produces small usually motile gametes … which fertilize the eggs of a female.’”  Justice Alvarez asserted that this definition “has not changed and is controlling in this mandamus.  Therefore, regardless of his possession of a court order changing his identity, Villarreal still does not meet the statutory definition of ‘man’ under the Texas Family Code.”

The judge also pointed out that Dino could have brought an action, as the panel noted, had he moved quickly after the parties split up. “By waiting until November of 2013 to file, Villarreal missed his opportunity because he could no longer meet the statutory requirement of having had care, control, and custody of the children for at least six months ending not more than 90 days before he filed his petition.”  This argument is frustrating to read, since it seems clear that Dino would have perceived no need to file suit until his contact with the children was cut off by Sandoval in 2013, shortly before he filed his first petition.

Alvarez characterized the standing ruling in this case as “heart-wrenching and sad,” but said that “an appellate court is bound by the law and not emotions,” so she agreed with the decision to deny en banc reconsideration of the panel decision.

Justice Chapa dissented from the voting denying en banc reconsideration. She focused her argument on what she saw as a conflict between this ruling and prior rulings of the Texas courts about when it was appropriate to allow a party who loses a plea to jurisdiction to obtain interlocutory review of that decision.  She argued that the cases relied upon by the panel majority to grant mandamus review were all distinguishable.  “Absent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision or an intervening and material change in the statutory law, a panel should not ignore the prior holding of another panel of this court,” she argued.  Thus, the panel should have denied the petition for mandamus review.  She also rejected the panel’s conclusion that this case presented “extraordinary circumstances,” pointing out that there was lots of child custody litigation in the Texas courts, and this ruling could open the floodgates for mandamus petitions every time a trial court rejected a respondent’s claim that the petitioner lacked standing to seek custody.

Justice Martinez was the sole dissenter on the merits, writing a sophisticated argument engaging concepts of sex and gender and invoking Obergefell along the way.

She pointed out that as far back as 1985 Texas had enacted a statute governing statutory interpretation that required gender neutrality in construing statutes. “The Legislature’s clear intent to apply its provisions gender-neutrally is the context within which our court should construe ‘each rule adopted under a code,’” she wrote, quoting from the statute.  “Further, the Texas Legislature had also previously adopted an understanding of gender that is broader than one’s anatomy at birth by granting legal recognition as a ‘man’ to a person born anatomically female.  A court of law ordered legal recognition to Dino’s identity as a man regardless of his anatomical sex, without exclusion to its applicability.  That he was born female is now altogether secondary.  A majority of this court determines this case by addressing and viewing gender as inextricable from anatomy, by disregarding Dino’s legally-recognized gender-identity as male, and by forcing a narrow definition of being a ‘man’ without specific and evident direction from the Legislature.  Dino asked for equal dignity in the eyes of the law, and both the Constitution and the trial court granted him that right.  There is no reasonable explanation to deny his identity under every provision of the law and, in particular, the Family Code.  The statute does not impose biological sex as the fixed marker of gender identity, nor should it be interpreted to use it as a mechanism for discrimination.  That Dino lacks standing stems solely from the fact that he is transgender.”  The reference to “equal dignity,” or course, is to the term used by Supreme Court Justice Anthony Kennedy in his concluding remarks in Obergefell, where he held that the states had unconstitutionally denied “equal dignity” to same-sex couples by refusing to allow them to marry or to recognize their marriages.

Martinez pointed out that the U.S. Supreme Court’s decisions in Windsor and Obergefell concerned, importantly, the harm to children when their parents’ relationships were not recognized.  “The Supreme Court saw no reasonable explanation for that.  This should suggest to us that the Court’s analysis would extend to cases not simply involving marriage, but also to eligibility for adoption and custody.  For our en banc court to read the statute to now encompass marriage and not standing to bring suit to adjudicate parentage is thus problematic.” She supplemented this argument with reference to other streams of fundamental rights doctrine and standing doctrine.

