the trial of Nikki Araguz

Nikki Araguz and an Androgen Insensitivity Syndrome Diagnosis

2010-09-09T05:00:00.000-07:00

Although many newspaper accounts have all but completely ignored the fact that Nikki Araguz was likely born with Androgen Insensitivity Syndrome (AIS), whether or not she was born with this genetic intersex condition could become an important, even essential, aspect of her defensive response to the probate lawsuit filed against her by Heather Delgado, her late husband's ex-wife, and Simona Longoria, her late husband's biological mother. Ample supporting and contextual evidence that Nikki Araguz was born with AIS has been presented in the media, with the possibility that historical medical records will follow later, along with DNA analysis to confirm what already seems apparent.

Some news articles have all but accused Nikki Araguz of faking or lying about her claim that she was born with Androgen Insensitivity Syndrome (AIS). Other news articles have simply ignored the topic, and instead contain language that goes out of its way to refer to Nikki Araguz in ways whose apparent intent is to negate and/or dismiss her femaleness, femininity, and womanhood. Such news articles employ specious characterizations such as "ex-man", "born a man", "born a boy", and so on, when such statements may in fact be medically and scientifically misleading, if not patently incorrect. Only during the interview Nikki Araguz gave the Houston PBS television station, was the topic of AIS considered in any detail, or given much legitimacy.

Unfortunately, few people seem to be aware of or understand what Androgen Insensitivity Syndrome is, or the profound implications the existence of such intersex conditions have on the very nature of mammalian sex/gender determination and boundaries. Current genetic science has revealed that sex/gender morphology involves far more than the simple matter of an ostensibly immutable XX or XY sex chromosome pair. Such inaccurate and misinformed notions form the flawed core of general public knowledge all the way from incompetent high school biology lesson plans to scientifically flawed appeals court rulings such as Littleton v. Prange, the appellate court ruling that may be central to the legal dispute against Nikki Araguz. What follows is an examination of Androgen Insensitivity Syndrome (AIS), why most people born with AIS are female for nearly all practical purposes, and how AIS may be important in the lawsuit against Nikki Araguz.

Briefly stated, Androgen Insensitivity Syndrome is a genetic condition in which the people born with it don't respond to testosterone or any other form of androgens. Many females with a 46XX sex chromosome configuration have this congenital condition, but may never notice it because the condition has little consequential impact on them. However, when a person with a 46XY chromosome configuration is born with this genetic immunity to the influence of testosterone and other androgens, the consequences can be profound, biologically and socially. In the most profound instances, such people are born with female genitalia and develop within female norms during puberty, with the exception that they cannot and do not menstruate because they do not possess a uterus or ovaries. They truly are women, females with a 46XY sex chromosome pair, although they are infertile. Until the mid-twentieth century, such women lived generally unremarkable female lives, with the exception that they could not bear children, although medical science did not understand why at the time. Only after twentieth century medical science began to develop sophisticated non-invasive diagnostic technologies, and the ability to analyze the human genome, did geneticists discover that these women have a 46XY sex chromosome pair. The medical literature documents that, historically, very few of these women were ever told of the precise cause for their inability to menstruate and procreate. It has only been a few decades since most such patients have become better informed about the true nature of their condition. In fact, DNA analysis only became sophisticated enough in the late 1980s, to enable genetic researchers to pinpoint the true genetic nature of AIS.

Before human genome analysis revealed the precise cause of AIS, the medical terms used to describe it were extremely unflattering, potentially misleading, downright insensitive, lacking in perspicuity, and are not worth repeating. Even recently however, television portrayals of AIS, have been strikingly insensitive, such as in the February 20, 2006 episode of the FOX television network series House, MD, in which the insensitive writers had the fictional protagonist Gregory House, MD, an insensitive character anyway, state with completely inconsiderate tactlessness and cruelty that, "the ultimate woman...is a man", in reference to his teenage supermodel patient who they discover was born with AIS, when in fact it is entirely misleading and unrepresentative to refer to women born with complete AIS as "men" or "male". Furthermore, the medical scenario presented in the television program is highly improbable if not entirely unrealistic, perpetuating the myth created decades ago that women with AIS get gonadal cancer, which physicians routinely employed to persuade such patients to have gonad removal surgery. The fictional story was inadequately researched by its writers and the show's producers. The episode also included a sub plot that revealed the patient's father had committed incest with his AIS daughter. Even the wikipedia.org article about this fiction House, MD episode repeats the deprecated, antiquated, and outmoded, use of the term male pseudohermaphroditism to refer to the general category of intersex conditions that involve people with some form of genetic configuration which includes a Y sex chromosome. The sort of fictional exploration of AIS presented by this television program all too often has significant influence upon the factual impressions the general public develops about such topics.

