Friday, August 13, 2010

Nikki Araguz Lawsuit - An Examination of Littleton v. Prange

The attorneys for Heather Delgado and Simona Longoria, the plaintiffs in their lawsuit against Nikki Araguz, have cited the Texas appeals court ruling in Littleton v. Prange, 9 SW3d 223 (1999), as the controlling case law the court should consider when deciding their claim against Nikki Araguz that her marriage to Thomas Araguz should be declared void. Given that much of the news media has also cited this case repeatedly, it seems worthwhile to examine it in detail, and to consider how defense attorneys for Nikki Araguz might directly and indirectly attack Littleton v. Prange with various legal arguments. Making legal arguments that directly attack previous and/or existing law and cases is called a collateral attack. Given the nature of this case, it seems essential for the attorneys representing Nikki Araguz to develop the evidence and arguments needed to establish and present a collateral attack on the Littleton decision. Doing so, seems like an important aspect of their having any chance of withstanding an appeal if Littleton becomes the controlling law used by the court to make its rulings. The Littleton ruling also seems like a worthy example to consider with regard to the long term social and personal impact such a case has on the parties involved, and how other intersex/hermaphroditic or transsexual people may want to consequently structure their lives in the hope of avoiding the sort of ordeal that currently consumes the life of Nikki Araguz.

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.

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.
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.

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:

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.

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 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 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.


(1) Littleton v. Prange, 9 SW3d 223 (1999)

(2) Chief Justice Phil Hardberger, Texas Fourth Court of Appeals

(3) M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976)

(4) Yosef Kirchner

Thursday, August 12, 2010

Nikki Araguz - PBS Video Interview

On August 6, 2010, the public television broadcasting station in Houston, TX aired an extended interview with Nikki Araguz, the widow of firefighter Thomas Araguz, who died on July 3, 2010. The interview lasted about eleven minutes. The purpose of the interview seemed to be an attempt to humanize Nikki Araguz for Texas television viewers, and to provide a some contrast with the generalized drubbing Nikki has endured in reports broadcast by the for profit television stations in Houston. The interviewer was Ernie Manouse, the PBS station's news anchor. In the quotations below from the interview, Ernie Manouse is abbreviated EM and Nikki Araguz is abbreviated NA. A complete transcript of the entire interview is available in a separate post on this site.

In the interview, one of the most significant themes that Nikki Araguz and her interviewer Ernie Manouse presented, was Nikki's outright categorical characterization herself as a woman born with a congenital intersex/hermaphroditic medical condition, that later involved medical treatment, and as a heterosexual female, without qualification; distancing and differentiating herself from transsexual women. However, she did make a curious gaff right after describing the diagnosis of Androgen Insensitivity Syndrome she had received as a child, mischaracterizing that intersex/hermaphroditic diagnosis as a "transgender syndrome" rather than an "intersex syndrome". Her statements in this regard during the interview, which occurred about about two minutes into it, were:

NA - I simply am a heterosexual woman. That’s how I define myself. I’m not a medical professional, but I know that I have been diagnosed with partial Androgen Insensitivity Syndrome, and that falls under a classification medically as a transgender syndrome.

EM - And folks have a problem getting past the idea, and they assume that when we talk in these that it is someone who was a male, born a male, grew up as a male, somehow felt they weren’t a male, so they had sexual reassignment surgery. That is a different condition than what you went through, correct?

NA - Completely, completely, I, in my growing up, even in my early years, my parents started to notice that I was not developing into a boy, umm, that I was developing into a girl, and sought medical professionals, umm, late 70s early 80s, nobody knew what was going on. And so umm, they just allowed me to continue to develop into the woman I am today.

Later on, at about nine minutes into the interview, Nikki elaborated further, specifically differentiating her genital reconstruction surgery from sexual reassignment surgery in the statements she made as follows:

ME - And again I want to clarify for our audience, when you say it was the birth defect we are not talking about a fully developed all male individual going and having a sexual reassignment surgery.

NA - That would not be at all an accurate description of what happened for me, umm, because I was an underdeveloped, umm, and not past the age of two or three years old did I develop anatomically, genitalia.

However, from a purely technical, surgical, and medical, perspective, the surgical procedure Nikki Araguz received from Marci Bowers, MD in Trinidad, Colorado, was precisely the same surgery given to transsexual women. Nikki Araguz's characterization of it is that she believes the surgery had different implications with regard to her because she has AIS, not because she believes a different surgical procedure was performed on her. Dr. Bowers is one of three or four surgeons in North America who specialize almost entirely in providing genital reconstruction surgery to transsexual and intersex/hermaphroditic patients.

From a legal perspective, in terms of legal strategy and having some sociological influence, Nikki gave the impression during the interview that she was differentiating and distancing herself from transsexual women in an attempt to give the general public the impression she is somehow more female than transsexual women by virtue of the intersex/hermaphroditic AIS condition with which she was born. She did speak carefully and thoughtfully though, about the specific issue of her defense of her marriage, and any potential relationship to her cause that may exist within the transsexual population and among people born with intersex/hermaphroditic medical conditions. Near the end of the interview, Nikki's thoughts on this subject were:
ME - A lot with this story is being morphed into gay marriage now, and they are talking about ramifications from that. How do you view your marriage?

NA - I view marriage as, as any loving commitment between two people, period. And I am not trying to be a platform for anyone, except for my own marriage at this point. Whatever comes as a result of that in helping anybody else, helping anybody else be able to have equal civil liberties, then, so be it.


