Saturday, September 4, 2010

Nikki Araguz - Possible Methods for Avoiding a Legal Battle Like Hers

While it may not be entirely possible for transsexual and intersex people to prevent or avoid the sort of legal calamity that currently consumes Nikki Araguz's life, there are steps that people can take that may help. What follows are descriptions of some of the various ways in which transsexual and intersex people may be able to protect themselves from the sort of real life legal and media onslaught that Nikki Araguz currently faces. The topics covered include: identity documents, estate planning, jurisdictional choices, and other defensive legal protections.

Transsexual and intersex people live in a world of legal uncertainty with regard to: legal sex status recognition, ability to marry, access to healthcare, rights to privacy, and so on. However, legal counseling during the medical treatment process for transsexual and intersex people appears to be one of the glaring omissions within such treatment protocols. Such omissions may account for the many instances of transsexual and intersex people finding themselves in situations without having made appropriate legal preparations. It seems like every transsexual and intersex person receiving medical treatment and counseling for their conditions should have some legal counseling included as part of the process. Sadly, that doesn't seem to be a priority for such professionals, all too often with embarrassing or even catastrophic results.

There are multiple areas of legal protections that are important, such as:
  • Transsexual and intersex people need to get all their identity documentation in order. The gold standard among these documents is a birth certificate with the correct name and sex designation on it. With an appropriate birth certificate, it is usually possible to persuade relevant governmental agencies to change a person's other identity records.
  • Every transsexual or intersex person needs to have estate documents, even if they own little or nothing. Estate documents such as a will, or a will and trust combination, are essential, no matter how young someone is.
  • Legal documents for medical care are also essential, including wishes regarding treatment when not consciously able to make one's own decisions, wishes regarding resuscitation, organ donation, blood transfusion, specifically naming hospital visitors, and so on.
  • Making strategic choices about where to live is also essential for transsexual and intersex people. Residential location within the U.S. determines legal jurisdiction, which can determine the difference between avoiding legal problems and experiencing the sort of legal nightmare that faces Nikki Araguz.

Choice of Residence

It seems worthwhile to address choice of residence first, since doing so can help avoid many of the legal problems that unfavorable jurisdictions create for transsexual and intersex people. For example, if the circumstances of Nikki and Thomas Araguz 's lives and marriage had enabled them to move to a more favorable U.S. state, Nikki could probably have avoided the lawsuit currently filed against her. People in the U.S. generally have few if any restrictions when it comes to choosing where they live. However, making strategic choices about where to live appears to be a huge psychological hurdle for many people, including transsexual and intersex people. Self help discussion web sites for transsexual and intersex people frequently contain discussions in which one person recommends that another person change their geographic residence, but they are often met with resistance.  Moving may be stressful to do at the outset, but the results for transsexual and intersex people could make all the difference when it comes to avoiding the problems created for transsexual and intersex people merely by living in certain jurisdictions.

For example, if Nikki and Thomas Araguz had moved to a state like Massachusetts after their marriage, they could probably have avoided the entire ordeal that Nikki Araguz currently faces. However, Nikki and Thomas Araguz had at least one very legitimate obstacle that would have made relocation a difficult choice. The problem is that the divorce decree between Thomas Araguz and Heather Delgado, his ex-wife, probably required Thomas Araguz to remain in Texas in order to maintain custody of his children. For Nikki and Thomas Araguz, separation from their children was probably a deal breaker with regard to relocation. Instead, they chose the many legal risks associated with remaining in Texas, legal risks that now haunt Nikki Araguz, the memory of Thomas Araguz, and their marriage.

