New York Law School

Art Leonard Observations

Posts Tagged ‘transgender man’

New Jersey Court Grants Name Change to Trans Teen in Case of “First Impression”

Posted on: July 1st, 2017 by Art Leonard No Comments

In what the court characterized as a matter of “first impression in this state,” New Jersey Superior Court Judge Marcia Silva granted a transgender teenager a change of name from Veronica to Trevor on March 17. “At the parties’ request,” wrote Judge Silva, “this court has used the parties’ real names.  It was also Trevor’s desire that his name be used in this opinion.”  The opinion was approved for publication on June 28.  The case is Sacklow v. Betts, 2017 N.J. Super. LEXIS 85, 2017 WL 2797437 (Middlesex County).

While this may have been a case of first impression in New Jersey in terms of published court opinions, Trevor is not the first transgender minor to get a court-approved name change. Gavin Grimm, a transgender boy from Virginia whose lawsuit against his school district to gain appropriate restroom access is still pending before the federal appeals court in Richmond even though he recently graduated from Gloucester County High School, received a legal name change, as have some other transgender teens who are involved in litigation against their schools.

The case was originally contested. Trevor’s parents were divorced in 2011 and have joint custody, although Trevor lives with his mother, Janet Sacklow.  His father, Richard Betts, consented to Trevor beginning hormone treatments in 2014, first to suppress menstruation and then, in 2016, testosterone to begin masculinizing his body.  However, Richard was opposed to the name change.  Janet filed the petition seeking the name change on Trevor’s behalf on September 12, 2016, naming Richard as the defendant.  He did not drop his opposition until after he heard Trevor testify during a hearing on March 7.

The biggest issue for Judge Silva was whether the court had any judgment to exercise in this case once the consent of both parents had been obtained. When an adult petitions for a name change, New Jersey law dictates that the court should grant the change unless there is some public interest in denying it, usually based on a finding that it is being done to perpetrate a fraud on creditors or to avoid criminal prosecution.  Unless one of those complicating factors is present, the court is normally not required to make any finding as to whether the name change is in the best interest of the applicant.

A quarter-century ago, in the case of Matter of Eck, 245 N.J. Super. 220 (App. Div. 1991), a New Jersey trial judge refused to grant a transgender adult’s petition for a name change, holding that “it is inherently fraudulent for a person who is physically a male to assume an obviously ‘female’ name for the sole purpose of representing himself to future employers and society as a female.” The Appellate Division reversed this ruling, stating that “a person has a right to a name change whether he or she has undergone or intends to undergo a sex change through surgery, has received hormonal injections to induce physical change, is a transvestite, or simply wants to change from a traditional ‘male’ first name to one traditionally ‘female’ or vice versa.”  In other words, where an adult is concerned, the court has limited discretion to deny a name change, and in New Jersey, at least since 1991, it has been established that a name change to accord with gender identity is not deemed fraudulent as such.

The issue for minors is different, Judge Silva explained. There is a statute governing name changes for minors that has some factual inquiries as prerequisites similar to those governing adults, which did not seem to apply in Trevor’s case.  “It is uncontested,” wrote Silva, “that Trevor is not doing this with the purpose to defraud creditors or avoid criminal prosecution nor has Trevor ever been involved with the criminal justice system.”

But most name change petitions for minors involve situations where the parents are divorcing and the mother, who may have primary residential custody, is planning to assume her maiden name and wants her child to have the same last name as her. In such cases, where the father may be opposed, the court has to referee the situation by figuring out whether it is in the child’s best interest for a change of surname, and in a 1995 case a New Jersey court set out a list of factors to consider in such a case.  Of course, the decision to change a given name to reflect gender identity presents different issues, but Judge Silva concluded that in light of the court’s role as a guardian of the interests of children (referred to in the law as parens patriae) “the best interest of the child standard should apply,” while acknowledging that although the cases involving surnames “provide some guidance to this court, they do not fully address whether the proposed name change is in Trevor’s best interest.”

Judge Silva specified the following factors that she would consider in Trevor’s case: his age, how long he has used the name Trevor, “any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity,” the history of Trevor’s medical or mental health counseling, the name by which he is known in his family, school and community, his preference and motivation for seeking the name change, and whether his parents have given consent.