ME - Being put into the spotlight that you have, I’m sure that you get both sides of the spectrum reacting to you. How do you weather through that?

NA - Honestly, I, it is very difficult. I, I’m still grieving the loss of my husband and it is preventing me from doing that in a lot of ways, it’s um, but I weather through it because I believe so strongly in my marriage and in the love that Thomas and I shared that I am not going to stop fighting for the truth and the equality.

Her statements just above give the impression, apologetically but emphatically, that she is interested first in protecting the validity of her own marriage, and whether any other single person or group of people might gain similar recognition or civil marriage equality rights if her attorneys are successful in litigating her case, appears to be of only secondary concern to her. Her sentiments are certainly valid, but for activists and enthusiasts in the transsexual population who hope that Nikki Araguz is going to be their champion to obtain marriage equality for transsexual people in Texas, it appears that Nikki Araguz is not interested in being their poster girl. If the attorneys for Nikki Araguz fail in the trial court and again on appeal, the consequences of her case could effect thousands of similarly situated people who currently live in Texas. That is another fact that the major news media as ignored entirely, the fact that thousands of marriages similar to the one entered into by Nikki and Thomas Araguz exist in Texas, and they exist in a state of legal limbo, and in a state of potential legal jeopardy for the intersex or transsexual person who is a party to them.

Among the unfortunate characterizations made and implied by the interview is an implication that transsexual females aren't actually female after surgery, maintaining the bigoted and oversimplified "born a boy always a boy" notions trumpeted incessantly by most of the Texas media about Nikki Araguz and by the attorneys representing Heather Delgado, Frank Mann and Chad Ellis. Nikki Araguz herself, attempts to characterize herself as a more legitimate female than transsexual females because she was apparently born with partial Androgen Insensitivity Syndrome (AIS) (see the separate detailed article on that topic on this site). While such a characterization may have some small chance of helping her legal case, and may possibly help generate public sympathy for her from at least a small portion of the uninformed and mostly bigoted Texas population, such a characterization also has the side effect of throwing transsexual females under the bus so to speak, tacitly ceding to her interviewer that maybe transexual women who have undergone the same surgery by the surgeon who performed genital reconstruction surgery on her, are somehow less female than she is. Ironically, her surgeon, Marci Bowers, MD, is a post-surgical-transsexual woman, who received her own genital reconstruction surgery from another American surgeon, Toby Meltzer, MD. The scientific fact is that the popular argument among bigots that sex chromosomes are the one and only determinant of physiological human sex/gender is entirely specious anyway. Ironically, such incorrect and misguided notions about the nature of physiological human sexuality also undercuts the argument made by Nikki Araguz as well, that somehow having AIS, a genetic condition that makes a person unable to respond to testosterone, places her in a different category from transsexual women. Curiously, in the video interview above, Nikki Araguz also appears to misspeak and calls her condition a "Transgender Syndrome", a misnomer she appears to have made up on the fly.

Another disturbing aspect of the interview, which Ernie Manouse pressured Nikki Araguz about repeatedly, is the issue of disclosure, with the tacit implication that transsexual people, or even intersex people, have some sort of social and/or moral obligation to disclose their medical condition to others. If every individual in our society is going to be required to disclose every single private, medical, or other, fact about themselves to others in order to be considered honest, it seems like social discourse and human relationships would grind to a halt. The idea that lack of disclosure to another about one's self constitutes dishonesty seems patently bizarre.

The interviewer Ernie Manouse also broaches another unsettling notion, the preposterous idea the general populace somehow believes that it couldn't be possible for someone to love an intersex/hermaphroditic person or a transsexual person. The fact is, there are likely hundreds of marriages like the one between Nikki and Thomas Araguz in Texas, and thousands of such marriages throughout the United States. Ernie Manouse subtly gave the impression that the general public disbelieves that Thomas Araguz could have fallen in love with Nikki Araguz knowing that she is possibly intersex/hermaphroditic and possibly transsexual by virtue of having undergone genital reconstruction surgery, especially having met her and married her before her surgery. Such a notion insults both intersex and transsexual people, and fosters the absurd implication that intersex and transsexual people are somehow less worthy of love as human beings than other people. Anyone who has read the comments attached to newspaper articles about Nikki Araguz has seen this irrational hatred expressed in unequivocal terms by countless average people.

Among the many curious aspects of news coverage about intersex/hermaphroditic people and transsexual people is that it has been occurring for forty or fifty years, but apparently without actually penetrating the psyches of average people. Even after those forty or fifty years of media coverage and attempts at so called public education, every time the topic arises in the news, the topic is treated as though it is the first time it has ever been publicly discussed. One has to wonder how fifty years of efforts on the part of non-profit organizations and medical experts to discuss these topics doesn't seem to have resulted in any significant public education. Instead, it seems that with each new media exposure intersex/hermaphroditic people are treated with increased derision, fear, and hatred. What is equally disconcerting, as that the people expressing such negative sentiments seem completely unable to recognize the bigoted nature of their behavior, and the manner in which their behavior is an analog for racist attitudes that were freely and publicly expressed by the majority until the 1970s. Surely there are still racists and eugenists around, but in large part their bigotry is less acceptable. In the meantime, it seems like much of the general populace equates intersex/hermaphroditic people and transsexual people with something akin to Frankenstein's monster, no matter how physically and socially acceptable they may superficially seem.