“There is no prohibition against applying Dino’s legal identity as male to every other provision of the law, and this court is without license to limit the consideration of one’s gender identity exclusively for purposes of marriage,” she wrote. “This court cannot create a separate entrance to the courthouse for Dino, nor close the door to him as I believe the court’s opinion does.  It disappoints me that we would sanction treating an individual differently than how the law allows, and I therefore encourage further review of this decision.  Dino is a male as a matter of law.  Whether he can meet the burden to prove his allegation of paternity which is to be adjudicated is not yet before us to review.”

Unfortunately, Justice Martinez’s lone dissent is a single voice in the wilderness on the Texas Court of Appeals. And the notion that a “man” or a “male” for purposes of Texas law (other than marriage) is limited to individuals who can produce sperm that are capable of biological procreation seems absurd.  Would this mean that after a vasectomy a person is no long a “man” for purposes of the Texas Family Code or any other Texas statute?  What about a person born male who suffers an accident or medical complication prior to puberty and thus never attains the capacity to generate motile sperm?  Not a “man”???  Furthermore, after Obergefell, the “exclusive purpose” that the court of appeals panel finds for the statute on declaration of gender has been rendered nugatory, since gender identification is no longer relevant to the right to marry under the 14th Amendment.  Does this mean that the Texas statute now has no purpose, since it doesn’t matter whether one is legally male or female in applying for a marriage license?  Or, as Justice Martinez argues, does the gender identity statute remain significant for all those instances in Texas law apart from the right to marry where gender is relevant to a statutory right, privilege or benefit?  The court’s ruling may have many ramifications that it failed to consider.

A news article dated January 21, 2015 in OutInUSA.com had an interview with Dino, indicating he was represented in the litigation by Deanna L. Whitley, who opined that the argument before the court of appeals panel that had then recently been held seemed to have gone well.  They must have been quite disappointed by the January 27 ruling.

The Power of Full Faith & Credit and a Jury

Posted on: September 22nd, 2014 by Art Leonard No Comments

Putting together the power of the U.S. Constitution’s Full Faith and Credit Clause and a verdict by a jury who got to see the parties testify, a Texas gay co-parent has preserved his status as “sole managing conservator” of the child he and his former partner/spouse conceived with the help of a gestational surrogate.  Herein lies a somewhat complicated tale providing new evidence of the extraordinary developments in LGBT family law over the past few years.  The case is Berwick v. Wagner, 2014 Westlaw 4493470.

Jerry Berwick and Richard Wagner began their relationship with each other in 1994.  They were legally married in Canada in 2003, and registered as domestic partners in California in 2005, but lived together in Houston, Texas, beginning in 1997.  They wanted to have a child through gestational surrogacy, and made a gestational surrogacy agreement with a married California woman in 2005.  A donated egg was fertilized with Berwick’s sperm and the resulting embryo was implanted in the surrogate, who gave birth to a son, called C.B.W. by the Texas Court of Appeals in Houston in its September 11 decision affirming the jury verdict.  Following a procedure commonly used in California, the men filed a court action before the child was born, through which a California court entered an order titled “Judgment of Paternity,” declaring that Berwick and Wagner were each to be a “legal parent” of C.B.W., ordering the hospital to list the two men as the child’s parents on the birth certificate, and declaring, consistent with the surrogacy agreement, that neither the birth mother nor her husband were legal parents of C.B.W.  After the child was born, Berwick and Wagner brought him back to Houston where they lived together as a family for several years, until Berwick ended his relationship with Wagner.

Berwick “got religion,” decided he wasn’t really gay, and ended up marrying a woman whom he met on-line.  When Berwick ended the relationship, Wagner took action to preserve his relationship with his son, filing a Suit Affecting the Parent Child Relationship in the Texas trial court in Harris County, seeking an order that Wagner and Berwick be appointed “joint managing conservators” of C.B.W.  This would give them equal parental rights, consistent with the California court order.  Berwick responded by arguing that as the biological father he should be appointed sole managing conservator.  He contended that Wagner lacked standing to seek custody because he was not “biologically related” to the child.

In a separate legal proceeding provided by Texas law, Wagner registered the California “Judgment of Paternity” in the Harris County court, and the trial court “confirmed” the California order, thus recognizing Wagner for purposes of Texas law as a legal parent of C.B.W., thus giving him standing to seek appointment as a managing conservator of the child.  Berwick appealed, the court of appeals affirmed the trial court’s order, and the state supreme court refused to review the case.

