The trial court ruling in Littleton on which the 1999 appellate court ruling is based, was from a ruling on a defense motion for summary judgment by the court without trial. The core of the Littleton v. Prange ruling has two facets. The appellate court in Littleton ruled that original birth certificates are immutable in the state of Texas with regard to their sex designation. The Littleton court also ruled that in the state of Texas, genetics determine legal sex status. However, in the Littleton case, the court made its ruling about Christie Littleton presumptively, based purely on her birth certificate, without her ever having undergone DNA testing. The Littleton ruling is also silent on the issue of the legal sex status and identity of intersex people with mosaic sex chromosomes and other related congenital conditions. Parenthetically, the appellate opinion written by Texas judge Phil Hardberger (2) in the Littleton case reads like few other appellate court rulings anyone is likely to encounter from other jurisdictions. Its colloquial language, style, and cultural allusions, would likely astound most jurists outside of Texas. In Littleton, the court made the following findings of fact:
We find the case, at this stage, presents a pure question of law and must be decided by this court.The findings above ignore many aspects of the science of sex determination, they leap to conclusions without basis, and they use language that is both scientifically and medically inaccurate. One of these major inaccuracies appears in item (5) which incorrectly concludes that a person's sex chromosomes are always the determinant of a person's sex/gender characteristics. Genetics do not always equal biology, just as a house may deviate from its blueprints. In such a context, the term biology is deprecated in any event, and should probably be avoided. More specific terminology should be employed, such as: morphology, physiology, phenotype, genetic, hormonal, gonadal, and so on to describe the sex/gender state of the human organism. No single factor is determinant of a sex determination, and only when all of the relevant attributes extant within a given individual are considered as a whole can a reasonable sex/gender designation be reached. This logic becomes apparent and necessary particularly in the case of intersex individuals, and in some instances, neither of the two binary designations of male or female is appropriate. There are people born whose various characteristics are too indeterminant for any such designation. Only in the last decade, and only after significant social discourse and protests from intersex people themselves, have physicians begun to leave such designations indeterminant for those individuals where it is appropriate. In fact a significant segment of the medical profession remains reluctant to do so. The specifics of the genetic and other congenital conditions that can produce people born with intersex/hermaphroditic characteristics are available in a separate article on this site.
Based on the facts of this case, and the law and studies of previous cases, we conclude:
(1) Medical science recognizes that there are individuals whose sexual self-identity is in conflict with their biological and anatomical sex. Such people are termed transsexuals.
(2) A transsexual is not a homosexual in the traditional sense of the word, in that transsexuals believe and feel they are members of the opposite sex. Nor is a transsexual a transvestite. Transsexuals do not believe they are dressing in the opposite sex's clothes. They believe they are dressing in their own sex's clothes.
(3) Christie Littleton is a transsexual.
(4) Through surgery and hormones, a transsexual male(sic) can be made to look like a woman, including female genitalia and breasts. Transsexual medical treatment, however, does not create the internal sexual organs of a women (except for the vaginal canal). There is no womb, cervix or ovaries in the post-operative transsexual female.
(5) The male chromosomes do not change with either hormonal treatment or sex reassignment surgery. Biologically a post-operative female transsexual is still a male.
(6) The evidence fully supports that Christie Littleton, born male, wants and believes herself to be a woman. She has made every conceivable effort to make herself a female, including a surgery that would make most males pale and perspire to contemplate.
(7) Some physicians would consider Christie a female; other physicians would consider her still a male. Her female anatomy, however, is all man-made. The body that Christie inhabits is a male body in all aspects other than what the physicians have supplied.