In this case, the court concluded that all these factors supported a finding that it was in Trevor’s best interest to approve the name change. Trevor had been considered a “quintessential tomboy” by his parents due to his lack of interest in typical girl activities as a youth, and they noticed when he entered the sixth grade “a change in his behavior” that led them to seek counseling for him, first with a child study team at school and then with a clinical social worker.  Ultimately Trevor announced his male gender identity to his parents and his desire to be called Trevor.  His gender dysphoria was diagnosed by a psychologist who continues to work with him through his transition.  Trevor testified that “the only people that still call him Veronica are his father, his stepmother and step-siblings” and that “he feels that the name [Trevor] better represents who he is and the gender with which he identifies.”

While noting the “constant changes that have occurred in the legal landscape as it relates to gender identity, sexual orientation and similar issues,” Silva wrote, “the issue of whether a transgender minor child should be permitted to change his or her name to better match his or her gender identity is a novel one for this court.” She pointed out that if Trevor had waited until his 18th birthday, the issue would be simpler.  Parental approval would not be required.  “However, children are unable to make such decisions on their own unless they have been emancipated.”

Judge Silva observed that the legislature has declared that the state “has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth” and, she wrote, “recognizing the importance of a name change is one of the ways to help protect the well-being of a transgender minor child. The name change allows the transgender minor child to begin to fully transition into their chosen gender and possibly prevent them from facing harassment and embarrassment from being forced to use a legal name that may no longer match his or her gender identity.”

One practical reason why Trevor wanted the change now was because, as he was about to turn 17, he would be applying for a driver’s license and applying to colleges. He was planning this summer to travel to China and would be getting a passport.  It was important, now that he is living as a boy, for him to be able to get these official documents with an appropriate name matching his identity, and a legal name change was needed to use this name on official documents.  Judge Silva counted this motivation in favor of granting the application.

The judge concluded, “Trevor has undergone hormone therapy and presents as a young man with facial hair, a muscular build, a head full of male-textured hair, and a deeper voice. To force him to legally keep the feminine name ‘Veronica’ would not be in his best interest.  Therefore, plaintiff’s motion to legally change Veronica’s name to Trevor is granted.”  Trevor was not seeking to change his surname, and will henceforth be known as Trevor Adam Betts.

Often transgender people seek an exemption from the legal requirement that court-ordered name changes be published in a newspaper of public record, but Trevor was not seeking such an exemption.   “Given the parties’ request that their real names be used in this decision, and the fact that Trevor is the subject of a documentary, this court does not find it necessary to protect his identity and thus will order plaintiff to comply with the publication and filing requirements.”

Trevor and his mother were represented in this proceeding by Jennifer Weisberg Millner of the firm Fox Rothschild LLP.

7th Circuit Says Federal Law Protects Transgender Students

Posted on: May 31st, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit upheld a trial court’s preliminary injunction that requires a Wisconsin school district to allow Ashton Whitaker, a transgender boy, to use the boys’ restroom facilities at his high school during his senior year.   Whitaker v. Kenosha Unified School District No. 1 Board of Education, 2017 U.S. App. LEXIS 9362, 2017 WL 2331751.  Circuit Judge Ann Claire Williams wrote the court’s opinion, joined by Circuit Judges Diane Pamela Wood and Ilana Rovner.  This May 30 decision is a landmark ruling: For the first time, a federal appeals court has ruled that Title IX of the Education Amendments Act of 1972, which bans sex discrimination by educational institutions that get federal money, prohibits discrimination against transgender students. The court also ruled that a transgender student subjected to discriminatory treatment by a public school could sue under the Constitution’s Equal Protection Clause.

In a prior ruling involving Gavin Grimm, a transgender boy who is about to graduate from a Virginia high school, the Richmond-based 4th Circuit Court of Appeals ruled that the federal courts should defer to the Obama Administration’s “reasonable” interpretation of Title IX providing protection to transgender students, but that ruling was vacated by the U.S. Supreme Court recently after the Trump Administration withdrew the Obama Administration’s interpretation after the Court had agreed to review the 4th Circuit’s decision.  Gavin Grimm’s appeal from a district court’s denial of his Title IX claim is still pending before the 4th Circuit, although the case may be mooted by his graduation.