Despite the foregoing, it seems essential to reiterate that despite Texas culture, many people throughout the U.S. hope that Nikki Araguz prevails with her attorneys in her defense of her marriage. An attorney interviewed later in the same television program during which the interview above aired, projected that the eventual outcome for transsexual people and for intersex/hermaphroditic people will depend on whether or not the U.S. Supreme Court eventually upholds the recent California federal district court ruling by judge Vaughn Walker that banning same-sex marriage is a violation of due process and equal protection rights accorded all Americans under the U.S. Constitution and its amendments. That result will hopefully prevent intersex/hermaphroditic people and transsexual people from being caught up in a political maelstrom that shouldn't really apply to them, but is used against them by opponents of universal marriage equality, because such bigots incorrectly conflate intersex/hermaphroditic and transsexual people with gay and lesbian people.

Nikki Araguz - PBS Interview Transcript

What follows is a complete transcript of an interview that Nikki Araguz gave Houston PBS news anchor Ernie Manouse. The interview was apparently recorded on August 4, 2010, and originally broadcast on August 6, 2010. It appears to be unedited other than with regard to camera angle switches. The interview lasts about eleven minutes.

  • EM = Ernie Manouse
  • NA = Nikki Araguz

The complete interview transcript:

EM - Nikki Araguz joins us now, and first off before we begin, our sympathy goes out to you in the loss of your husband, we are very sorry about that.

NA - Thank you.

EM - We’re also very concerned how when somebody losses someone to suddenly be thrown into the media spotlight, and we hope that we don’t add to your stress in this conversation. And, as we have said and will continue to throughout the show, we are not here to re-try the case, we are here to understand your story, and hear where you came from.

EM - I guess my first question is, you consider yourself to be a woman, end of story.

NA - Yes. Right.

EM - People out there are assuming and confused by the difference between transgendered, intersex, what is the classification you find yourself in, how do you define who Nikki is.

NA - I simply am a heterosexual woman. That’s how I define myself. I’m not a medical professional, but I know that I have been diagnosed with partial Androgen Insensitivity Syndrome, and that falls under a classification medically as a transgender syndrome.

EM - And folks have a problem getting past the idea, and they assume that when we talk in these that it is someone who was a male, born a male, grew up as a male, somehow felt they weren’t a male, so they had sexual reassignment surgery. That is a different condition than what you went through, correct?

NA - Completely, completely, I, in my growing up, even in my early years, my parents started to notice that I was not developing into a boy, umm, that I was developing into a girl, and sought medical professionals, umm, late 70s early 80s, nobody knew what was going on. And so umm, they just allowed me to continue to develop into the woman I am today.

EM - A lot of people ask the question, they are trying to figure out, if your husband knew, when he knew, outside of all that, because that’s, court is deciding all that, and you know your story of it, I’m curious how you breach the subject with someone when you meet them. When you are developing an intimate relationship with someone, how this topic comes up and how do you explain it?

NA - You know, that is something that I had to learn. As a teenager I broached it with fear, and anxiety, and umm, a lot of denial and hiding it. Not fully understanding where I was and also just being an immature teenager, not knowing how to answer those types of questions. But when I reached a certain point at nineteen, and realized that you know honesty up front about this medical condition, and the aspects of my life, needed to be spoken upfront, and honestly with whomever I was going to have a any sort of intimate relationship, whether it be a close friend, or someone who I was going to be involved with intimately.

EM - The reactions you saw, surprised you, what you expected, not what you expected?

NA - I actually was umm, it was generally always was just accepted, and, you know, umm, and the response was more of a “so what”, you know, I umm, my, much like my husband responded, you know, “I love you anyway”.

EM - I think people watching would say how? The concept is so foreign to a lot of folks that if their spouse were to tell them, “You know, I used to be something different than I was”, they would be caught off guard.

NA - But see, I don’t think I was ever something different than what I am. I may have been identified by one little letter as something different than, other than the female that I am now, but there was no difference in my personality and in my attitude and in the way I communicate, umm.

EM - I think that was the point I was trying to get at, is that when you are in a relationship with someone, there is so much more than just the perceived physical, that there is the person you know, so when things like this come out I think in a lot of situations people figure out a way to deal with what they are confronted with as opposed to being fearful or scared, you are still the person you were two minutes ago before you said that.

NA - Right. Exactly. Exactly. And that’s what Thomas’s heart was compassionate and loving, he, that’s the relationship we had.

EM - How did you two meet?

NA - We met at church.

EM - And the reaction, love at first sight, what happened, not love at first sight?

NA - It was definitely attraction at first sight. And umm, thank you, I love sharing that memory. A month a go was the umm anniversary of his death, and I umm, sorry, I, I miss him greatly. We spent, on our way out of church, we said hello to each other on our way in, and on our way out he invited me to eat breakfast, and we went and spent three hours talking and what turned into laughter and you know and just the terrific development of our relationship.

ME - A lot of people surprised by the attention this is getting. I’m sure you are at the top of the list of who you are. You ran for Mayor of your town.

NA - I did.

ME - Which makes me think that there wasn’t a part of you hiding or shut away. Did you expect during the Mayoral race that this would all come out?

NA - Honestly, we lived such a quiet, private, little life. I mean I published a magazine. I was very well known in our community. I, umm, I participated a lot in community events and activities, and I embraced the community of Wharton, and loved it so much that I wanted to help it. That is why I started the company I did. And um, and that’s why I, you know, supported my husband through that, and through going to school to be the firefighter, police officer, EMT, that he came to be during our marriage.

EM - But at no time did you think, “I’m running for Mayor, people are going to find out this secret”. (air quotes with fingers).

NA - I guess I never really though of it as a secret but I guess I had put a part of my past behind me, because after my surgery I really didn’t think about it anymore, because it was the birth defect that had been removed and it was just like gone.

