Conversely, if a Texas appeals court were to overturn Littleton v. Prange and validate Nikki Araguz's heterosexual marriage to Thomas Araguz, there are numerous Texas couples who have married precisely because of the Littleton v. Prange decision who could also be adversely affected by such a change in Texas law. They are people who, because of the Littleton v. Prange ruling, have married in Texas, where one of the women is a post-genital-reconstruction-surgery-female with a presumed XY sex chromosome pair and the other is a female with a presumed XX sex chromosome pair, or with the converse ostensible genetic situation where one of the partners is a post-genital-reconstruction-surgery-male with a presumed XX sex chromosome pair and the other is a male with a presumed XY sex chromosome pair. There are potentially hundreds of such couples in Texas. Any time a county in Texas refuses to provide such a couple a marriage license in Texas, they give that couple grounds to bring a lawsuit against the state on the basis of Littleton v. Prange, notwithstanding the recent but unclear 2009 legislative change to the Texas marriage statute regarding recognition of change of sex for the purpose of heterosexual marriage. While the television and newspaper reports about the lawsuit against Nikki Araguz give the impression that her marriage is an isolated and unique one, such presumptions are far from the truth. The truth is that there are hundreds of such married couples in Texas. At any time some circumstance in any of those marriages could lead to yet more lawsuits similar to Littleton v. Prange or In Re the Estate of Thomas Araguz III, the lawsuit against Nikki Araguz. What follows is a survey of the populations of people who could be affected by these lawsuits and their legal rulings, and circumstances precedent to them, including the relevant medical conditions, and the various forms of marriage engaged in by the affected people.
Although there aren't any centrally available statistics on the number of people who have had such surgery, various people have attempted to build estimates of the statistical totals using secondary statistics to accumulate aggregate sums. They have been able to create aggregate statistics because the surgeons who perform such surgeries are generally quite well known because of the work they do. Over the years, and on various occasions, most such surgeons have published information about the numbers of surgeries they have performed. Such surgeries have been performed in abundance in the U.S. since the 1960s. The most prolific vaginoplasty surgeon thus far was the late Stanley Biber, MD, who reportedly performed over 5,000 such surgeries during his career. At any given time since the 1960s there have been at least two or three surgeons in the U.S. performing as many as three or four such genital reconstruction surgeries every week on average. There are also a number of surgeons performing such surgeries on U.S. citizens in European countries and in Thailand. Thailand is a country with a highly developed healthcare system, and a culture that readily accepts the medical nature of transsexual and intersex conditions, and surgery to treat them. By assembling estimates from individual surgeons about the number of surgeries each has performed, reasonably reliable estimates, albeit with a large margin of error, are possible to aggregate into various total estimates. The more conservative estimates of vaginoplasty surgery performed on U.S. transsexual women between 1960 and 2010 is about 25,000 with the highest estimates being about 45,000. Lynn Conway, professor emeritus at University of Michigan has compiled one such estimate that is well supported by demographic data. Lynn Conway's estimate is 30,000-40,000 (1) U.S. transsexual women who have received vaginoplasty surgery between approximately 1960 and 2010.
In addition, that total currently increases at a rate of about 1,000 annually. An increase of 1,000 surgeries performed on U.S. transsexual women is easily derived from the sum of the average number of vaginoplasty surgeries performed annually by the most well known and prolific surgeons who are currently practicing. In the U.S. and Canada, this includes four surgeons who frequently perform vaginoplasty procedures: Toby Meltzer, MD, Marci Bowers, MD, Pierre Brassard, MD, and Christine McGinn, DO. There are also about a dozen well known and reputable vaginoplasty surgeons in Thailand including: Suporn Watanyusakul, MD, Chettawut Tulayaphanich M.D., and others. Using an average annual rate of 150 to 200 surgeries performed by the most prolific of the surgeons, a 1,000 annual average is an easily supported, reliable and possibly even a conservative estimate. While some researchers' estimates are lower (4), an estimate of 1,000 seems far better supported by the obvious publicly available information.