Judges Williams and Wood were appointed to the court by President Bill Clinton. Judge Rovner was appointed by President George H. W. Bush. Throughout the opinion, Williams refers to the plaintiff as “Ash,” using the name he prefers and used throughout the papers filed in this lawsuit.

Judge Williams succinctly summarized what the case is about in her matter-of-fact opening sentence: “Ashton (‘Ash’) Whitaker is a 17 year-old high school senior boy who has what would seem like a simple request: to use the boys’ restroom while at school.” The request did not seem simple to Kenosha school authorities, however, because Whitaker is a transgender boy and, as far as the school district is concerned, should be treated as a girl unless or until Ash presents documentation of a completed surgical gender transition resulting in a new birth certificate designating him as male.  However, under the recognized standard of care for gender dysphoria, genital surgery may not be performed until the individual reaches age 18, and his birth state of Wisconsin will not issue such a birth certificate without proof of surgical sex reassignment, so there is no way that Ash Whitaker can satisfy the district’s unwritten policy for being treated as a boy while he is a student there.

According to the court’s opinion, Ash was in the 8th grade when he told his parents that “he is transgender and a boy.”  When he entered Tremper High School as a freshman in the fall of 2013, he identified himself as a boy, cutting his hair short, wearing masculine clothing, and using the name Ashton and male pronouns to refer to himself.  “In the fall of 2014, the beginning of his sophomore year, he told his teachers and his classmates that he is a boy and asked them to refer to him as Ashton or Ash and to use male pronouns,” wrote Williams.  He also began to see a therapist, who formally diagnosed him with gender dysphoria.  After his junior year, he began hormone replacement therapy under the supervision of an endocrinologist and petitioned a local court for a legal name change, which was granted in September 2016.

Ash and his mother began to meet with school authorities in the spring of his sophomore year to request that he be permitted to use the boys’ restrooms at school, but the authorities were resistant. Although the school district has no written policy on the matter, the administration informed him that he was not allowed to use the boys’ restroom, and that they would make an exception to the usual rules and allow him to use a gender-neutral restroom in the school’s main office.  This was not particularly helpful to him, since the main office was “quite a distance from his classrooms.”  Using that restroom between classes would make him late for class.  And, explained Judge Williams, “because Ash had publicly transitioned, he believed that using the girls’ restrooms would undermine his transition.”  And since he was the only student authorized to use the gender-neutral bathroom in the office, “he feared that using it would draw further attention to his transition and status as a transgender student at Tremper.”

There was also a medical complication. Ash has been diagnosed with vasovagal syncope, a condition that makes him susceptible to fainting or seizures if he becomes dehydrated, so he has to drink liquids frequently, which means he needs those bathroom breaks between classes and he can’t easily get by with “holding his water” throughout the day.  In an attempt to avoid having to use bathrooms during the day, he did attempt to restrict his water intake, but with predictable results: fainting and dizziness. In addition, the restrictions placed on him led him to suffer stress-related migraines, depression, and anxiety.  “He even began to contemplate suicide,” wrote Williams.

When he began his junior year in the fall of 2015, he decided to take a risk and use the boys’ restrooms, hoping not to be caught or disciplined. “For six months, he exclusively used the boys’ restrooms at school without incident,” wrote Williams, “but, in February 2016, a teacher saw him washing his hands at a sink in the boys’ restroom and reported it to the school’s administration.”  A guidance counselor contacted his mother and reiterated the restrictive restroom policy.  Ash and his mother met with the assistant principal, who stood firm, pointing out that Ash was listed on the school’s official records as female and any change would require “legal or medical documentation.”  Subsequent correspondence eventually clarified that written certification of his gender dysphoria and of his name change would not be sufficient for the school.  They wanted a male-designated birth certificate before they would make any change.