Thus, the original suit filed by Wagner went to trial.  In Texas, these cases are tried before a jury, which is charged with deciding who should be appointed as conservators for the child.  The jury decided that Wagner should be the sole managing conservator, appointing Berwick to the lesser status of possessory conservator, meaning he would be entitled to child visitation and some participation in decision-making for the child.  However, Wagner, the non-biological father, emerges as the main custodian of the child with the greater share of decision-making authority.

Berwick appealed this decision, as well as the trial court’s rejection of Berwick’s request that C.B.W.’s name be changed to omit the W.

In affirming the ruling, the court of appeals gave great weight to the full faith and credit clause of the Constitution.  A California court with appropriate jurisdiction of the parties had issued a judgment naming both men as legal parents of the child.  After quoting the federal constitutional provision, Chief Justice Sherry Radack wrote for the court, “Texas courts have thus consistently recognized that the ‘full faith and credit clause requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states.'”

“This full faith and credit has been repeatedly applied in Texas to other state’s adjudication of parentage,” Radack continued.  Referring to the California judgment that Wagner had registered with the Harris County court, Radack wrote, “This Court has already held that the judgment was properly registered in Texas, and that the California court had jurisdiction to enter the judgment.  The trial court correctly decided that this final, unappealed judgment adjudicating Wagner as C.B.W.’s parent — a judgment entered at the request of Berwick, Wagner, and C.B.W.’s surrogate mother and her husband — is entitled to full faith and credit.  And none of the arguments Berwick advances in support of his position that the trial court erred are supported under Texas law.”

Berwick was relying primarily on a public policy argument, grounded in the contention that a child in Texas can have only one legal father at a time and that surrogacy agreements under a Texas statute are unenforceable unless the intended parents are a married heterosexual couple.  However, wrote Radack, “Berwick cites no authority for deeming a foreign paternity judgment to be so repugnant to Texas policy to render it void and subject to collateral attack.  And Berwick’s arguments ignore the strong state public policies favoring stability and finality in matters of parentage evidenced by numerous statutes.”

The court also found that the question whether Berwick was the child’s biological father was essentially irrelevant to the outcome, rejecting his contention that as biological father he was solely entitled to custody of the child.  Since the Texas courts recognize Wagner as a parent of the child through operation of the California judgment, Berwick’s biological tie to the child is irrelevant to this lawsuit, because all legal parents are treated equally, whether they became parents through biology, adoption, or some other legal process.  In a custody dispute between legal parents, the court’s job is to decide what is in the best interest of the child, and Texas, unlike most other states, gives that task to a jury.  The court of appeals found that the trial record was full of evidence that would support the jury’s determination that Wagner would be the preferable managing conservator, since he was more likely to preserve the child’s relationship with his other father, while Berwick (and his wife) were hostile to Wagner playing any parental role in the child’s life.

“Specifically,” wrote Radack, “the jury had already heard about Berwick telling Wagner that he would never work with him to co-parent because Wagner needed to move on and ‘get his own family,’ ‘his own little boy.’  The jury had also heard recordings of Berwick on different occasions telling Wagner that C.B.W. is ‘not your child,’ ‘not your son,’ accusing Wagner of ‘destroying my child,’ and mocking Wagner for being ‘in denial,’ and pretending that C.B.W. is actually his son.”

Berwick also attacked the verdict by arguing that several potential jurors were excluded as victims of “religious discrimination.”  They were questioned about their views about the parties’ sexuality and marital status, and several potential jurors made statements suggesting that they could not, in the opinion of the trial court, give an unbiased consideration to the case.  “We conclude that the trial court did not abuse its discretion in finding these jurors to be disqualified,” wrote Radack.  “The trial court did not strike every panel member who indicated they might have religious objections to homosexuality; rather, the court struck only those jurors who unequivocally indicated that they held such strong convictions that they could not base their decisions on the law and evidence.”