For transsexual and intersex people who want to plan and structure their lives to avoid the sort of lawsuit Nikki Araguz faces, Texas is among a long list of U.S. states where transsexual and intersex people simply cannot reside, at least not until such states change their laws. States whose appeals courts have invalidated the post-genital-reconstruction-surgery legal sex status of transsexual and intersex people, and usually their marriages too, include: Ohio, Texas, Kansas, Florida, and others (2). At present, Connecticut and Massachusetts are the only states which have universal marriage equality and which issue such marriage licenses (3). Three other states, Vermont, New Hampshire, and Iowa recognize all marriages, but some ambiguity exists about whether those states will issue marriage licenses to all couples. Consequently, only the five foregoing states (3) are states where married couples that include one or more transsexual or intersex people, are likely to be able to avoid potential battles over the legality of their marriages, based on state law. Recognition by the federal government, with regard to income taxes, social security benefits, and other federal benefits that require marriage, is another matter. Given the dozens of possible configurations of people among married couples with one or more transsexual and/or intersex partners, there isn't much settled law about what the federal government and its agencies recognize. However, many such married couples seem to function unnoticed by the federal government, but are at serious risk of threat to their benefits if their marriage relationships were closely scrutinized by it.


Estate Planning Documents - A Will or Will and Trust

Even if living in one of the five legally safer U.S. states for married transsexual and intersex couples, all such couples should have appropriate estate documents drafted and executed. While a will is one component of essential estate planning documentation, the modern strategy is to create a will and a living trust. Among the major advantages of a trust is that in most states it enables the decedent's heirs to avoid probate court and to avoid delays in property and asset distribution. It is possible to research many of the details of wills and trusts online, to save money and time before getting the assistance of an estate planning attorney to create and execute finalized documents. Only a knowledgeable estate planning consumer can determine whether or not such final documents, created and reviewed by an attorney, actually communicate their wishes accurately. Online estate planning web sites are filled with discussions about the details of poorly drafted wills and trusts, and about how to improve them for greater clarity, to more explicitly and better document a person's wishes.

Another important consideration is that some aspects of estate planning require a trust, while others require a will. For example, for someone with pets who wants to set aside money for their care, that can only be done through a trust, not with a will, because a pet cannot be the recipient of a bequest in a will. A trust and its successor trustee can also do things like maintain web sites setup by its grantor/settlor during his or her lifetime, so that they can be maintained after death, although not in perpetuity. Additional arrangements are needed to create an ongoing entity to carry on such efforts after death in perpetuity, but that is something an experienced estate attorney can setup as well, which usually involves creating a legal entity called a foundation that is managed by the trust and successors of the trust. Conversely, a will is necessary to make designations for arrangements like treatment of a decedent's remains, whether cremation or burial, including details such as location of burial or disposition of ashes after cremation; whether or not a person agrees to organ donation, including restrictions on which organs; and other similar personal preferences.

It can be worthwhile to first read about these topics online (6), and to create an outline of one's wishes before approaching an attorney to draft final documents. Before creating a trust it can also be useful to read and become familiar with the Uniform Trust Code (4), which is now standard in twenty-two states, and to read some model trust documents to become familiar with their structure and contents. The parties to a trust are: the settlor/grantor (the person who creates the trust); the trustee(s), and successor trustee(s); and the beneficiaries. With a living trust (5), the creator of the trust (the settlor) is also its first trustee, until her or she dies, and may be a beneficiary as well. After the settlor/grantor's death, the person or people in control of the trust are the successor trustee(s), and the people who receive property from the trust are its beneficiaries. Sometimes a successor trustee is also a beneficiary.

Most of the text in a trust document is standard language that addresses a vast array of circumstances that can arise after death and includes provisions that give the trustee those powers over the trust, and by extention the decedent's estate. It is important that a trust document be complete and extensive because under trust law in most states, rights and powers not explicitly provided the trustee are not available to the trustee. Once past all the standard language, the core components of a trust may appear similar to a will, with some exceptions. For example, a trust can include provisions that distribute assets or property in installments, and under the supervision of the trustee. For example, a trust might provide that a trustee distribute educational and living expenses to a child beneficiary during childhood, and require the child beneficiary to wait until some specified age before receiving the remainder of the trust property, something a Will usually cannot specify.