In a yet more recent fictional television episode, from an NBC television series called Mercy, which aired November 18, 2009, an even greater disservice was done to public education when that program incorrectly portrayed AIS as a condition in which the character involved, a beautiful teenage girl cheerleader hospitalized for a kidney infection, with an outwardly normal female appearance, but with ambiguous genitalia that included a vagina, but with an enlarged penis like clitoris the physicians predicted would become more male over time without surgical intervention. The episode was medically incorrect and misleading because people with AIS don't respond to testosterone. In fact Nikki Araguz exhibits a more classic representation of AIS, in which the opposite occurs. Her genitals could not develop because her body doesn't respond to testosterone. Consequently the rest of her body developed during puberty into an otherwise normal looking female human being by the age of eighteen, except for her undeveloped ambiguous genitalia. Consequently, it isn't likely that the undescended and usually nondescript gonads in a woman with AIS would descend completely to become a scrotum with testes, as the above episode of Mercy incorrectly implied. It is no wonder that the general public has developed hostile and antagonist attitudes toward people with intersex traits, after such television programs use negative social engineering techniques to instill bigotry in the minds of average people. One redeeming aspect of this episode of Mercy, was its portrayal of the AIS patient's ultimate medical treatment, which was to leave her alone, so that she could take her own time to consider the profound implications of her congenital condition, to determine for herself how she wanted to deal with it.

Before getting any more deeply into the practical and sociological consequences of Androgen Insensitivity Syndrome and other intersex conditions, a more detailed explanation of AIS seems in order. As stated previously, people born with AIS don't respond to androgens, such as: testosterone, dihydrotestosterone (DHT), and other related hormones. In 1989 the precise gene that provides this response, the androgen receptor gene (AR gene), was discovered as part of the broad scientific effort to map and understand the entire human genome. What may surprise the average person is that the ability to respond to androgens is carried on the X chromosome. In fact, a significant amount of the genetic information that supports so called male features exist on the X chromosome, not the Y chromosome. Women with AIS who are born with a 46XX sex chromosome pair, generally don't notice that they have the condition. In such women, the symptoms are often very minor, such as having only sparse pubic hair and sparse axial hair development. However, they are carriers who can pass on this genetic condition to their offspring who have a 46XY sex chromosome pair. When the androgen insensitivity is profound, and occurs in someone with a 46XY sex chromosome pair, the resulting offspring most often appear to be normal females at birth. Their genetic and hormonal condition usually isn't discovered until their late teens, after they have failed to develop a menstrual cycle. Other individuals with AIS may be born with what appear to be underdeveloped male genitalia, but whose genitalia fail to grow and develop during childhood, and who then feminize during puberty, often profoundly, because they have little or no response to androgens. Nikki Araguz appears to be a woman for whom AIS has exhibited this second set of physiological and morphological characteristics. By age nineteen, her outward appearance was that any other female her age, although she apparently possessed rudimentary and underdeveloped male seeming genitals. Specific medical details about the condition of her reproductive organs at the time in here life have not yet been publicly revealed.

androgen receptor gene on X sex chromosome (3)

Meanwhile, the genetic basis for Androgen Insensitivity Syndrome is now well understood. With each passing year, additional details about AIS have been discovered as new AIS patients present themselves to medical professionals, and their genomes have been studied in detail. The root cause of Androgen Insensitivity Syndrome was discovered in 1989, when geneticist Celeste J. Brown, Ph.D., and colleagues, discovered the androgen receptor gene (AR gene) and subsequently described it in various medical journals (2). The AR gene exists at the location Xq11-12 on the X sex chromosome. Its features are encoded on eight exons within the AR gene (see illustration above). Androgen insensitivity appears in various forms from profound to mild, based on whether defects occur in all, or sometimes just one or more, of the exons within the AR gene. The various types of AIS gene defects include: single location mutations involving substitution of the wrong amino acid or insertion of a genetic stop marker in the DNA sequence where the AR gene should be; insertion or deletion of nucleotides that cause a position shift of one or more genes within the X chromosome; complete or partial deletions of the AR gene; and mutations that involve various forms of gene splices within the X chromosome. More than 400 different AR gene mutations have been discovered thus far, and more are discovered as genomes of newly discovered AIS patients are analyzed (3). What these AR gene defects demonstrate, is that development of a fully functional male phenotype (physical body morphology) requires not just a functional Y chromosome but also a functional AR gene on the X chromosome, other X chromosome linked genetic features, and appropriate hormonal conditions during gestation. When the AR gene on the X chromosome is completely defective, called Complete Androgen Insensitivity Syndrome (cAIS), the person with the AR gene defect is born with a female phenotype (female physical body morphology), despite having a 46XY sex chromosome genotype. Complete Androgen Insensitivity Syndrome is just one of many examples which prove that physical sex/gender determination is far more involved than a mere matter of having an XX or XY sex chromosome pair, one of the faulty notions on which the Littleton v. Prange court ruling, and similar rulings in other jurisdictions, are based.