The opinion included lengthy analysis of the trial record, from which the court concluded that “there is factually sufficient evidence to support the jury’s finding that appointing Wagner as sole managing conservator is in C.B.W.’s best interest,” and rejecting Berwick’s argument that the trial judge erred by denying Berwick’s request to change C.B.W.’s name to eliminate Wagner as his surname.  “Given that C.B.W.’s legal name was established by the California court at Berwick’s request and that Berwick does not argue here that a name change is in C.B.W.’s best interest,” wrote Radack, “we cannot conclude that the trial court erred.”

Wagner is represented by attorney Ellen A. Yarrell.  Berwick is represented by Austin R. Nimocks, a name that will be familiar to those who have been following the federal appellate arguments over marriage equality, since he is one of the attorneys who has been arguing against marriage equality in the courts, and is generally associated with religious opposition to same-sex marriage.

Transgender Woman Wins New Trial on Inheritance From Her Husband

Posted on: February 14th, 2014 by Art Leonard No Comments

A three-judge panel of the Texas Court of Appeals ruled on February 13 that Nikki Araguz, a transgender woman who is the surviving spouse of Texas firefighter Thomas Araguz, is entitled to a trial of the question whether her marriage with Thomas was valid. Thomas died without a will, and his mother and ex-wife (suing on behalf of his children) contend that the marriage was not valid and thus cannot provide the basis for an inheritance for Nikki. Estate of Thomas Trevino Araguz III, 2014 Tex. App. LEIS 1573 (Tex. App., 13th Dist.).

Born Justin Graham Purdue in California in 19775, Nikki Araguz grew up in the Houston area and self-identified as female from a very early age. Indeed, evidence related by Chief Justice Rogelio Valdez in the opinion for the court suggests that Araguz always dressed as female. At eighteen, Araguz was diagnosed as having gender dysphoria, and began treatment, including hormone therapy and living as a woman. When she was 21, she filed a petition in the Texas District Court for a name change to Nikki Paige Purdue, which was granted by the court in 1996. She then filed an application in California to amend her birth certificate to show her new name, which was granted. She used the new birth certificate when she obtained a driver’s license in Kansas identifying her as female, and then used that license to get a Texas driver’s license, also indicating she was female.

On August 19, 2008, Nikki and Thomas Araguz applied for a marriage license in Wharton County, Texas. The license identifies Nikki as “woman.” The wedding was held on August 23. At that time, Nikki had transitioned in all respects except one: she had not yet undergone sex reassignment surgery, a procedure for which she had been saving money all her adult life. In October 2008, a few months after her marriage, she had the procedure, which was performed in Texas by Dr. Marci Bowers.

On April 28, 2010, Thomas gave a deposition in a family court proceeding involving the custody of the children from his first marriage, in which he stated, under oath, that he did not know that Nikki had undergone genital reassignment surgery, or that Nikki was “formerly male” or had undergone any type of “gender surgery.” Thomas testified in the deposition that Nikki always represented herself as female before their marriage. In the current proceeding, Nikki alleges that she and Thomas had agreed to take the position that she was female from birth, but Thomas was fully aware of the facts when they were married.

Thomas died on July 3, 2010, without a will. Less than two weeks later, Nikki filed a petition in San Francisco, California, Superior Court, seeking a new California birth certificate specifically designating her as female, which was evidently a detail she had overlooked when a decade earlier she had applied for a birth certificate showing her new name. This was granted by the court and California issued a new birth certificate designating Nikki as “female” on August 30, 2010, almost two months after her husband died.

Under rules of intestate succession, a surviving wife is the principal heir of a man who does not leave a will. If there are surviving children, the estate is split between the widow and the children. If there is no surviving spouse, a surviving parent may inherit, and surviving children are legal heirs as well. In this case, Thomas’s mother, who otherwise would not inherit, filed a lawsuit seeking appointment as administrator of her son’s estate and asking the court to declare that his marriage to Nikki was a “void” same-sex marriage, barred by Texas law. Thomas’s ex-wife also filed suit on behalf of the two minor children, also arguing that the marriage with Nikki was void.

In response, Nikki sought to vindicate her claim to be a surviving spouse, arguing that she was a woman at the time of her marriage. In support of this claim, she presented an affidavit from Dr. Collier Cole, a gender identity expert, who asserted that Nikki would be recognized as a woman at the time she married.