The number of people who have received such surgery who likely live in Texas can be derived from some simple ratios calculated using the surgery statistics above and geographical population estimates. Using a ratio derived from the total surgeries performed versus U.S. population statistics from the U.S. Census, Lynn Conway estimates that the prevalence of transsexual people in the U.S. who have undergone such surgery is about 1 in 2,500 people (1). Based on a estimated greater Houston, TX population of 5,539,949 (2) and the 1/2500 prevalence, there likely may be about 1,100 transsexual women who have had vaginoplasty surgery living in greater Houston, TX area. Given the U.S. Census bureau estimate of the Texas population, 24,782,302 (3), and the same prevalence estimate, there may be as many as 5,000 such transsexual women who have had vaginoplasty surgery, who live in the very populace Texas. Given the cultural nature of Texas, and other reasons for transsexual people to live elsewhere, the number may be smaller. However, such estimates do provide information about the order of magnitude of the number of people directly impacted the 1999 Littleton v. Prange ruling and by any future negative appeals court ruling in Texas, if the lawsuit against Nikki Araguz were to progress that far.
Statistics for transsexual men who have received either a phalloplasty procedure or a metoidioplasty procedure to create male genitalia have been more difficult to obtain. However, given related statistics, there may currently be as many as 500 such procedures performed on U.S. transsexual men annually. The historical rates for phalloplasty surgery and metoidioplasty surgery performed on transsexual men are smaller than those for vaginoplasty surgery performed in transsexual women. However, for the purpose of developing a working estimate, if a 2/1 ratio were used to develop aggregate statistics, that would yield about 500 transsexual men in the Houston, TX area who have received such surgery and as many as 2,500 such transsexual men throughout Texas.
With the statistical information above as a basis, there could be as many as 7,500 transsexual men and women in Texas who have been affected by the 1999 Littleton v. Prange ruling and who could be affected in the future by the outcome of the lawsuit against Nikki Araguz. It would be very difficult to calculate the number of married couples in Texas where one partner is a post-surgical-transsexual person, but there could certainly be hundreds of such marriages, if not thousands, in various potential configurations. If the Delgado v. Araguz lawsuit were to be litigated through various appeals courts, the outcome could impact transsexual and intersex people throughout Texas. If on the slim chance that the U.S. Supreme Court considered and ruled about the case, such a ruling could impact transsexual people throughout the U.S. for the foreseeable future. If both post-surgical transsexual men and transsexual women are included along with intersex people throughout the U.S., such a ruling by the U.S. Supreme Court could forever change the legal status of 60,000 to 80,000 such people.
Among the many people such an appeals court ruling could impact, there are numerous types of marriages to consider with regard to transsexual people and various types of marriages to consider with regard to intersex people as well. In the various pairings below, the term ostensible is used because very few people have procured DNA analysis of their sex chromosomes, and all but a few people base their genotype (genetic makeup) on presumption:
- transsexual woman without vaginoplasty
- married to -
ostensible 46XX sex chromosome female - transsexual woman with vaginoplasty
- married to -
ostensible 46XX sex chromosome female - transsexual woman without vaginoplasty
- married to -
ostensible 46XY sex chromosome male - transsexual woman with vaginoplasty
- married to -
ostensible 46XY sex chromosome male - transsexual woman without vaginoplasty
- married to -
a person with some form of intersex condition - transsexual woman with vaginoplasty
- married to -
a person with some form of intersex condition
- transsexual man without phalloplasty or metoidioplasy
- married to -
ostensible 46XX sex chromosome female - transsexual man with phalloplasty or metoidioplasy
- married to -
ostensible 46XX sex chromosome female - transsexual man without phalloplasty or metoidioplasy
- married to -
ostensible 46XY sex chromosome male - transsexual man with phalloplasty or metoidioplasy
- married to -
ostensible 46XY sex chromosome male - transsexual man without phalloplasty or metoidioplasy
- married to -
a person with some form of intersex condition - transsexual man with phalloplasty or metoidioplasy
- married to -
a person with some form of intersex condition
- person with an intersex condition
- married to -
ostensible 46XY sex chromosome male - person with an intersex condition
- married to -
ostensible 46XX sex chromosome female - woman born with complete androgen insensitivity syndrome
- married to -
ostensible 46XY sex chromosome male - woman born with complete androgen insensitivity syndrome
- married to -
ostensible 46XX sex chromosome female
In addition to the configurations above, a court would need to consider what happens to the validity of a marriage when one of the partners to an existing marriage undergoes surgery that changes the state of their genitals. There are many such married couples throughout the U.S. in which one partner in a spousal pair with ostensibly differing sex chromosomes undergoes genital reconstruction surgery after the marriage, sometimes years or decades after the marriage. As each of the various types of potential married couples listed above travel from state to the state the legal status of their marriage changes from valid to invalid to undetermined, based on conflicting and varying local state law. There are similar couples that involve a transsexual man married to an ostensible 46XY male spouse. Theoretically, based on Littleton v. Prange, such marriages remain valid in Texas regardless of the changes the married partners make to their genitals. However, in a state like Michigan, which has a statute that specifically provides for legal change of sex, including issuance of a new birth certificate and sealing of the original, would such a marriage be deemed legal by a court of law there? Since Michigan recognizes legal change of sex by statute, but also has a state constitutional amendment that outlaws same-sex marriage, it would seem logical to conclude that such couples would not be considered legally married by the state of Michigan. However, in most states, such conclusions of law have not been settled by their state appellate courts. When the Fox News television station in Houston, TX ran a poll asking if transsexual people should be allowed to legally marry, the station asked the question without specifying surgical status or the nature of the second partner involved in the marriage, rendering their poll somewhat ridiculous. News of the poll spread throughout the blogosphere, inspiring thousands of people to vote on the poll so many times that the final result was 95% in favor of legal marriage for transsexual people.