ME - And again I want to clarify for our audience, when you say it was the birth defect we are not talking about a fully developed all male individual going and having a sexual reassignment surgery.

NA - That would not be at all an accurate description of what happened for me, umm, because I was an underdeveloped, umm, and not past the age of two or three years old did I develop anatomically, genitalia.

ME - A lot with this story is being morphed into gay marriage now, and they are talking about ramifications from that. How do you view your marriage?

NA - I view marriage as, as any loving commitment between two people, period. And I am not trying to be a platform for anyone, except for my own marriage at this point. Whatever comes as a result of that in helping anybody else, helping anybody else be able to have equal civil liberties, then, so be it.

ME - How does the poster child term feel to you?

NA - I don’t like that. I realize that is probably where I am at, umm, but I don’t necessarily, that is not what I signed up for. I, I was a housewife and you know ran a magazine, and loved my husband and my children, and rode my horse. This was my life prior to my husband’s death, and um, with the lawsuit that was brought on, I was thrust into the media.

ME - Being put into the spotlight that you have, I’m sure that you get both sides of the spectrum reacting to you. How do you weather through that?

NA - Honestly, I, it is very difficult. I, I’m still grieving the loss of my husband and it is preventing me from doing that in a lot of ways, it’s um, but I weather through it because I believe so strongly in my marriage and in the love that Thomas and I shared that I am not going to stop fighting for the truth and the equality.

ME - We thank you so much for taking the time to come in and share your story with us, helping our audience understand a little bit more what’s going on, and again our sympathy for the loss of your husband.

NA - Thank you.

ME - Nikki Araguz, thank you.

NA - Thanks.

(end of interview with Nikki Araguz)

Wednesday, August 11, 2010

the media's yellow journalistic smoke screen

Throughout much of the media frenzy surrounding the Delgado v. Araguz probate lawsuit, the press has avoided discussing the law, the legal issues, and the relevant facts, that apply to the validity of the marriage between Nikki and Thomas Araguz. Instead, the media has primarily pursued a public inquisition of Nikki Araguz; based mostly on hearsay, speculation, and innuendo, little if any of which is relevant to, or admissible in, the court proceedings on which the media has been reporting. While the media pursues Nikki Araguz, it is also apparent to many observers that these same sensationalizing yellow journalists (1) have steered clear of publishing any personal information about the late Thomas Araguz's ex-wife, Heather Delgado, or his mother Simona Longoria, who are together responsible for filing the lawsuit that has created the public uproar over Nikki Araguz's marriage. As plaintiffs, Delgado and Longoria could drop their lawsuit at any time, but instead they have maintained a continuous public barrage of bigoted defamation against Nikki Araguz, all the while exclaiming their supposed interest in the needs of Thomas's children. However, it seems like the children's interests might have been better served if Delgado and Longoria had never filed their lawsuit against Nikki Araguz in the first place, and had not thrust themselves, Nikki Araguz, and Thomas Araguz's children, into a national spectacle.

Nikki Araguz (left) with her husband Thomas Araguz
Meanwhile, the various forms of verbal deception and misrepresentation practiced by the media seem worth examining, and worth juxtaposing with some assessments of what is relevant to a court of law regarding the law and the facts of this case. At the heart of this media barrage of irrelevant character assassination, inadmissible hearsay, and mischaracterizations of Nikki Araguz in attempts to attack her credibility, is an undercurrent of bigotry and vilification of all transsexual and intersex people that assaults not just Nikki Araguz, but the entire intersex and transsexual population, and objective public conscience.

A prime example of this deceptive yellow journalism is the recent commentary article written by Lisa Falkenberg and published in the Houston Chronicle. While Falkenberg's article's first sentence begins by claiming to address what has been lost in the headlines (the sons of Thomas Araguz), her article goes on to remain lost in the same sensationalism and avoidance of verifiable facts that has generated those very headlines. If as Falkenberg says, Thomas Araguz's nine year old son Trevor is still waking up crying for his father, and his younger son Tyler still doesn't understand that his father has died and is still waiting for him to come home, why didn't their mother Heather Delgado and their grandmother Simona Longoria focus on their emotional needs rather than on filing a lawsuit and spending their time focused on hurling verbal epithets at Nikki Araguz? Falkenberg goes on to describe the children as the only "innocents". However that deceptive language makes the inference that there is something less than innocent about Nikki Araguz. This lawsuit concerns only one issue really, which is who inherits the proceeds of Thomas Araguz's financial estate. It is not about the character of the individuals involved at all, and their character is not a legally determining factor. For Falkenberg to bring innocence or guilt into judgments about a civil legal proceeding that is strictly about the inheritance of money is quite devious.

Falkenberg's devious writing goes further when she places "our children" in quotes when referencing a statement made by Nikki Araguz, in an effort to signal to readers that Falkenberg questions the credibility of that characterization, when in fact nobody disputes the fact that Nikki Araguz had been caring for those two children over the course of the past two years, and during that time had been a step mother to them. Using the double quote method of attacking the credibility of characterizations, Falkenberg goes on to place the phrase "birth defect" in double quotes, without giving details about the fact that Nikki Araguz's own mother has reported that Nikki was born with partial "androgen insensitivity syndrome" (AIS) (2), in which a person's body is unable to process or respond to testosterone. The Houston NBC television station's web site reported on this as follows:
... they said Nikki Araguz suffers from a rare birth defect called complete androgen insensitivity syndrome, where a person has all of the physical traits of female, but has no uterus.