http://christielee.net/crtdec2.htm
Justice Phil Hardberger's logic in items (4) and (7) above is also clearly defective for various reasons. Biologically, nearly all of the human body is generic as to sex/gender and not at all sex/gender specific, except for the reproductive organs, and even they can be ambiguous at birth under some circumstances. In fact the sex-generic components of the human body that contain hormone receptors have the same hormone receptors regardless of the person's genetic sex, and most have hormone receptors for both estrogen and androgens. For example all humans have mammary glands. Given stimulation with appropriate hormones, human mammary glands will develop into breasts with lactating capability. Similarly any human given adequate testosterone will develop facial hair, as can be observed from the beards that transsexual men develop. It seems clearly specious to argue that the beard growth on the face of a transsexual man is any less male than the beard growth that occurs in XY sex chromosome genetic men, which occurs because those facial hair follicles respond to testosterone, and which make no differentiation as to the source of that hormonal stimulus, whether endogenous or exogenous. However, once such a physiological component is stimulated for a significant period of time with a given hormonal regimen, its responds to a different hormonal regimen becomes muted. This phenomenon has been consistently observed when treating intersex and transsexual people with hormones at various stages of their lives. For example when transsexual girls have been treated at puberty with estrogen and progesterone, that have all developed pelvic structures within female norms and breasts within female norms to an extent similar to their female ancestor's breasts. Dozens of similar examples could be cited. What is important is that only the reproductive organs themselves are morphologically specific, meaning that sex is actually a minor attribute within human physiology, despite misinformed social expectation that the opposite is true.
Given Justice Phil Hardberger's arguments in items (4) and (7) above, one would also have to consider how his logic would apply to a transsexual woman who had received a reproductive organ transplant that included vagina, cervix, ovaries, uterus, and so on intact, providing her with reproductive abilities, notwithstanding the medical contraindications for gestation while taking anti-rejection medications. As with any other transplanted organ, the genetic sex of the donor does not impact organ compatibility. Although there are not any reports of transplanted female reproductive organs in the medical literature, it seems like only a matter of time before the first such transplant occurs. It doesn't seem like Phil Hardberger's argument would be at all valid for a transsexual woman possessing fully functional, transplanted female reproductive organs. The attorneys representing Nikki Araguz would need to have a medical expert who agrees with these findings testify about them, or more likely write a report in addition that could be presented as an exhibit to defend against the plaintiffs' likely motion for summary judgment.
In the unlikely instance that a Texas appellate court overrules Littleton, the court would be faced with development of a much more difficult standard by which to determine the legal sex of intersex and post-surgical transsexual people. For example, the surgical techniques available to transsexual men are neither as functional nor as aesthetic as the current state of vaginoplasty surgery for transsexual women. Consequently, only a minority of transsexual men obtain surgery that creates some form of male genitalia. Conversely surgical techniques for creating a vagina have become reasonably advanced. For reference, the following web site includes example result photos of external genitalia after such surgery and even a complete step by step pictorial of vaginoplasty surgery as performed by Toby Meltzer, MD of Scottsdale, Arizona:
http://www.annelawrence.com/twr/srsindex.html
If an ostensibly enlightened court were to impose a genital standard for sex determination, including intersex and transsexual people, currently, transsexual men would be forced to choose from a sometimes less than optimal set of options with regard to surgery that provides male genitalia in order to meet such a legal requirement. Such a standard would leave transsexual men like Thomas Beatie of Oregon, who remains capable of gestating children and giving birth to them, and as done so, outside such a legal standard. A genital standard also has implications for other aspects of life in modern society. The most frequently cited is inmate placement standards for jails and prisons. If arrested, would Thomas Beatie want to be placed in general population with other men, while still possessing a vagina, and if not should a court of law consider him legally male? Other curious examples worthy of consideration in order for a court to develop a rational but comprehensive standard for legal sex determination would surely need to include cases such as that of Charles/Judy/Yosef Kirchner (4), who began life as a transsexual women, obtained vaginoplasty surgery and facial feminization surgery and lived for twenty years as Judy Kirchner and even married and divorced twice, before turning to male life as Yosef Kirchner. However, Yosef Kirchner still has a vagina. What sort of standard for sex determination would satisfy all these various situations? If a genital standard were used, wouldn't Yosef Kichrner likely need to be considered legally female, as might Thomas Beatie? If not a genital standard, then what standard, with what criteria, and how would it address and encompass the sorts of exceptional examples such as the people just cited?