[a] Untreated adult woman with pAIS
and ambiguous genitalia

People born with what is characterized as complete Androgen Insensitivity Syndrome (cAIS), have one of various genetic defect types that affect the entire AR gene, rendering them profoundly incapable of processing androgens. The cells throughout their bodies simply do not contain working androgen receptors. For all practical purposes, these people are females, with female body types, except for the absence of functional ovaries and a uterus. They are invariably declared female at birth and are given female birth certificates. If they have a 46XY sex chromosome pair, that is usually only discovered during puberty, and only because of recent advances in medical diagnostic technology. It has only been possible for scientists to make such genetic determinations since the advent of DNA analysis. People born with less profound forms of AIS, called partial Androgen Insensitivity Syndrome (pAIS), usually have one or more working exons within the AR gene. Because there are multiple ways in which a gene can become defective, and because the various ways in which the defects are caused and may effect only some if not all of the exons, the correlation between specific AR gene defects and their morphological consequences in the people with them are still being cataloged by geneticists, although many have already been enumerated. The clinical photo [a] just above, illustrates an example of a woman born with pAIS, an overall female body type, and ambiguous genitalia.

[b] newborn with
ambiguous genitalia

It should be clarified that a direct correlation between defects in all eight exons within the AR gene and development of female genitalia does not appear to have been established. Nor has the reverse condition, where someone with a completely defective AR gene may have developed rudimentary male genitalia during gestation, despite having a complete inability to respond to androgens. However, most people with partial AIS and a 46XY sex chromosome pair appear to develop male genitalia at least to some degree, while most people with complete AIS seem to develop female genitalia in nearly all cases. In other words, it is possible that Nikki Araguz could have a completely inoperable AR gene, where none of the eight exons are functional, and yet she still developed some level of male genitalia during gestation. Such a combination seems likely to also account for her profound level of secondary female development during puberty, with regard to pelvic widening and breast development during puberty, lack of facial bone bossing, lack of body hair other than head hair, and so on. There is every possibility that by the time Nikki Araguz reached adulthood, her body looked similar to the example in the clinical photograph [a] above.

It should also be noted that the scientific, social, and political, dynamics that AIS and similar genetic conditions represent have been largely kept underground by the medical and scientific professions until recent decades. It has taken significant pressure from people born with intersex conditions, including AIS, to change the practices, behaviors, and apparent beliefs, of many medical professionals about how to manage intersex patients. A significant portion of the medical profession continues to be resistant to fully informing and involving many intersex patients in their own treatment. The medical profession also continues to under report the prevalence of intersex conditions, including AIS, while independent sources have developed prevalence statistics that may be as high as 1:5,000 (5). The history of the medical profession's treatment of intersex patients has been dominated by their lying to such patients, performing surgeries on them without any reasonable level of informed consent, treating them and studying them like lab rats, and making profound decisions about the lives of intersex infants, many of whom experience extreme indignation and humiliation when they discover the truth later in their lives. Throughout the 1960s, 1970s, and 1980s, there are hundreds of documented cases in which surgeons lied to their AIS patients, telling them that their gonads could become cancerous, in order to persuade them that they should be removed, with the physician's hope that doing so would help such patients confirm their female identities. The perpetuation of this mythology has become so prevalent that many recent generation physicians continue to believe it, without any reasonable statistics to support the incidence of such malignancies! These are cases of what may have seemed like good intentions many decades ago, but intentions many people now believe had gone extremely ethically and medically wrong. Such surgeries are the intersex equivalent of prophylactic mastectomy for women who have the BRCA1 breast cancer gene, although performed without informed consent or adequate evidence of actual risk.

If Nikki Araguz and her attorneys believe it helps their case to prove that she was born with AIS, they can have a medical specialist perform appropriate DNA analysis, including a detailed mapping of her X sex chromosomes(s) and specifically the AR gene within it or them. Such DNA analysis can irrefutably determine what mutations if any exist within Nikki's AR gene, and the likely physiological and morphological consequences associated with those genetic mutations. Such a diagnostic confirmation would clearly differentiate the nature of her case from the arguments made by justice Phil Hardberger in his Littleon v. Prange ruling. The attorneys representing Nikki Araguz would have a strong basis for claiming that Nikki's original birth certificate was a medical error, and that there is a reasonable medical basis for both the mistake and for changing it to provide a female classification on her birth certificate, notwithstanding California law regarding provision of a new, changed, birth certificate after genital reconstruction surgery.