"This is not a case of someone who took hormones to prevent from developing into a male. This is a case of a person who was born with a defect," said Nikki Araguz's mother.
While the description quoted just above is slightly medically and scientifically inaccurate, it at least demonstrates that the evidence presented about Nikki's congenital medical condition is more than an obtuse reference without further explanation as Falkenberg contends. Some of the best evidence presented thus far that Nikki was born with the AIS condition, has been the video documentary made of her at age nineteen, in which it is obvious that her body then, and even now, has never been influenced by testosterone. At age nineteen, without any exogenous estrogen treatment, Nikki's body was that of a normal looking and quite beautiful woman. Any responsible journalistic presentation of those facts would include some scientific and medical explanation of that condition and the practical impact it has on the lives of people born with it. However, no such explanations about the relevant science have appeared in the corrupted work of the yellow journalists reporting on this event in Texas. To do that would give Nikki Araguz and her mother credibility, and would give credence to the statements she has been making, which appears to be something the Texas news media seems loath to address. A detailed article on the science of sex determination is available on this site.

Then Falkenberg reveals her own personal bias about the case. However, Falkenberg fails to backup her claims and conclusions with supporting evidence or basis. Instead, Falkenberg simply leaves the impression that much of the Texas press has made, that she has pre-judged the situation without ever giving due consideration to the most relevant facts, and has chosen instead to pass personal judgment on Nikki Araguz based on irrelevant character assassination factors. The conclusion Falkenberg reaches midway through her article is that:
It's getting harder and harder to believe, though, that Nikki's motives are really about the children's well-being, or the marriage rights for transgender Texans, no matter how much transgender activists need her case to help their worthy cause. It seems increasingly probable she's just out for the money.
Falkenberg's conclusions are ridiculous for numerous reasons. First of all, Heather Delgado is the person who created the current legal warfare against Nikki Araguz, and it is Heather Delgado and Simona Longoria who are the people pursuing their quest for money that would otherwise belong to Nikki, with the clear implication that they are the greedy people, not Nikki Araguz. Their lawsuit against Nikki Araguz is a fool's errand anyway, since attorneys fees are likely to consume whatever financial gain they might otherwise receive from it. Of equal importance is the fact that there isn't any way for Nikki Araguz to defend the validity of her marriage to Thomas Araguz, while disconnecting her defense of it from her right to inherit his financial estate. Falkenberg's conclusions also fail to address the central and verifiable facts, which include the undisputed fact that Thomas Araguz explicitly named Nikki Araguz the beneficiary of his life insurance policy and his pension plan benefits, and he even had the presence of mind to check the "other" box rather than the "spouse" box so that there wouldn't be any question about his intention to leave his estate to Nikki Araguz. Furthermore, while the plaintiffs have made primarily hearsay claims about what knowledge Thomas Araguz had regarding Nikki Araguz's medical conditions, AIS, transsexualism, or both, the email messages between Nikki and Thomas Araguz are pretty strong evidence, of which backup copies probably exist on an internet service provider (ISP) server, and the full transmission headers and ISP logs surely corroborate their authenticity. Darrell Steidley, one of the attorneys for Nikki Araguz has also filed an affidavit created by Thomas Araguz before this death in which he describes the truth of this knowledge about Nikki's medical condition, surgery, etc., and that he lied during the April 2010 deposition taken of him during the previous child custody lawsuit. Meanwhile, the pragmatic circumstances of Nikki Araguz's medical condition alone make the assertion that Thomas Araguz didn't know the configuration of Nikki's genitals preposterous, since it doesn't seem like any reasonable person would believe that he wasn't aware of the what genitals his wife had while sleeping with her for two years. Nobody seems to refute that Nikki Araguz had genital reconstruction surgery with Marci Bowers, M.D. (3) of Trinidad, Colorado on October 7, 2008, and anyone with even a cursory knowledge of such surgery or who has taken a few minutes to read Dr. Bowers' web site would realize that the ongoing post surgical care (4) is such that there is just isn't any way such a husband wouldn't know what was going on with his wife. The mere fact that Nikki Araguz was in Trinidad, Colorado for surgery leaves no question about the nature of surgery, since genital reconstructive surgery for transsexual people is pretty much all that Marci Bowers, MD does.

Falkenberg goes on to repeat the media's attacks on Nikki Araguz by asserting Nikki's history of petty criminal acts, and her admission that she and Thomas Araguz perjured themselves in an April deposition in an earlier but apparently ongoing, lawsuit over custody of the children. Certainly that perjury implies lack of judgment on Nikki's part and a lack of awareness about the legal system, but the present probate/inheritance lawsuit is not about personal judgment. This lawsuit about the legality of a marriage between a post-surgical intersex and/or transsexual female and a man who ostensibly had an XY sex chromosome pair, and her consequent right to inherit, which is an issue at law, not character or fact. Parenthetically, another important and relevant fact is that neither the DNA of Nikki Araguz nor the DNA of Thomas Araguz has yet been tested to determine the status of either of their sex chromosomes. It is possible that Thomas Araguz could have had mosaic chromosomes such as XYY or XXY, and not XY, and might still have been fertile enough to father children. For all we know, Nikki Araguz might have XX, XY, XXY, or XXXY sex chromosomes. Although there are other sources, the book "Man & Woman, Boy & Girl" by John Money (5) includes a survey of the various possibilities, as does Albert J. Solari's book, "Sex chromosomes and sex determination in vertebrates" (6), in which both describe the various biological mechanisms by which females with an XY sex chromosome pair are possible. What neither the court in Littleton v. Prange, nor the current news media, have considered, is the vast complexity of human biological sex morphologically, with its many possibilities other than simply XX female and XY male, and the medical, sociological, and legal implications of those complexities. What is relevant to the probate case are those medical facts about Nikki Araguz and Thomas Araguz, which the parties and the court will need to examine and determine, and which do not involve any of the media's irrelevant character assassination of Nikki Araguz. What is also legally relevant is the minor 2009 statutory change to Texas marriage law, and the decision in Littleton v. Prange. However, in order for a court to properly consider Littleton v. Prange, it will need to hear expert witness medical testimony about the genetic and morphological makeup of the parties, including DNA evidence, and physical examinations, before it could even honestly apply Littleton v. Prange. Neither that medical information, the facts about the genital surgery Nikki Araguz received from Marci Bowers, MD, or the intimate details of the what knowledge Thomas Araguz demonstrably had about her condition are character related.