Given all the foregoing, it seems like an assertive legal team representing Nikki Araguz might want to consider multiple attacks on the Littleton ruling, despite the difficulty of presenting a fully rational alternative standard even if given a favorable ruling by the court. One of the attorneys representing Nikki Araguz, Phyllis Frye, has already written extensively about possible ways to attack the Littleton ruling. One defense approach would be to argue that Littleton is simply incorrect law from a scientific and medical perspective with regard to genetics and sexual morphology. Another defense might be that Nikki Araguz was born in California, and if she does indeed have a female California birth certificate, that Texas should recognize its validity under federal constitutional law. A third defense is that the 2009 statutory change to Texas marriage law supersedes Littleton. In fact, the attorneys representing Nikki Araguz have already presented this argument in their recent Motion to Dismiss for lack of subject matter jurisdiction. A fourth defense, and one that also seems likely, is to persuade the court that Littleton shouldn't apply to Nikki Araguz because she is intersex, and using arguments also made within the scientific defense, the court should consider her legal sex status de novo, taking into consideration that she was born with Androgen Insensitivity Syndrome (AIS). In order to make these arguments to the court, the attorneys for Nikki Araguz will likely need to have her DNA tested and to have her examined physically by one or more physicians who are medical experts in the science of intersex conditions. The physicians would need to prepare expert opinion reports, and would be required to testify in any court hearing on the matter so that they could be cross examined. Such expert examinations, reports, and testimony can be very expensive, often costing tens of thousands of dollars at minimum. The attorneys for Nikki Araguz would also need to gather every relevant medical record they can obtain that might contain evidence to corroborate the expert testimony and confirm Nikki's AIS diagnosis. For example, the physician who performed genital reconstruction surgery on Nikki Araguz likely has before and after photos of her genitals that could be used for evidence. In addition, the surgeon herself could be enlisted as a witness, both with regard to the surgery itself, as well as the date on which the surgery occurred. It seems likely as well, that the plaintiffs may decide to obtain a court order to have Nikki Araguz's DNA tested and possibly to have her submit to an examination by a physician of their choosing, and possibly requesting DNA testing of Thomas Araguz as well, since under Littleton, both of them would need to have an XY sex chromosome pair in order to fulfill the requirements of that court's ruling against same-sex marriage. Preparation of this sort of evidence and testimony, and writing legal briefs in support of it takes time, far more time than the posturing by the plaintiffs that they plan to file a motion for summary judgment within weeks.
Another aspect of the Littleton case and the Delgado v. Araguz case that seems worth considering, are the ways in which intersex and transsexual people might want to structure their lives to protect against the sort of ordeal that currently consumes life for Nikki Araguz. First, it seems like anyone who is intersex or transsexual should only marry in states that provide universal marriage equality. That currently means that such people should marry in Massachusetts. However, given the recent ruling on Proposition 8 in California, that may change. However, until there is a final resolution to that federal court case in California over marriage equality, it seems like every intersex and transsexual person interested in marriage will need to make careful and well informed decisions. For the moment, Massachusetts also seems to be the only legally safe state for married couples with one or more intersex or transsexual partners to live in after marriage, so that the marriage can be protected from the sort of legal assault waged against Littleton and Araguz. Another approach is for people to live without legal marriage, but with carefully drafted estate documents that financially provide for that intimate partner in case of death.
If and when intersex or transsexual people choose to marry, one of the things it seems like they should do and plan carefully about is the procurement of appropriate identification documents before getting married. It seems like any intersex or transsexual person who tries to get married without having their documentation in order would be negligent. However, all too often that is the case. For example, if Nikki Araguz had waited until after her genital reconstruction surgery in October 2008 to get married, she could have obtained a female birth certificate from the state of California where she was born before getting married, and the previous one would have been sealed by the state and inaccessible without a court order. That fact pattern might have been influential on both the circumstances that existed before here husband's death, and before a court considering the validity of her marriage after his death. Given that Nikki Araguz knew her medical situation from an early age, she could also have better protected access to her original birth certificate. For example she could have refrained from giving a copy of it to the attorney Frank Mann in 2002 when he represented her in a bankruptcy proceeding, thereby preventing the scurrilous Mr. Mann from being able to violate attorney client privilege by providing copies of it to the media. What also seems worthy of speculation is that the attorneys representing Nikki Araguz have yet to publish a copy of her female birth certificate from California, if indeed she ever got one. A passport with the appropriate sex designation also seems like a good piece of documentation for intersex and transsexual people. Passports are especially helpful because sharing the information on one doesn't have the identity theft risks associated with sharing a birth certificate.