There are numerous details involved in a trust that a qualified and experienced attorney can make certain are addressed. However, it is very important to learn everything possible about wills and trusts, since many a beneficiary has discovered only too late that language describing property left to them is unclear, ambiguous, and open to multiple interpretations. Consequently, it may be worth the effort to study the law and language of wills and trusts and make certain that such estate documents express one's wishes. The more straightforward, yet appropriately detailed, the core of the property and asset distribution language is, the less likely it is to create disputes when it becomes active after the settlor's death. For example, trusts and wills need to consider what happens if a beneficiary dies before the settlor, and must consider what happens when their are multiple beneficiaries, but one or more dies, or even if all beneficiaries have died before, or simultaneously with the settlor. For example, if an entire family dies in a car accident or plane crash, the wills and trusts of the family members need to consider who should receive the assets if all the family members are already deceased. To account for such conditions, the property distribution terms of wills and trusts are usually structured in sequences, with a primary beneficiary, one or more secondary/contingency beneficiaries, and a tertiary beneficiary if none of the named people can benefit. A tertiary beneficiary is usually a charity, institution, non-profit organization, or university.

It is also important to avoid a huge mistake people often make who have trusts created. They make the mistake of not funding their trust. It is essential to make provisions that transfer a person's assets into the trust, which is called funding. For example, once most people retire, they often have the title to their home changed to be owned by their living trust. It is sometimes possible to do the same thing with vehicles, which are also titled property. Personal property can be transferred into the trust using a simple document called an assignment, which can be written to automatically invoke upon a person's death. In addition bank accounts can be written with a joint tenancy where one of the parties is the trust. These techniques for property transfer to a trust vary from state to state, and should be executed with the help of an experienced estate attorney.

For transsexual or intersex people, the language in estate documents should also explicitly and carefully state that its distribution wishes should be deemed valid regardless of whether or not any married couple involved is considered legally married by the jurisdiction whose law governs the estate documents. However, only an attorney who specializes in wills, trusts, and estate law, can provide definitive legal advice about the specifics of such will and trust language details. It is also important that all estate planning documents be carefully executed, witnessed and notarized, and that the signatures of all parties and witnesses should be notarized separately and individually on the documents. In addition, all the estate planning documents should be numbered with 1. of x page numbering and each page should contain a blank for the grantor/settlor's initials, and such initials should appear on every page of every document to help prevent fraudulent changes afterward.

Every transsexual or intersex person should get a will or will and trust combination drafted and executed as soon as possible, to help avoid disputes after death like some of those faced by Nikki Araguz. However, it should be noted that even if Thomas Araguz had created a will and living trust, those instruments would not have prevented the lawsuit filed against Nikki Araguz by Heather Delgado. This is because wills and trusts are called testamentary documents, in which the decedent "testifies" as to their wishes. The large sums of money at issue in the lawsuit against Nikki Araguz are granted to the legal spouse of the deceased firefighter without any opportunity for the firefighter to explicitly designate a beneficiary or declare them as a testamentary bequest. In other words, such firefighter death benefits are not covered by wills or trusts, nor are they instruments like life insurance or pension policy documents in which someone is designated a beneficiary in writing by the policy holder. In fact, on the life insurance/ pension policy Thomas Araguz had as a firefighter, he designated Nikki Araguz its beneficiary. After some initial wrangling, Nikki Araguz has already received those funds, about $60,000.00, minus attorneys fees. However, if Thomas Araguz had drafted and executed a will, he could have avoided disputes about how the couple's personal property and other shared effects were to be distributed. Currently, there is some chance that Nikki Araguz may be stripped of much of the personal property she shared with her late husband, because the court named Simona Longoria, Thomas Araguz's biological mother, the administrator of his estate, and she has an adversarial attitude toward Nikki. That is a mishap Nikki and Thomas Araguz could have avoided with a carefully prepared Will or Will and Trust.