Falkenberg concludes her article by quoting apparent statements from Simona Longoria, the mother of Thomas Araguz, in which Longoria claims that:
For her part, Longoria said she just wants the ordeal over, and for Nikki, and the publicity, to go away so her family can grieve. If Nikki ends up proving her marriage to Thomas was valid and gets the money, so be it, Longoria says. The family would move on.

"This has nothing to do with anybody being gay. This has nothing to do with anybody being transgender. It doesn't. That's not our fight," she says.

Her fight, she insists, is protecting two boys who lost their dad.

If only that were the priority for all concerned.
If Simona Longoria's priority actually were the best interests of Thomas Araguz's sons, financially and emotionally, it appears that their interests would have been served best if Longoria and Delgado had never filed suit against Nikki Araguz, since any financial gain from the lawsuit will surely be squandered on attorney's fees. In fact, Simona Longoria likely doesn't even have legal standing to be a party to the lawsuit in any event. However, Falkenberg's article fails to mention that the attorneys representing Nikki Araguz have already filed a motion to have Longoria removed as a party from the lawsuit on that basis.

Falkenberg's article isn't the only example of such yellow journalism, of journalism corrupted by a tacit if not entirely direct agenda whose primary intent is to generate public disfavor toward Nikki Araguz. The themes in Falkenberg's deceptive article are echoed throughout the Texas press and media, and even in some national accounts of the lawsuit. One example is a more recent article that has appeared in the Washington Times about the Delgado v. Araguz case. It was written by Kathryn Watson, who is apparently an intern at the Washington Times while a journalism student at Biola University, a right wing Christian evangelist college in California with an obvious political agenda that would render Watson anything but an objective journalist about the topic at hand. In fact, Kathryn Watson's article lacks even a basic level of fact checking or accuracy. Instead, the Washington Times article by Watson, is actually another tainted work of misrepresentative and often fictional speculation among the deluge of corrupted press surrounding the Nikki Araguz case.

Another serendipitous bit of timing with regard to the Nikki Araguz case is the August 4, 2010 federal court ruling in California regarding marriage. It is unfortunate that the Delgado v. Araguz case seems likely to make its way through the trial court and its appeals before a U.S. Supreme Court (SCOTUS) decision is made about the legality of limiting marriage only to one ostensible XX female and one XY male. If the SCOTUS were to uphold the concept that banning same-sex marriages is unconstitutional, it wouldn't be legal or relevant for Texas courts, or any U.S. court to question the sexual morphology of the partners to any marriage any longer.

(1) Yellow journalism:

(2) Androgen insensitivity syndrome:

(3) Marci Bowers, MD:

(4) vaginoplasty post operative care:

(5) John Money, "Man and Woman, Boy & Girl"

(6) Albert J. Solari, "Sex chromosomes and sex determination in vertebrates"

Tuesday, August 10, 2010

sex/gender determination - not just XX or XY

Much ado has been made over the sex status of Nikki Araguz. Most people have an over simplified and misguided understanding of what determines male or female in mammals, and of the significance of biological sex/gender. In fact, genetically, physiologically, and pragmatically, sex/gender is only a minor biological attribute in human beings. There are even numerous biological variations that produce people who are neither strictly male or female. Some of the variations are primarily genetic in nature and some are hormonal conditions that are the product of specific genetic conditions. What is most important for people to understand though, is that nature can produce XX male people and XY female people under a variety of conditions, in addition to the usual XY male and XX female, plus numerous genetic intersex/hermaphroditic conditions, many of which involve mosaic sex chromosomes such as XXY, XYY, XXX, X0, 0Y, genetic mutations. Consequently, it is scientifically inaccurate for uninformed people like the attorney Chad Ellis, who represents Heather Delgado in her lawsuit against Nikki Araguz, to claim categorically that genes are the sole determinant of sex/gender and that such genetics render biological sex/gender immutable at conception. Such a claim by Chad Ellis is patently false, in addition to being uninformed.

Primarily sex/gender in humans is determined by a specific gene called the "sex determining region"(SRY) (1), where there is a specific protein containing the "testis determining factor"(TDF) (1). However this gene can exist in various mutated forms. One mutation called Swyer Syndrome (2) causes total "gonadal dysgenesis" and consequently produces an XY female person who is born with female genitalia, but without any internal gonads or a uterus. Another mutation translocates the TDF factor onto an X chromosome, which produces an XX male person, and is called "XX male syndrome"(3).