There is likely a segment of the transsexual population that is indifferent to the outcome of the lawsuit against Nikki Araguz, since a negative ruling would enable them to marry what for them are same-sex partners, as Littleton v. Prange has already done for them. The greater problem is that Littleton v. Prange mis-characterizes the Araguz marriage, and marriages like it, because they are marriages that by any practical and reasonable standard are heterosexual ones. There is already dissent and militance within the transsexual population, as expressed in analysis of these complex perspectives among the many web sites available where people discuss such topics. If the lawsuit against Nikki Araguz is litigated to a final judgment, it doesn't seem like there is any outcome that could please the entire transsexual and intersex population. The only real hope for a way to recognize the right for all these various groups of people to marry would be federal universal marriage equality. However, it appears that the only path to those sorts of rights is through the federal court system and the U.S. Supreme Court. Such recognition seems like it would be many years away, if at all possible given the positions of the judges and justices on the bench in the various courts involved. Regardless of the outcome, the lives of thousands of people could be affected.
One outcome that doesn't seem likely to be able to please anyone except Nikki Araguz, even if it might be acceptable to her, would be an out of court settlement of the Delgado v. Araguz lawsuit, that takes control over the legal issues away from the court. However, given the current posture of Heather Delgado, Simona Longoria, and their attorneys, including Chad Ellis, Edward Burwell, and Frank Mann III, they believe they can prevail on all their claims and have no reason to settle.
What is even more surprising, is that given the very high stakes, external financial support for the attorneys representing Nikki Araguz has apparently been a mere trickle, with little support from national transsexual activist groups, and apparently little or no support from national same-sex marriage support organizations operated by gay and lesbian groups. Apparently, gay and lesbian groups have not internalized the connection between the threat to heterosexual marriages for transsexual and intersex people and the denial of marriage rights to gay and lesbian people. The connection is that both are violations of constitutional equal protection and due process. Without financial support from various tertiary advocacy groups, the legal team representing Nikki Araguz will be litigating an expensive case on a shoe-string budget. While thousands of couples with a transsexual partner marry regularly throughout the U.S., the legality of their marriages is often unsettled law in most U.S. jurisdictions, and they exist in a statue of tenuous legality at best, vulnerable to lawsuits like the one against Nikki Araguz, from any number of threat sources. Unless an out of court settlement is reached in the lawsuit against Nikki Araguz, which would only effect her, a future appeals court decision could impact thousands of people in Texas, if not tens of thousands of U.S. citizens nationwide.
references
(1) How Frequently Does Transsexualism Occur?, Lynn Conway
http://ai.eecs.umich.edu/people/conway/TS/TSprevalence.html
(2) City of Houston, Texas, Houston Facts
http://www.houstontx.gov/abouthouston/houstonfacts.html
(3) U.S. Census Bureau Population Estimates
http://www.census.gov/popest/estimates.html
(4) The Incidence and Prevalence of SRS among US Residents - Mary Ann Horton, Ph.D.
http://www.tgender.net/taw/thb/THBPrevalence-OE2008.pdf
As always, another beautifully lucid account of the issues in this trial!
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