Although genetic analysis can irrefutably determine whether or not Nikki Araguz was born with Androgen Insensitivity Syndrome, secondary evidence has already appeared in media reports that support her claim. As a first example, Nikki's mother, Sheri Bockelman, has reported that two of her five sisters were born with a genetic abnormality that causes uterus didelphys. According to Sheri Bockelman, her sisters who have uterus didelphys, were each born with a double uterus and only one kidney (6). This could be evidence of a correlation between the X chromosome gene defect that causes uterus didelphys, and the X chromosome gene defect that damages the X sex chromosome and causes Androgen Insensitivity Syndrome. If such a correlation exists, Sheri Bockelman may also be an AIS carrier and not know it, which would be further supporting evidence that could be confirmed with DNA analysis of Sheri Bockelman's sex chromosomes to determine if she is an AIS carrier.

Nikki Araguz - at age nineteen

A second example of evidence supporting Nikki Araguz's claim that she has AIS, is the video documentary made of Nikki Araguz when she was about age nineteen, during her college years. The video provides dramatic evidence that her body had already developed into an outwardly normal appearing female one by then, apparently without exogenous hormonal intervention. In support of the AIS diagnosis, Nikki Araguz's facial features then, and now, do not show any evidence of being affected by testosterone. When working androgen receptors in the facial bones are stimulated with testosterone, they produce the classic square male jaw, taller chin, forehead bossing, nasal cartilage growth, and other features associated with male faces, featured that are the product primarily of hormonal stimulation, rather than purely genetic encoding. Since androgen receptors in the cells throughout the bodies of people with AIS do not respond to androgens, they can never develop such male facial characteristics. Parenthetically, such hormonal responses are not dependent on the existence of a Y sex chromosome. In all humans with a normal AR gene, cells throughout the human body are capable of responding to both estrogens and androgens, which is what makes hormone therapy for transsexual people possible, causing masculinization in transsexual men and feminization in transsexual women.

Medical records should certainly provide a third source of evidence to support Nikki Araguz's claim of being born with AIS. Even if historical medical records from Nikki Araguz's childhood have long since been lost, it seems likely that the surgeon who performed genital reconstruction surgery on Nikki Araguz, Marci Bowers, MD, took photographs of Nikki's external genitalia before surgery, and documented the contents of Nikki's abdominal cavity in her surgical notes. In addition, if Nikki's congenital genitalia were indeed underdeveloped, she would likely have needed a full-thickness skin graft as part of the vaginoplasty surgery she received, which is usually taken from the location where a tummy tuck procedure would be performed, would have been documented by Dr. Bowers in her surgery notes, and Nikki Araguz would have the resulting horizontal scar across her lower abdomen left behind as proof. It seems likely that Dr. Bowers might be called upon to testify, about her direct observations during her surgery on Nikki Araguz, and as an expert witness about intersex conditions and surgery for them.

Nikki Araguz
when the lawsuit began

It seems predictable that both sides of the lawsuit against Nikki Araguz will seek to obtain DNA evidence to confirm whether or not Nikki has Androgen Insensitivity Syndrome and to determine the configuration of her sex chromosomes generally. There is a small chance that Nikki Araguz may have a sex chromosome configuration other than 46XY. It is even possible that she could have some form of sex chromosome mosaic, such as 47XXY. It would seem irresponsible for a competent Texas court of law to make a ruling based on Littleton v. Prange, without having DNA evidence about the sex chromosome configuration of both Thomas and Nikki Araguz before it. If the attorneys representing Nikki Araguz obtain DNA evidence that confirms her Androgen Insensitivity Syndrome diagnosis, observers should expect Nikki's attorneys to try to also obtain expert testimony from a geneticist like Celeste J. Brown, Ph.D, who is surely an expert in Androgen Insensitivity Syndrome, to testify about the condition, about its manifestation in Nikki Araguz, and about its implications with regard to a pragmatic sex designation for Nikki Araguz. Armed with appropriate evidence, the attorneys representing Nikki Araguz should be expected to argue that issuance of a second, female, California birth certificate to Nikki Araguz was correction of a genetically supported medical sex designation error at the time of her birth, rather than a modification as a consequence of the surgical gender reassignment of a transsexual woman. Such an argument would differentiate it from the conclusions reached in the Littleton v. Prange case, and possibly render Littleton v. Prange irrelevant to Nikki's case.