Health Care Directives and Power of Attorney

Another category of legal documents that is important for all transsexual and intersex people to have are healthcare management documents. All too often a transsexual or intersex person becomes incapacitated, only to discovery during and/or after their recovery, that hostile biological family members have taken over their lives and made decisions about their care and their lives they don't agree with. Such actions often include forbidding people the incapacitated person cares about them from visiting them. The laws about healthcare power of attorney and healthcare living will documents vary among U.S. states. Consequently, an attorney should be consulted before finalizing and executing such documents, and such documents should be reviewed by a local attorney when changing residence from one state to another. Time and money can be saved by researching these types of legal documents online and creating one's own draft to be reviewed by an attorney, rather than paying an attorney for the time required for detailed consultation and drafting them from scratch.

A healthcare power of attorney, designates someone the creator trusts, to make decisions about the creator's healthcare under certain circumstances when the creator is unable. The healthcare power of attorney can also dictate the protocol that must be employed to invoke it. The circumstances that usually cause such a power of attorney to be invoked include its creator: becoming unconscious, being unable to communicate, being in a persistent vegetative state, having been declared legally incompetent (as a consequent of brain damage due to illness or accident, such a Alzheimer's disease, severe stroke, or a severe head injury), or becoming otherwise totally incapacitated. While such circumstances may be uncomfortable to contemplate, by designating a trusted person beforehand, and by a creating power of attorney document that describes one's wishes both in detail and with flexibility, it is usually possible to avoid having a default person, which could even be an adversarial biological family member, or a person who may have differing beliefs, make such decisions.

A healthcare power of attorney can describe how the person with the power of attorney should handle any number of medication decisions, and well as the circumstances during which the designated person has such powers. Such decisions can include when and how to handle:
  • nutrition methods, including feeding tubes;
  • pain management, types of pain medication;
  • kidney dialysis;
  • whether or not to accept a transplanted organ;
  • management of medical life support systems;
  • whether or not to receive blood transfusions; and
  • numerous others.
The reference links below include cursory example healthcare power of attorney documents that may be worth perusing. It is possible to make a such document far more detailed and inclusive than the ones in the examples. Such documents, like estate documents, need to be drafted in contemplation of how to handle numerous potentially unexpected and unanticipated medical circumstances.

A Living Will, or Advance Healthcare Directive, is a second document which has some overlap with a Healthcare Power of Attorney. The primary function the power of attorney is to designate a person to make decisions on one's behalf. The intent and purpose of a healthcare living will is to describe in detail what actions shall be taken, and what actions may not be taken, under any of numerous circumstances that can occur when the creator of the Living Will is unable to make decisions. A Living Will is different and separate from a Will and from a Revocable Living Trust because a Will and Revocable Living Trust deal with finances and property, while a Living Will handles healthcare decisions when its creator is unable to make them otherwise.

Like all estate planning and similar legal documents, it is essential that each signature for each person who is a party to the document and who signs the document, either as a party or as a witness, is notarized individually. Some states have statutory requirements for Living Wills and Healthcare Powers of Attorney, which in some circumstances may even include filing the document with a court of law. Only a review by a competent attorney can help prevent problems from occurring at the very moment when such problems become nightmarish.


Identification - Driver's License, Birth Certificate, Passport, Social Security Card

Last in this list, but probably first in order of chronological concern for transsexual and intersex people, is procurement of appropriate identity documents. Transsexual and intersex people need to be proactive about making sure that as much of their identity documentation as possible is in order. This includes obtaining:  a driver's license, a birth certificate, a social security card and underlying documentation at the social security administration, a passport, high school and college transcripts, changing records maintained by credit reporting agencies, and so on, all to the appropriate name and sex designation.

A birth certificate with the proper name and sex designation can function like a master key that makes all the other identity document changes relatively easy procure. However, only two U.S. states, Illinois and Michigan, have actual statutes which provide for such changes. Most states have instituted administrative procedures for changing birth certificates, but often such administrative procedures have little if any actual force of law. In fact, justice Phil Hardberger, who wrote the Littleton v. Prange ruling in Texas, explicitly stated in his ruling that the modified birth certificate Christie Lee Littleton received from the state of Texas was purely "ministerial", and that it did not represent any legality with regard to her legal sex status or her ability to marry in Texas.