Despite this incident, Ash continued to use the boys’ restrooms, causing him anxiousness and depression. From the court’s description, it sounds like a “cat and mouse game” was going on at the high school, as security guards were “instructed to monitor Ash’s restroom use” and he sought to evade their gaze.  He was caught a few times and removed from classes to get dressed down by administrators, however, leading classmates and teachers to ask about what was going on.  In April 2016, the school expanded Ash’s restroom access to include two single-user, gender-neutral locked restrooms on the opposite side of the campus from where his classes were held.  He was the only student issued a key to these restrooms.  But again, due to their location they were of little use to him if he wanted to avoid being late for classes, and he felt further stigmatized, avoiding these restrooms entirely.  “In addition,” wrote Williams, “Ash began to fear for his safety as more attention was drawn to his restroom use and transgender status.”  He also began to suffer various other kinds of discrimination connected with the school’s insistence on treating him as a girl, but when he decided to take legal action he restricted his complaint to the bathroom issue.

Ash found a lawyer, who sent a demand letter to the school district, which declined to change its position. Then Ash filed a complaint with the U.S. Education Department’s Office of Civil Rights, alleging a violation of Title IX.  But when it became clear that the administrative process would take too much time to provide relief for him before his senior year began, he withdrew the complaint and filed his lawsuit, seeking a preliminary injunction that would get him restroom access for his senior year.

The school district filed a motion to dismiss the lawsuit, claiming that neither Title IX nor the Constitution provided a legal cause of action for Ash. District Judge Pamela Pepper denied the motion to dismiss and granted Ash’s motion for a preliminary injunction that would allow him to use the boys’ restrooms at school while the case was pending.  A prerequisite for issuing the injunction was Judge Pepper’s determination that Title IX and the Equal Protection Clause both gave Ash legal claims on which he had a “better than negligible” chance of succeeding and that he would suffer irreparable injury, greater than any injury suffered by the school district, if he was denied this relief.

The school district attempted to appeal Judge Pepper’s denial of its motion to dismiss, but the 7th Circuit refused to consider that appeal last year.  A denial of a motion to dismiss a lawsuit is not a final judgment, because it just means that the lawsuit will continue, and if the defendant loses, then the defendant can appeal the final judgment.  Although there is a narrow set of circumstances in which a court of appeals will consider an appeal by a defendant whose motion to dismiss has been denied, this case did not fit within them, a point the court reiterated in its May 30 ruling.  The school district also appealed from Judge Pepper’s preliminary injunction, but the 7th Circuit panel unanimously affirmed Judge Pepper.

The court easily rejected the school district’s argument that Ash would not suffer irreparable harm because the district had made available to him gender-neutral restrooms. The school district also contested the expert testimony offered by a psychologist about the harm that its policies were inflicting on Ash.  Judge Williams quoted Dr. Stephanie Budge’s testimony that the district’s treatment of Ash “significantly and negatively impacted his mental health and overall well-being.”  Clearly, such an effect could not be compensated by an award of monetary damages at a later date, and was thus “irreparable” as that term is used by the courts.  Dr. Budge testified that the school district’s actions, including its bathroom policy, which identified Ash as transgender and therefore, “different,” were “directly causing significant psychological distress and place him at risk for experiencing life-long diminished well-being and life-functioning.”  The court of appeals found no clear error in Judge Pepper’s reliance on this expert testimony, which was not effectively rebutted by the school district.   Furthermore, his experience of using the boys’ restrooms for six months without any incident or complaints from students or teachers belied the school district’s argument that it would suffer serious injury if he were allowed to use those restrooms.

As to the likelihood that Ash would prevail on the merits of his claim at trial, the court did not have to strain much to reach that conclusion. Judge Williams noted that the 7th Circuit, like other courts of appeals, has looked to cases decided under Title VII of the Civil Rights Act of 1964 to determine the scope of the ban on sex discrimination.  On April 4, the 7th Circuit ruled in Hively v. Ivy Tech Community College, 853 F.3d 339, an employment discrimination case, that a lesbian who was denied a faculty position because of her sexual orientation could bring a sex discrimination claim under Title VII.  That ruling was heavily based on a line of federal cases under Title VII that had adopted a broad interpretation of “discrimination because of sex,” and Judge Williams found that the logic of those cases had clearly overruled the 7th Circuit’s decision in Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984), in which it had denied a Title VII claim by a transgender airline pilot.  The Ulane case predated the Supreme Court’s ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Court found that discrimination against a person because of their failure to conform to sex stereotypes could be found to violate Title VII.  In effect, the Court said that Title VII applied to discrimination because of gender, not just because of biological sex.