Nikki Araguz at about age nineteen
In addition to the testis determining factor, in order for a person to develop as a male, the gene that controls the androgen receptors in each cell must also function to produce male characteristics. When the gene for the androgen receptor doesn't function correctly, a condition called Androgen Insensitivity Syndrome (AIS) [4] occurs. The AIS mutation can cause either complete insensitivity to androgens (testosterone), or partial insensitivity to androgens. In cases of complete AIS, the person is born with female genitalia that includes a vagina, nondescript gonads in the position of ovaries without clear characteristics for either sex, but without a uterus. In cases of partial AIS, the person can be born with either ambiguous genitalia or with apparently male genitalia, but because such people do not respond to androgens, their genitals often don't develop any further after birth, at puberty, or during adulthood.

It seems apparent that Nikki Araguz was born with partial Androgen Insensitivity Syndrome, possibly with genitals that appeared relatively normal at birth, but which could not grow any further because her body doesn't respond to androgens (testosterone). The video documentary of Nikki Araguz that was made while she was in college at the age of about nineteen or twenty provides excellent evidence of her genetic condition. In the video Nikki Araguz has all the facial features and characteristics of any ordinary female, and a matching small stature and frame. Given the genetic condition Nikki Araguz was born with, there isn't any way that her body could ever develop into a fully adult male one because even exogenously provided testosterone would not have had any effect on her.

It should be noted that cells through every person's bodies have both androgen and estrogen receptors. Some areas of the body have specific estrogen or androgen receptors that produce obvious results. For example androgen receptors in facial hair follicles produce a facial beard when stimulated by androgens/testosterone. Consequently a person will develop a beard regardless of having an XX or XY sex chromosome pair if they are given testosterone and if they have working androgen receptors. This is why XX transsexual-men who are given testosterone develop beards and lowered voices. However, such testosterone treatment would not have any effect on someone with AIS, such as Nikki Araguz. Similarly, anyone with working estrogen receptors who is given adequate estrogen and progesterone will develop breasts, as is the case for transsexual-women who take estrogen.

As for Nikki Aarguz, even without genital reconstruction surgery, and despite presumptively having an XY sex chromosome pair (apparently not yet confirmed with DNA testing), she was never truly male because her body is only able to respond to hormones in a female manner. Given a full understanding of the science of sex determination, it seems that given a "reasonable person" standard, it makes complete sense for Nikki Araguz to be medically treated to enable her to live a fully female life since her body wasn't able to develop as a male at birth, or throughout her life, in any event. Hopefully the attorneys for Nikki Araguz will have the opportunity to present this level of expert scientific testimony to the Texas Court considering whether or not she should be considered legally female.

(1) sex-determining region -

(2) swyer syndrome -

(3) xx male syndrome -

(4) androgen insensitivity syndrome -

(5) x chromosome -

Monday, August 9, 2010

Nikki Araguz Supporters Release New Video

Some associates of Nikki Araguz have published a brief portion of a recent interview with Nikki. Neither the location of the interview or the name of the woman asking Nikki questions were not disclosed in the video caption. In the interview, Nikki states that Heather Delgado, Simona Longoria and other members of their family were told about Nikki's medical history by Nikki and Thomas Araguz in April 2010. However, during the interview Nikki doesn't offer any supporting information or corroborating documents that could be used as evidence in court to support her statements about an apparent meeting between Nikki and her husband Thomas, and Thomas's family. The timing of that encounter is curious because it seems to coincide with the depositions that Thomas Araguz gave in the previous child custody lawsuit, in which they perjured themselves. It doesn't make sense that they perjured themselves after also having told Heather Delgado and Simona Longoria the truth, unless their disclosure preceded and instigated the child custody lawsuit. Later during the questions on the brief video below, when Nikki Araguz was asked if she considers herself "transgender", she replied that she believes she is female.

Given Nikki Araguz's recent admission that she and her husband Thomas committed perjury during an April 2010 deposition in a previous child custody lawsuit, it seems likely that Nikki may have a difficult time persuading a judge that her statements have credibility unless they are proffered with convincing supporting evidence. If some form of verifiable digital or written evidence exists to support her statements, such evidence might enable her to persuasively make statements during any new deposition, or future courtroom testimony, and provide documentary evidence that supports her statements, thereby enabling her to withstand challenges on cross examination that she has committed perjury previously and that she has a history of convictions for various petty crimes.

In any event, it doesn't seem like Nikki's revelation about the timing of the disclosures she and her husband made to Heather Delgado and Simona Longoria make much difference regarding the core foundation of her defense against them. The only claim of Heather Delgado's that it seems like the timing of the disclosures to them would be relevant to is the fraud cause of action against Nikki. However, the Fraud claim seems based upon Heather's Delgado's contention that Nikki defrauded Thomas with regard to their marriage. it doesn't seem like there is any fact pattern in the relationship between Nikki Araguz and Heather Delgado that could support a fraud claim involving their relationship. However, the best evidence that has been published thus far to document Nikki's contention that Thomas Araguz knew about Nikki's medical history are the October 2008 email messages between them while Nikki was in Trinidad, Colorado, where Marci Bowers, MD, apparently performed genital reconstruction surgery on Nikki to create a vagina for her. In addition, the mere timing of that surgery, and the post-surgical care involved with such surgery, would make it seem all but impossible for Thomas Araguz not to have been aware of what was going on medically with Nikki Araguz and her genitals.