Throughout states other than Illinois and Michigan, the process required to change a birth certificates, and the results of the process varying remarkably. Since none of them are supported by statute, any of them could be declared void by a state court of law, as has occurred already in Ohio, Texas, Kansas, and Florida (2). In addition, many states, such as Alabama, Alaska, Connecticut, Florida, Mississippi, and West Virginia,  do not provide a "clean" new birth certificate, but instead provide a document that outs the transsexual person by placing information on the birth certificate indicating that the sex designation has been changed, leaving the transsexual or intersex person with a document that serves as the modern equivalent of a legal scarlet letter. On the documents provided by some states, such as Mississippi, the name change and sex designation change are mere footnotes in small print at the bottom of the document, while the holder's previous name and previous sex designation remain above in larger text. In addition, some states that will change birth certificates do not seal the previous birth certificate to prevent future access to it. Worse yet, there are states which refuse to provide changed birth certificates at all, such as Ohio, Idaho, and Tennessee.

It can take months if not years to complete the entire process of obtaining a complete set of modified identity documents with the appropriate name and sex designation information on them. Most often, the procurement of the essential ones, such as a birth certificate, require a notarized affidavit from the surgeon who performed the surgery. For example, the birth certificate change statute in Illinois is so draconian it requires that the surgery be performed by a U.S. surgeon and that the affidavit be executed and notarized in a U.S. state. The Canadian vaginoplasty surgeon Pierre Brassard, MD has gone to the trouble of becoming licensed to practice medicine in Michigan, so that he can create Michigan based affidavits for patients born in Illinois who have surgery performed by him in Montreal, Canada. Although transsexual and intersex people can usually choose where to live, none have chosen where they were born, and many people have been saddled with the terrible misfortune of having been born in a state that will not issue them a new birth certificate. Two good resources for information about changing birth certifcates and obtaining a legal name change, is the web site created by Andrea James, called tsroadmap.com, and the web site of Becky Allison, MD.

Even once most other documentation changes have been made, many transsexual people report nightmarish difficulties getting the credit reporting agencies, and companies that have issued credit cards, to make the appropriate changes in their records and reports. Even after making the changes, transsexual and intersex people have discovered that it is a good idea to double check that the agencies have actually performed the tasks as promised. This can be done by having a trusted friend pretext the agencies as a potential employer, to obtain identity information confirmations, to determine if the information has actually been changed. All too often, unchanged information is reported by the agencies to third parties even after they have assured the subject that the information has been changed. In other words, do not trust, and always verify. It only takes one discrepancy when a prospective employer performs a background check or pre-employment credit check, to raise questions that involve complex answers.


Non-Disclosure Agreements

Given all the foregoing, transsexual people also need to make careful decisions about when to disclose one's transsexual and/or intersex status, to whom, and under what conditions. There are numerous situations in which transsexual and intersex people may want to consider requiring people they interact with to sign a non-disclosure agreement (NDA) with them regarding their medical history, including information about their transsexual and/or intersex condition. A non-disclosure agreement requires the second party to the agreement to keep information designated in the agreement confidential. Such an agreement enables the holder to sue the person violating the agreement for: breach of contract, invasion of privacy, to obtain a restraining order and later permanent injunction against further or additional disclosure, and potentially other forms of legal recourse.


Political and Legislative Activism

Last, it seems like one of the things transsexual and intersex people who are interested in political activism may want to focus on, is lobbying state legislatures for the creation of statutes in U.S. states that:
  • provide explicit legal sex status for transsexual and intersex people after genital reconstruction surgery; 
  • explicitly describe the legal marriage rights of transsexual and intersex people before and after genital reconstruction surgery; 
  • provide for sealing of court name change petitions,  birth certificate proceedings and related government records that are changed because of a person's transsexual or intersex condition. 
If Texas had a statute that provided sealed name change petitions for transsexual and intersex people, Nikki Araguz may have been spared the public humiliation of having the contents of her 1996 name change petition distributed to the entire world via the internet, notwithstanding the invasions of privacy committed against her by Frank Mann III. Currently, not a single U.S. state has explicit or detailed statutes which describe the legal sex identity status of transsexual and intersex people, that define related marriage rights, or which have legal definitions of male and female in its statutes. Even in Michigan, its birth certificate change statute is really just a single phrase in a single line, of its statute regarding procurement of birth certificates and making modifications to them (8). Not until, transsexual and intersex people are given explicit legal recognition by state and federal governments, will there by any hope that legal assaults like the one being rapaciously inflicted on Nikki Araguz, or upon Christie Littleton, Michael Kantaras, and others before her, will come to an end.