Only detailed DNA analysis can determine whether some or any of the eight exons within Nikki Araguz's AR gene are functional. However, both Nikki Araguz and her mother, Sheri Bockelman, have described the genitalia she had at birth as underdeveloped. Both of them have also reported that her genitalia failed to develop further, as male genitalia would during childhood and puberty, in response to endogenous, systemic androgens. In addition, Nikki Araguz's apparent inability to respond to androgens seems readily apparent in both historical and contemporaneous photographs and video of her. During the late 1970s and early 1980s, despite her persistence, Sheri Bockelman was unable to get the attention of medical professionals in Texas about her child's congenital condition.

Even if DNA tests confirm that Nikki Araguz was born with Androgen Insensitivity Syndrome, her attorneys seem likely to have an uphill legal battle, especially because of the judicial composition of Texas courts. Nikki Araguz's attorneys also seem likely to have an uphill battle because the fact pattern supporting Nikki's defense case includes facts which her adversaries seem likely to argue against as vulnerabilities pursuant to Littleton v. Prange. However, the attorneys representing Nikki Araguz could argue that her case should be distinguished from the Littleton v. Prange ruling if the diagnosis that she was born with AIS is confirmed. It also seems likely that the attorneys who represent Nikki Araguz will need to attack various aspects of Littleton v. Prange directly anyway, using scientific expert witness testimony and supporting medical evidence to make a case that the Littleton ruling should not and does not apply to Nikki, even if it might apply to other people. Surely, having a woman with a medical history of AIS before the courts in Texas presents cogent and convincing evidence that Littleton v. Prange is an unworkable and illogical ruling. If successful though, such an approach could also lead to a judicial ruling that might possibly make the result of the case inapplicable to the Texas transsexual population generally as well.

In addition, if the courts in Texas are asked by Nikki Araguz's attorneys to consider the 2009 statutory change to Texas marriage law (6) in order to make a determination about her case, even when considered in a most favorable light, that statutory change may be considered ambiguous by the court, and open to multiple interpretations. Given the language of the 2009 Texas marriage statute modification, it isn't clear how a diagnosis of AIS might help Nikki Araguz in any regard, since the statutory change regards court documentation of "change of sex" as valid identification for a marriage license, while an AIS diagnosis would provide the basis for an argument that Nikki Araguz was not "changing sex", but was instead being surgically assigned a sex from a state of congenital, genetic, and morphological sex/gender ambiguity. It doesn't seem likely that a court of law would accept such contradictory arguments. Despite this, attorney Darrell Steidley, who represents Nikki Araguz, has filed a Motion to Dismiss, on the basis that the 2009 marriage statute renders Nikki's marriage to Thomas Araguz legal and valid as of September 2, 2009, as an informal marriage. Given the foregoing, if DNA analysis confirms Nikki Araguz's Androgen Insensitivity Syndrome diagnosis, such a diagnosis adds complexities to her case that may enable she and her attorneys to succeed, but which could also make the related sociopolitical crusade desired by some segments of the transsexual and intersex populations less then relevant to it.

references

(1) Dihydrotestosterone
http://en.wikipedia.org/wiki/Dihydrotestosterone

(2) Brown CJ, Goss SJ, Lubahn DB, et al, 1989 Androgen receptor locus on the human X chromosome: regional localization to Xq11-12 and description of a DNA polymorphism. Am J Hum Genet 44: 264-269.

(3) Androgen insensitivity syndrome: clinical features and molecular defects; Angeliki Galani, Sophia Kitsiou-Tzeli, Christalena Sofokleous, Emmanuel Kanavakis, Ariadni Kalpini-Mavrou

http://hormones.gr/preview.php?c_id=227

An additional article about Androgen Insensitivity Syndrome but with extremely low prevalence statistics:

http://www.naspag.org/articles/JPediatrAdolescGynecolv21p305-310.pdf

(4) An extended survey of numerous intersex conditions involving people with a 46XY sex chromosome pair

http://www.endotext.org/pediatrics/pediatrics11/pediatricsframe11.htm

(5) ... data suggest an androgen insensitivity syndrome incidence of approximately 1 case per 20,400. This statistic is based on analysis of a Danish patient registry that included only hospitalized cases; thus, the true incidence of androgen insensitivity syndrome may be higher.

http://emedicine.medscape.com/article/924996-overview

(6) Texas Family Law Code: Title 1, Subtitle A, Chapter 2, Subchapter A, Section 2.005, Paragraph (b)(8)