However, even if the court views that evidence in a light most favorable to Nikki Araguz, she and her attorneys must still overcome what seems like a rather thin "common law" marriage assertion, based on the September 1, 2009 change in the Texas Marriage Statute to succeed with a claim that she was legally married to Thomas Araguz. Such a legal argument seems like an uphill battle, especially in a hostile Texas court. If Nikki Araguz and Thomas Araguz had applied for a marriage license after September 1, 2009, it seems like they would have a stronger case, although not one with any assurance of persuading a Texas judge to rule in her favor. A lawsuit like this one doesn't seem likely to be won or lost in a few weeks either. It seems like that at least some period of months will pass before either a summary judgment proceeding or a trial in this case. More than likely, either or both parties will file a motion for summary judgment before the court without a trial within a few months, rather than waiting to go to trial. What seems most important to understand about the process of this litigation, is that everything which happens in the trial court is only preparation for what is likely to be a case decided by one or more appeals courts. The attorneys for Nikki Araguz have a huge responsibility before them, which is to persuade the judge to allow them to fully develop and fully present their evidence and legal arguments thoroughly, so that the appellate process that follows has something adequate to work with, including all their factual, documentary evidence, appropriate expert medical evidence, and testimony from appropriate supporting witnesses.

The attorneys for Heather Delgado, the plaintiff, and biological mother of Thomas Araguz's two children, who are the actual parties at interest, seem primarily interested in obtaining a quick decision from the court. Those attorneys, Chad Ellis and Frank Mann, seem to have overlooked the likelihood that this case will be appealed no matter who obtains a favorable verdict, and the money at issue kept frozen in the interim until a final appeals court decision occurs, and that could take years.

It seems like Nikki Araguz and her local supporters could serve their interests better by publishing their own videos with copyright attribution, rather than allowing Nikki Araguz to be exploited and abused by the local television stations and newspapers. What would make better sense yet would be to have an appropriate and skilled representative speak on her behave, since every one of her direct statements could be used as evidence by the plaintiffs who give the impression of wanting to litigate aggressively.

Sunday, August 8, 2010

Upcoming Motion Hearing - August 16, 2010

Amidst the horrifically inaccurate and lurid newspaper and television reporting, a few new facts about upcoming events in the lawsuit have arisen.

Nikki Araguz
Defense attorneys for Nikki Araguz (left) have filed a Motion to Dismiss, apparently on the grounds that the plaintiffs have made claims upon which relief cannot be granted, a legal term of art. This is a normal and expected aspect of civil lawsuit proceedings. Although it does not seem likely that the judge will grant the defense motion, it is the duty of the defense attorneys to do so, and such a motion is a part of documenting the foundations of the defense case, one which seems likely to be considered by an appeals court in the future. As expected, Darrell Steidley, one of the attorneys for Nikki Araguz, has also filed a motion to have Simona Longoria removed from the lawsuit on the basis that she does not have standing to make a claim. The term standing means having the ability and the right to be party to a given lawsuit. Heather Delgado does have standing because she is the mother of the Thomas Araguz's sons, who are the actual party at interest in the probate lawsuit, but who cannot represent themselves or be parties to the lawsuit directly because they are minors. The defense motion  by attorneys for Nikki Araguz to dismiss the case is set for an oral hearing before the district court in Wharton, TX on Monday August 16, 2010. It seems likely that the court will also hear the defense motion on modification of the temporary restraining order, and begin consideration of other customary procedural matters. Altogether it seems likely that the judge will be asked to consider all these issues, and it appears that both sides have already filed their written motions and supporting briefs.

Attorneys for the plaintiffs, Heather Delgado and Simona Longoria, have meanwhile reported their intention to file a motion for Summary Judgment by the court without a trial, within the next two weeks. However, given the nature of civil lawsuit procedure, they will likely need to wait at least until the defense has filed an official written answer to the plaintiffs' petition, and the plaintiffs' attorneys will need to wait until a reasonable amount of discovery has been completed, otherwise the attorneys for Nikki Araguz can defend against the summary judgment motion with the argument that they need more time to gather evidence that would support their defense claims. The written answer the defense will need to file after the court hears its Motion to Dismiss, is a necessary formality that usually consists primarily of paragraph by paragraph denials of the plaintiffs' petition/complaint. Among the evidence it seems likely the defense will want to gather are medical records and testimony regarding the surgery Nikki Araguz has received, and the intersex/hermaphroditic condition she was born with, called Androgen Insensitivity Syndrome.

Among additional factual information that has been disclosed are that Thomas Araguz had apparently made an affidavit prior to his death containing the facts of his knowledge of Nikki Araguz, including Nikki's medical history and the potentially contentious nature of their marriage. The affidavit was apparently filed as an exhibit with the Motion to Dismiss the defense filed with the court on August 4, 2010. This means that, combined with the email messages Nikki and Thomas Araguz exchanged in October 2008 when Nikki was in Trinidad, Colorado have genital reconstruction surgery with Marci Bowers, MD, they seem to have ample evidence to establish that Thomas Araguz knew that Nikki Araguz was born with Androgen Insensitivity Syndrome (AIS), and although Nikki likely has an XY sex chromosome pair, the AIS condition meant that she could never function or reproduce as a male human being.

Another very important matter regarding the lawsuit does seem to have been informally settled by the parties regarding the various sums of money left to Nikki Araguz by Thomas Araguz. The plaintiffs are now agreeing with Nikki Araguz that a $60,000 retirement policy on which Thomas Araguz explicitly named Nikki Araguz the beneficiary and checked the "other" box regarding type of relationship does belong to Nikki Araguz and should not be contested as part of the lawsuit. However, the judge will probably need to sign off on this stipulation between the parties, since the judge had already frozen those and other funds as part of the previously entered temporary restraining order that prevents either party from accessing or spending any of the money the lawsuit is litigating over.