Conclusions

Although many people who have written articles in web-logs, or comments on social networking sites, have wondered if Nikki Araguz could have avoided her current legal battle, the steps she would have needed to take, may have been untenable in her situation. Even if Thomas Araguz III had a Will, a Revocable Living Trust, a Healthcare Power of Attorney, and a Living Will, none of those legal documents would have prevented the core of Nikki's current probate court battle from being initiated by Healther Delgado and Simona Longoria, because the money in question is a rare form of financial benefit sometimes given to the families of firefighters and police, that is created by various guilds and union organizations. Unlike life insurance policies, retirement accounts, and so on, which include specific written beneficiary designations, the firefighter benefits that are central to Nikki Araguz's probate battle do not include any provision for such designations. In some U.S. states, such funds are enacted and endowed by state statute, and designate the beneficiaries in the statute, without any opportunity for the firefighter or police-person to name a beneficiary. Such benefits are a form of non-testamentary proceeds, which designate the legal spouse of the firefighter as their beneficiary, or the children of the firefighter when there is no spouse.

In this case, Heather Delgado, who represents Thomas Araguz's children in the lawsuit, and Simona Longoria, who now represents the estate of Thomas Araguz, want to claim that Nikki Araguz is not his legal spouse, and therefore any money that would go to Nikki Araguz from the fallen firefighter fund, should instead be given to the secondary/contingent beneficiary, his children. However, Thomas Araguz could have avoided another aspect of the battle that isn't much discussed, the disposition of Nikki and Thomas's personal property if he had executed a Will or a Will and Revocable Living Trust. In that regard, it appears that Nikki Araguz may have lost the battle over her shared personal property, because Simona Longoria has been appointed executor of Thomas Araguz's estate by Judge Randy Clapp, who presides over the Wharton County District Court, and Thomas Araguz III did not leave a Will. Thomas Araguz did designate Nikki Araguz the beneficiary of his life insurance / pension plan benefit, which is $60,000.00, and Nikki Araguz has already received those funds, minus attorney's fees. However, if Nikki Araguz loses the lawsuit, she loses: the $300,000 in firefighter spousal benefits; she won't get Texas statutory free college tuition; her marriage to Thomas Araguz will be ruled legally void by the court, as though it never existed; and the court would likely declare her legal male; all in accordance with the 1999 Littleton v. Prange decision.

The only way Nikki and Thomas Araguz had much chance of avoiding the legal battle she is now waging, would have been relocation to a U.S. state that recognizes heterosexual marriages where one of the partners to the marriage is transsexual or intersex and has undergone genital reconstruction surgery. To do that, they would likely have needed to leave behind the two young boys they both loved dearly, and devoted themselves to raising. Apparently, their personal priorities did not enable them to place their love for each other before their love for their children. They may have knowingly taken the legal risks associated with their residence in Texas because of their devotion to their boys, although it will forever be impossible to know what they thought or may have discussed, never expecting that Thomas Araguz would die fighting a fire, after his fifteen years experience fighting fires without a mishap.