Texas Family Law Code: Title 1, Subtitle A, Chapter 2, Subchapter A, Section 2.005, Paragraph (b)(8)

Honoring Thomas Araguz III, his labor, and his wife Nikki Araguz

2010-09-05T00:01:00.000-07:00

editorial commentary

The assistant managing editor at the Fort Bend Herald newspaper, in Rosenberg, TX, John Merculief, has published an editorial that purports to be concerned about honoring the memory of Thomas Araguz III, who he describes as the person at the center of the lawsuit against Nikki Araguz. However, John Merculief appears to be just another foot soldier in the Texas yellow journalism brigade, a latrine brigade that doesn't seem to know when to stop shoveling shinola at the sensibilities of its primarily Texan readers. Merculief's editorial, which is replete with the same heaping dish of diatribe the Texas media has employed in myriad ways since a couple weeks after Thomas Araguz's death, dishonors Thomas and disrespects the memory of the work he did. Merculief's editorial also represents yet another continuation of the media's verbal assault against Nikki Araguz, the woman Thomas Araguz loved, chose to love, chose to live with, and married.

John Merculief

John Merculief's article fails to recognize that the people who have dishonored and disrespected Thomas Araguz III most are Heather Delgado, the ex-wife he divorced, and his own mother, Simona Longoria. Their greedy fool's errand lawsuit won't actually net Thomas's sons Trevor and Tyler any more money than if those two women had never filed their lawsuit, because any gain they may reap from it for the boys, will surely be taken right back by the attorneys who represent them, to pay attorney's fees and expenses. What Heather Delgado and Simonia Longoria's lawsuit does however, is wage an all out assault on Thomas Araguz's all important desire and choice to love Nikki Araguz, to live with Nikki Araguz, to marry Nikki Araguz, to share a house and home with Nikki Araguz, to share child rearing duties with Nikki Araguz, to share his hobbies and interests with Nikki Araguz and the boys they cared for throughout the three short years of their lives together, before his life and their life together was prematurely ripped away from them by Thomas's unexpected death. Heather Delgado and Simona Longoria's lawsuit also disrespects Thomas Araguz and his sons Trevor and Tyler, by subjecting Trevor and Tyler, to forever live with the memory of how they, and the Texas media, have disrespected his love for Nikki Araguz, and by extension the boys as well. If Heather Delgado and Simonia Longoria truly had respect for and honored Thomas Araguz, and for his two sons, it seems like the public should wonder why they didn't leave well enough alone, so that the memory of Thomas Araguz III, life long public servant and fallen firefighter, would live on in perpetuity, unfettered by what has actually occurred since his death.

Without Heather Delgado and Simonia Longoria's lawsuit, Thomas Araguz's two boys would have the same $300,000 that was coming to them anyway, without the need for a court of law to issue an order allowing distribution of it to them, and without having to take attorney's fees out of it beforehand. By Texas statute, Thomas's two boys will also be able to attend the Texas public university of their choice tuition free, something never at issue in the lawsuit Heather Delgado and Simonia Longoria have instigated. It is entirely specious, if not downright fallacious, for John Merculief to state in his editorial that:

(Heather Delgado and Simonia Longoria have) filed suit to have his marriage voided and ensure his children get his death benefits.

http://www.fbherald.com/opinion/article_2754c970-b7b1-11df-a848-001cc4c03286.html

when in fact, his children were ensured of receiving his death benefits anyway, which their lawsuit only delayed and diluted with attorney's fees, while it also creates an unwarranted cloud of vitriol over the life of the woman Thomas Araguz loved and married, Nikki Araguz.

The editorial John Merculief has published also begins with mention of Chad Ellis, one of three attorneys whose legal representation of Simonia Longoria, is little more than a greedy $300,000 money grab for themselves, unless it is also bigoted vindictiveness toward Nikki Araguz with whom Heather Delgado and Simonia Longoria had previously been familial. Surely, the three less than honorable attorneys, Edward Burwell, Frank E. Mann III, and Chad Ellis, knew full well when they convinced Heather Delgado and Simonia Longoria to file their probate lawsuit against Nikki Araguz, that nothing would be gained financially by those two women, or the boys who cannot represent themselves as the actual parties to the lawsuit because they are minors, except the lining of three attorneys' pockets with half the proceeds. No matter what the outcome, all that Chad Ellis, Edward Burwell, and Frank Mann, will have accomplished is the pointless judicial institutionalization of their dishonor and lack of respect for Thomas Araguz, for Nikki Araguz the woman he lived, and for their two boys Trevor and Tyler. It seems noteworthy that both Edward Burwell and Frank Mann have been sanctioned previously by the Texas State Bar Association for breach of ethics rules. Frank Mann's license to practice law has even been suspended on two occasions, for years at a time, and he is currently under investigation again for his unethical and potentially illegal activities.