Another fact that is not part of Nikki’s story is also relevant. In 1999, the Texas Court of Appeals ruled in Littleton v. Prange that a marriage between a transsexual woman and a man was void as a same-sex marriage, regardless whether the woman had fully transitioned before the marriage. The Littleton court insisted that one’s gender as identified at birth was fixed for purposes of the marriage law, because no medical or surgical procedure could alter one’s genetic makeup and somebody born male could not be provided with female reproductive capacity. In 2009, the Texas legislature amended the state’s Family Code to provide that “an original or certified copy of a court order relating to the applicant’s name change or sex change” could be “proof of identity and age” for purposes of getting a marriage license. Thus, an important question in this case is whether the 2009 amendment had overruled Littleton v. Prange, in effect authorizing marriages between transsexual women and men (or vice versa).

The trial judge in Wharton County had granted summary judgment to Thomas’s mother and ex-wife, and denied Nikki’s motion for summary judgment, evidently finding that Littleton was a controlling precedent and that, as she still had male genitals when she was married, this was a void marriage between two men.

The court of appeals disagreed. The court found that the 2009 amendment had actually overruled Littleton, making it possible for a transgender woman to marry a man by using a court order relating to a name change or sex change as “proof of identity.” This overruling took place after the marriage of Nikki and Thomas, but before Thomas’s death. This does not end the case by any means, because the parties hotly contest whether Nikki was a woman at any relevant time from the date of the marriage until the date of Thomas’s death. Nikki had not had gender reassignment surgery until after the marriage, and did not obtain a new birth certificate specifically designating her as female until after Thomas’s death. It seems clear from the facts that Thomas’s affidavit given in the custody proceeding was false, as it is unlikely that a man who married a woman who had male genitals at the time of the marriage and who did not undergo sex reassignment surgery until several months into the marriage could possibly be “unaware” that his spouse had previously been a man or had undergone a gender-related medical procedure.

The Texas legislature’s 2009 amendment does not provide any clarity or guidance by setting specific standards for determining when a court can give an order relating to a sex change, so a determination must be made, probably as part of further litigation in this case, whether a person with male genitals can be considered female for purposes of the marriage law, based on the court order granting a name change with the corroborating evidence of a birth certificate indicating the new name and a driver’s license designating the individual as female. Dr. Cole, the only expert witness in the case so far, testified by affidavit that the determination of gender does not depend on surgical alteration, the most important factors being that the individual had been diagnosed with gender dysphoria and had lived in the preferred sex for at least a year, during which hormone treatment was taking place. The plaintiffs in this case (the mother and the ex-wife) had not presented any expert witness to counter this testimony, but the court said that the undisputed evidence that Nikki still had male genitals at the time of the marriage was sufficient to place in issue what her sex was at that time, at least for purposes of a trial as to the validity of the marriage. Texas recognizes the concept of informal marriage, under which the marriage of Nikki and Thomas could be valid if Nikki was legally female at any time before Thomas’s death, even if she would not have been considered female at the time of the marriage ceremony.

The court stated that the concept of gender dysphoria was not a matter of common knowledge, or generally within the expected knowledge of typical jurors or judges, so it was necessary to consider expert testimony in determining the answers to the factual questions in this case. Consequently, it was error for the trial judge to grant summary judgment, especially when the only expert testimony in the record, from Dr. Cole, supported Nikki’s claim that she was female when she married Thomas. It may be that as this case is litigated the Texas courts will give legal effect to the Standards of Care recognized by the World Professional Association for Transgender Health, under which Nikki would be deemed female as of the date of her wedding. Clearly, this court finds that the 2009 statutory amendment overruled Littleton, so it is possible for somebody who has been through a “sex change” — whatever that involves — to marry consistent with their gender identity.

Other lawsuits are pending in Texas challenging the state’s ban on same-sex marriage. Were the ban to be invalidated, same-sex marriages would not be void in Texas, and it would be clear that transgender people can marry any willing partner, regardless of sex, who is interested in marrying them and not otherwise disqualified by virtue of age, disability, or close legal relationship. But until marriage equality becomes a reality in Texas, this case may serve to provide the basis for transgender people to marry the partner of their choice.