At present, Nikki Araguz is faced with an extreme test of motivations, morals, principles, and priorities. For example, her attorneys could negotiate down to a final offer to Heather Delgado and Simona Longoria, offering to sign away Nikki's interest in the $300,000 in exchange for an out of court settlement that enables Nikki's marriage to remain intact. Such a settlement proposal would also test the motivations, morals, principles, and priorities of Heather Delgado and Simona Longoria. If Heather Delgado and Simona Longoria were to accept such a settlement, the court of public opinion might make the judgment that they were only in it for the money, rather than making a judgment that they were setting aside their spite toward Nikki Araguz by allowing the legal status of Nikki's marriage to Thomas to remain intact through the settlement. A settlement would allow Nikki Araguz to win the existence of her marriage, plus an opportunity for free tuition at any Texas public university, at a cost of $300,000 in literal blood money, and the settlement would also save the larger battle over legal rights for transsexual and intersex people for another day.

Such an approach upsets the sensibilities of many people in the transsexual and intersex populations, and the associated online communities, who believe the battle for transsexual and intersex legal rights should be waged with full legal force at every opportunity. However, such beliefs deny the realities of Texas courts and the history in U.S. courts in response to similar legal battles. When it comes to social crusades in the courts, place, time, jurisdiction, venue, and the composition of courts, has always been part of such legal battles. By comparison, surely the court battle in federal courts that started in California over universal marriage rights was carefully chosen by it litigants and legal supporters as to time and jurisdiction. The composition of the federal district and federal appeals courts in California is clearly favorable, while the U.S. Supreme Court has shifted toward being favorable as well, since the core issues are primarily constitutional, regarding equal protection and due process. While the lawsuit against Nikki Araguz is currently in its evidence gathering phase, and not likely to create new headlines for weeks or even months, its future will not only be a test of judge Randy Clapp's character and temperament, it will be a test of morals and motivations, principles and priorities, for Heather Delgado, Simona Longoria, and Nikki Araguz, alike.



references

(1) WPATH Standards of Care
http://www.wpath.org/Documents2/socv6.pdf

(2) U.S. States whose appellate courts have voided legal sex status and marriages of transsexual people:

Ohio - In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (Ohio Probate Ct. 1987)
Texas - Littleton v Prange, 9 SW3d 223 (1999)
Kansas - In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002)
Florida - Kantaras v. Kantaras, 884 So. 2d 155 - 2004

(3) U.S. State that recognition marriage regardless of legal sex status of that parties
http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States

(4) The Uniform Trust Code
http://www.law.upenn.edu/bll/archives/ulc/uta/2005final.htm

(5) Living Trust
http://en.wikipedia.org/wiki/Living_trust

(6) Some basic information about Wills and Trusts
http://www.livingtrustvswill.com/

(7) tsroadmap - information about changing birth certificates
http://www.tsroadmap.com/reality/birth-certificate.html


(8)  Michigan Compile laws 333.2891 (9) (a) - Changing Sex on Birth Certificate
http://legislature.mi.gov/doc.aspx?mcl-333-2891


(9) Some Health Care Legal Document Resources (neither verified nor endorsed)

cursory outline, example healthcare power of attorney
http://estate.findlaw.com/estate-planning/living-wills/hc_poa.html

cursory, outline, example living will
http://estate.findlaw.com/estate-planning/living-wills/le23_9_1.html

another cursory, outline, example healthcare power of attorney
http://www.idph.state.il.us/public/books/PwrOf.PDF

http://estate.findlaw.com/estate-planning/living-wills/

http://www.legalhelpmate.com/living-will-form-faq.aspx

http://www.legalhelpmate.com/

Monday, August 30, 2010

The Lawsuit Against Nikki Araguz Could Impact Many People in Texas

Among the many topics left out of nearly every mainstream newspaper and television report about the lawsuit against Nikki Araguz, are the number of people in Texas and across the U.S. who have had genital reconstruction surgery, and who could potentially be affected by an unfavorable appeals court ruling, if the Delgado v. Araguz lawsuit gets that far. While the number of such people may represent a small fraction of the U.S. population, the numeric totals may surprise many people who are not otherwise informed about the prevalence of people born with intersex and/or transsexual conditions. There are likely hundreds of such married couples living in Texas, some who have married in Texas and some who have married elsewhere, whose marriages exist in a state of legal uncertainly while they remain resident in Texas, because of the confused status of Texas marriage law.

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