Meanwhile, John Merculief's editorial references Chad Ellis's use of the nickname "Tommy" which also disrespects Thomas Araguz, because that was a nickname he disliked and told people to never use. The people who knew, loved, honored, and respected, Thomas Araguz, know that he preferred to be called Thomas. Although Merculief's editorial goes on to quote Chad Ellis who claims that:

"We chose to do this, after visiting with the family, because Tommy's not here to lend a voice to the story," (Chad Ellis) said. "The family has come forward to tell the things they know should be said."

The facts are that Thomas Araguz spoke loudly through his actions during his life, and before his death, about his intentions and about what he honored. Thomas Araguz loved, married, and honored Nikki Araguz, even if by some chance the Texas state judiciary ends up refusing to recognize and honor his wish and intentions at some future juncture. Thomas Araguz also divorced Heather Delgado, communicating to the world his rejection and repudiation of her. The undisputed fact is that Thomas Araguz also named Nikki Araguz the beneficiary of his life insurance / pension plan policy proceeds. Yet Merculief's editorial fails to mention that judge Randy Clapp, who presides over the probate case at the Wharton County District Court, has released that $60,000.00 benefit to Nikki Araguz, in recognition of Thomas Araguz's wishes. These are all indications that Thomas Araguz would be horrified by the ways in which he and his wife Nikki are being dishonored by Heather Delgado, and by his very own mother Simona Longoria, who together with Heather Delgado and Thomas's sister Raquel Araguz have publicly expressed their vindictive vitriol toward Nikki Araguz, all of which disrespects and dishonors the choices Thomas Araguz made during his lifetime. One person who has remained publicly absent and silent since Thomas Araguz's death is his brother Phillip Araguz, a gay man whose silence may indicate his disapproval of his mother's actions. The voices that Simona Longoria and Heather Delgado have lent to the story that is Thomas Araguz's epitaph, have been characterized primarily by dishonorable and defamatory epithets hurled by them at Nikki Araguz.

Thomas and Nikki Araguz

Thomas Araguz was an honorable man, who from the time he reached the age of majority, chose to devote his life to protecting the community where he was born and raised. For over ten of his short thirty years, Thomas Araguz had trained and served as a firefighter in Wharton, TX, reaching the rank of Captain, where the firefighters serve their community without salary, but with the promise from the community and the state of Texas that their efforts would be recognized and honored in other ways, including retirement benefits. After Thomas Araguz met Nikki Purdue at church, fell in love with her, lived with her, and married her, it was Nikki Araguz whose loving income enabled Thomas to honorably attend Wharton Community College to study for his associate's degree and Firefighter's certificate, with the hope that he might get a paying job as a firefighter and emergency medical technician in a city large enough to provide a salary. It was Nikki Araguz who honored her husband by using her income to be certain Thomas's child support payments were paid to the ex-wife Thomas divorced. It was Nikki Araguz who honored her husband Thomas Araguz, as stepmother to their two boys, together devoting their four days a week with them, to ensure their well being, education, and quality of life. It was Nikki Araguz who honored her husband, and was honored with an award from the Wharton Fire Department just months before Thomas's death, for her tireless fund raising efforts on behalf of his work. Thomas Araguz was an honorable man who deserves to have the love he shared with Nikki Araguz through marriage; honored, respected, and kept legally intact.

Heather Delgado and Simonia Longoria could honor the memory of Thomas Araguz most, by dismissing their foolhardy and pointlessly greedy lawsuit against Nikki Araguz. To do so would honor the love Thomas Araguz shared with, and gave to, Nikki Araguz. Dismissing the lawsuit would honor and respect Thomas's two sons, his sons' privacy, his sons' dignity, and their ability to honorably remember the father who clearly loved them deeply as well. If the three attorneys who represent Heather Delgado and Simona Longoria were truly interested in honoring and respecting Thomas Araguz, surely they would change their minds and persuade their clients to rethink what they have done, and the harm their shameful lawsuit has heaped on the memory and honor of Thomas Araguz, on Nikki Araguz, on Trevor Araguz, and on Tyler Araguz. That would be a fitting gesture for a Labor Day weekend that ought to honor the way Thomas Araguz labored hard, without monetary remuneration, with such devotion to his community of Wharton, TX that he gave his life doing so.