Separately, but related to the marriage problems intersex and transsexual people face, is the fact that only one U.S court has ever affirmed the post-surgical legal sex status of any intersex or transsexual person, which occurred in New Jersey many years ago, M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976) (3). Unfortunately, every case in which the issue was before a U.S. court, involved a marriage, and there has never been a case when an intersex or transsexual person has litigated the issue of their legal sex status before a U.S. Court of law outside of a marriage related dispute. This is curious because there are some U.S. states where there are vital statistics agencies that won't change birth certificates, where the courts may be receptive to a lawsuit about such a legal issue. What makes matters even more murky for intersex and transsexual people though, is that only a couple states, such as Illinois and Michigan have statutory law that provides for change of legal sex status, and issuance of a new birth certificate after genital reconstruction surgery. Most states have simply allowed their vital statistics agencies to promulgate administrative policies that allow for such modifications. However those administrative policies do not have the force of statutory law. The Littleton ruling addressed this very fact when overruling the amended Texas birth certificate that Christee Littleton obtained only after filing her wrongful death and malpractice lawsuit regard the death of her husband. In this regard the court in the Littleton case wrote:
Christie was created and born a male. Her original birth certificate, an official document of Texas, clearly so states. During the pendency of this suit, Christie amended the original birth certificate to change the sex and name. Under section 191.029 of the Texas Health and Safety Code she was entitled to seek such an amendment if the record was "incomplete or proved by satisfactory evidence to be inaccurate." Tex. Health & Safety Code Ann. § 191.029 (Vernon 1992). The trial court that granted the petition to amend the birth certificate necessarily construed the term "inaccurate" to relate to the present, and having been presented with the uncontroverted affidavit of an expert stating that Christie is a female, the trial court deemed this satisfactory to prove an inaccuracy. However, the trial court's role in considering the petition was a ministerial one. It involved no fact-finding or consideration of the deeper public policy concerns presented. No one claims the information contained in Christie's original birth certificate was based on fraud or error. We believe the legislature intended the term "inaccurate" in section 191.028 to mean inaccurate as of the time the certificate was recorded; that is, at the time of birth. At the time of birth, Christie was a male, both anatomically and genetically. The facts contained in the original birth certificate were true and accurate, and the words contained in the amended certificate are not binding on this court.Texas appeals court justice Phil Hardberger specifically described the change to Ms. Littleton birth certificate as "ministerial" and clearly stated that the change had no binding legal validity. The Texas department of vital statistics continues to issue such amended birth certificates to transsexual people in that state, but they do not have any binding legal effect there. Only if the holder of such a document were in some other state that might recognize it, might it having any legal validity. The fact is, in all but a few states, intersex and transsexual people who have had genital reconstruction surgery exist in legal limbo with regard to their legal sex status, and many do not realize it. In light of what is happening to Nikki Araguz, it seems like extensive legal counseling and planning assistance should an essential component of the standard of care used by medical professions when treating intesex and transsexual people.
http://christielee.net/crtdec2.htm
Finally, one person who hasn't been heard from during the current furor over Nikki Araguz, is Christie Lee Littleton. Given historical precedent, this is not surprising. All too often it seems that the majority of people involved in such sagas take steps afterward to reclaim what level of private life is possible for them. There are some people though, who choose to keep themselves publicly active to some extent, but many more are usually difficult to track down for commentary years later. Christie Lee Littleton seems to be one of them. It is easy to find thousands of references to her and the lawsuit that has forever made her name public, but it has been difficult to find any evidence of her own presence on the internet. It seems appropriate to wonder; where is Christie Littleton, and what are her thoughts on this near repeat of the controversy that made her name one with thousands of matches when searched via google.com. One thing appears surprisingly certain. Christie Littleton apparently continues to live in Texas, despite the availability of more favorable laws and culture elsewhere.
As decades pass, it is often increasing difficult to find transsexual people of historical note. For example, a woman named Canary Conn was one of the first transsexual women to publish a biography. Canary's Conn's transsexual biography is also relatively unique because she was very young at the time, whereas the vast majority of such biographies have been written by people who have waited until mid-life to seek treatment, with all the consequent complexities that entails. Canary Conn appears to have changed her name or something and constructed a private life for herself far from the social community that has developed around activism regarding gender recognition and equality rights for transsexual and intersex people. Another example of this phenomenon is Caroline Cossey. Although she is reportedly married and living in Georgia, she does not have a personal account on facebook.com and doesn't seem at all present within the community of publicly active transsexual people.