“By definition,” wrote Williams, “a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” The judge cited a long list of federal court rulings that have reached this conclusion and applied Title VII to cases of gender identity discrimination.  The court rejected the school district’s argument that Congress’s failure to amend Title IX or Title VII to expressly protect people based on their transgender status required a different conclusion, and held that “Ash can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender.”  She also pointed out that the school district was misrepresenting Ash’s claim when it argued that he may not “unilaterally declare” his gender, ignoring the medical diagnosis of gender dysphoria.

“Since his diagnosis,” wrote Judge Williams, “he has consistently lived in accordance with his gender identity. This lawsuit demonstrates that the decision to do so was not without cost or pain.  Therefore, we find that Ash has sufficiently established a probability of success on the merits of his Title IX claim.”  The court held similarly regarding Ash’s alternative constitutional equal protection claim, rejecting the school district’s argument that because it has a “rational basis” for adopting its restroom access rule – protecting the privacy of male students who did not want to use a restroom with a girl – it could prevail over Ash on the constitutional claim.  Because the court had concluded that a gender identity discrimination claim is in actuality a sex discrimination claim, it followed that the level of judicial review would be the same that courts use for sex discrimination claims: heightened scrutiny.  Under this standard, the discriminatory policy is presumed to be unconstitutional and the school district has the burden to show that it has an “exceedingly persuasive” justification for adopting the policy.

Such a justification cannot rely on “sheer conjecture and abstraction,” but that’s all the school district had. Judge Williams observed that the administration had never received any complaint from other students about Ash using the boys’ restrooms.  “This policy does nothing to protection the privacy rights of each individual student vis-à-vis students who share similar anatomy and it ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door.”  Indeed, Williams might have gone on to write, it would be ludicrous to suggest that a transgender boy is going to expose himself at a urinal, or stand at a urinal and glance over at other boys using the adjacent facilities.

“A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions,” wrote the judge. “Or for that matter, any other student who uses the bathroom at the same time.  Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.”

In an interesting excursion into the hotly contested science of sexual identity, Williams added that the school administration’s insistence on treating people in accord with sex markers on birth certificates would not necessarily address their concerns. “The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex,” she wrote.  “Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another.  It is also unclear what would happen if an individual is born with the external genitalia of two sexes, or genitalia that are ambiguous in nature.  In those cases, it is clear that the marker on the birth certificate would not adequately account for or reflect one’s biological sex, which would have to be determined by considering more than what was listed on the paper.”

She also noted the lack of consistency among the various states in what they require to change birth certificates. Depending where a transgender student was born, they might be able to get a new certificate without a surgical sex reassignment procedure, thus defeating the school’s underlying purpose in relying on the birth certificate.  She also pointed out that the school district did not have a policy requiring newly registering students to present birth certificates, allowing them to present passports as identification as an alternative. The U.S. State Department no longer requires proof of sex-reassignment surgery for a transgender man to get a passport correctly identifying his gender, so a transgender boy who had obtained an appropriate passport could register in the Kenosha School District as a boy.

Thus, having found that Ash’s allegations fulfilled all the tests required for obtaining a preliminary injunction, the court denied the school district’s appeal and affirmed the injunctive relief. There were no immediate indications that the school district would seek en banc review or petition the Supreme Court for a stay.

Ash is represented by Robert Theine Pledl of Pledl & Cohn, Milwaukee; Joseph John Wardenski and Sasha M. Samberg-Champion, of Relman, Dane & Colfax PLLC, Washington D.C.; and Shawn Thomas Meerkamper, Alison Pennington and Ilona M. Turner, with the Transgender Law Center of Oakland, California. Amicus briefs in support of Ash’s case were received from a variety of groups representing school administrators, parents, students, and LGBT rights organizations.  Among those joining in were Lambda Legal, PFLAG, Gay-Straight Alliances, and women’s rights groups, with several major law firms stepping up to author the amicus briefs.  The only amicus support for the school district came from Alliance Defending Freedom (ADF), the anti-gay religious litigation group that has championed lawsuits attacking school districts for allowing transgender students to use facilities consistent with their gender identity.

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.