Given the precarious state of marriage legality for intersex and transsexual people, any married intersex or transsexual person could be the next Nikki Araguz or Christie Littleton, since legal issues are no where near settled except with a couple U.S. states, such as New Jersey because of case law, Michigan and Illinois because of statutory law, and Massachusetts which provides universal marriage equality for all people. It seems like the day when universal marriage equality exists cannot come soon enough for intersex and transsexual people, to stop the vicious sort of excoriation that Nikki Araguz is being forced to endure at a time when she can probably barely hold back her grief over the loss of her husband, constant companion, and best friend Thomas Araguz. Even without the nightmare surrounding her, experts say it takes as long as two years to absorb and acclimate to such grief. Meanwhile, she is being forced to endure an assault on her very identity.
references
(1) Littleton v. Prange, 9 SW3d 223 (1999)
http://christielee.net/crtdec2.htm
(2) Chief Justice Phil Hardberger, Texas Fourth Court of Appeals
http://en.wikipedia.org/wiki/Phil_Hardberger
(3) M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976) http://zagria.blogspot.com/2010/07/m-t-193-wife.html
(4) Yosef Kirchner
http://zagria.blogspot.com/2009/01/josef-kirchner-1964-performer.html
Excellent review!!!
ReplyDeleteThank you for your hard work!
"only one U.S court has ever affirmed the post-surgical legal sex status of any intersex or transsexual person, which occurred in New Jersey many years ago, M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976)"
ReplyDeleteBe careful of your wording. Its phraseology such as this that reinforces the public's incorrect view about the how widespread legal recognition of transition is.
First: M.T. v. J.T. no longer stands alone. A Louisiana court of appeal upheld a marriage involving an FTM. That was in 2004; the case was Pierre v. Pierre (http://caselaw.findlaw.com/la-court-of-appeal/1234142.html). The majority opinion wasn't particularly strong, but it at least tacitly accepted that Louisiana's transsexual birth certificate statute means something - as opposed to the dissenting judge, who (I summarize) said that it meant nothing.
Additionally, whenever one says that the only US court(s) to recognize a transsexual's marriage is M.T. (and Pierre), one is not only doing the anti-trans side's work but doing doulbe duty for them.
It discounts all trial court rulings that have recognized them - and there are plenty, but we don't hear about them because, aside from a handful of states that allow publication of some trial court opinions (NY, NJ and Ohio - and maybe one or two others), trial court opinions aren't published and, in turn, aren't precedential and, after any newspaper reports about the decisions are forgotten, so are the decisions themselves.
Moreover, it erases the reason why you almost never hear of any challenges to transsexual marriages in states like Louisiana, California, etc., AND where the transsexual in question is post-op AND has a post-transition birth certificate: In such states, even a lawyer as unethical as Frank Mann, III, probably wouldn't try to attack such a marriage. The TS BC statute makes it clear to all but the crooked, the anencephlytic and the religionistic that the state recognizes change of sex. A marriage involving an FTM in Illinois got booted a few years back - but the FTM in question had essentially taken no steps toward transition at the time of the marriage. (Yes, that sounds akin to how Nikki's marriage is being painted - though I presume she'd done at least something prior to 2008 - but Illinois does not have common law marriage.)
In short, referring only to case law ignores that transition recognition is, by far, the majority rule in America. Counting New Hampshire (which I just noticed passed a TS BC statute in 2005), over half of the states have them; only one has a statute that is explicitly anti-transsexual (though even the Tennessee statute's legislative history can be ethically read to assert that the state was not rejecting transsexualism when it passed that law in 1977 but, rather, the idea of using the birth certificate as the means to document it) and the rest are silent.
It certainly is difficult to frame such discussions so that they please everyone isn't it?
ReplyDeletePlease feel free to provide more detailed information about other cases for analysis that might form the basis for a future article on national transsexual marriage and identity rights.
delgadovaraguz@gmail.com
"It certainly is difficult to frame such discussions so that they please everyone isn't it?"
ReplyDeleteI agree. That's why I've been writing law review articles on the subject for the last decade or so - though I've long since given up on trying to please everyone. My only goal is to influence judges and anyone else whose opinion as to what trans law actually is might have a direct impact.
A list of my articles (and links to a few of them) can be found at: http://translegalhistory.info/