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

2010-09-04T00:01:00.000-07:00

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/

The Lawsuit Against Nikki Araguz Could Impact Many People in Texas

2010-08-30T16:00:00.000-07:00

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

Frank Mann - An Ethically Challenged Bigot

2010-08-21T00:01:00.000-07:00

Editorial Commentary

Unscrupulous attorneys have long been the tantalizing subject of fictional stories about lawyers who would do anything they think they can get away with, to get ahead and generate fees for themselves at any cost, including a proverbial pound of flesh. When real life exposes one of these sorts of cretins, the insidiousness of their evil takes on both personal and socially repugnant dimensions. Such miscreants also expose incompetent if not corrupt governmental institutions around them. One such example is Frank E. Mann III, whose unethical background has already been the subject of an article on this site. That the Texas State Bar Association allows him to continue practicing law, implies that the Bar Association in Texas is either as incompetent or as corrupt an institution, and one that has failed to fulfill its duty to the people of Texas it is supposed to serve, as Frank Mann appears to be.

Cristan Williams

The inspiration for this missive about Mr. Frank Mann, is a telephone call he made to Cristan Williams, the beautiful, articulate, and highly representative, executive director of the Houston Transgender Center. Cristan Williams has been the force behind the facebook.com support page setup for Nikki Araguz. She has also been creating online videos containing her commentary about the ongoing proceedings, and she has appeared on television to discuss the issue of marriage legality for transsexual and intersex people. Since Texas law allows any party to a telephone conversation to record it, Cristan Williams recorded their conversation when Frank Mann telephoned her. She has also published the recording, with commentary, in a video on youtube.com. Frank Mann's ostensible purpose for telephoning Ms. Williams was to extend an Olive Branch (his own words). Such a telephone call surely implies that he has become aware that newspapers, television media, and the blogosphere, have all been exposing the negative truth about who he is, about his ongoing unethical activities, and the rest of his apparently incorrigible behavior. Based on the contents of his telephone call with Cristan Williams, Mr. Mann has the naive notion that smooth and friendly sounding talk might overcome the reprehensible nature of his actions and his associations. Frank Mann's actions have made it clear that he is a bigot, that he has neither ethics nor conscience, that he is part of the lawsuit against Nikki Araguz primarily in the interest of his own personal greed, and that he has the grandiose notion that his cruel and malicious lawsuit against Nikki Araguz will be the case of his career.

Frank E. Mann III

A brief review of Frank Mann's history might help provide some context for making judgments about his character. Frank Mann has twice been investigated by and sanctioned by the Texas State Bar Association. In both cases his license to practice law was suspended, once for a period of years, and further extended by periods of probation once the Bar Association allowed him to practice again. Nikki Araguz made the unfortunate and fateful mistake in 2002 of hiring Mr. Mann to represent her in a Chapter 7 bankruptcy. During his representation of Nikki Araguz, she disclosed confidential information to him about her medical past and apparently even gave him a copy of her first birth certificate, all under attorney/client privilege. Heather Delgado, the ex-wife of Nikki's second husband Thomas, happened upon Frank Mann when she needed an attorney to represent her in a child custody dispute against Nikki and Thomas Araguz. It was both illegal and unethical for Frank Mann to represent Heather Delgado, or anyone else as an adversary to Nikki Araguz in a legal matter, but Frank Mann did so anyway. This is called a direct conflict of interest. In most states, Frank Mann would have been disbarred for doing so, but apparently not in Texas. Frank Mann used his knowledge of confidential information about Nikki Araguz to take advantage of and humiliate Nikki and Thomas Araguz during that dispute and depositions they gave during it. While Frank Mann was representing Heather Delgado against Nikki and Thomas Araguz in the child custody dispute, Nikki Araguz decided to run for mayor of Wharton, Texas. Frank Mann then sent a broadcast email to a large group of his friends and colleagues that contains information which violates the attorney/client privilege he owes Nikki Araguz. Mr. Mann's bigoted email poked fun at Nikki Araguz, exposed her medical past, and disclosed the possibility that she may not have been eligible to run for office because of a previous criminal conviction. Once again, in just about any state other than Texas, Frank Mann would have been disbarred for a stunt like that.

Long after Nikki Araguz should have known that Frank Mann had no business being involved in a lawsuit against her, the attorneys representing her filed a complaint with the Texas State Bar Association about Mr. Mann's behavior. At first the Texas State Bar Association dismissed the complaint. Only after Frank Mann, Nikki Araguz, Heeather Delgado, Simona Longoria, et al, became national news, did the Texas State Bar Assocation decide to take a closer look at the complaint against him. Frank Mann is currently under investigation by the Texas State Bar Association with regard to the numerous ethical violations listed above. However, Frank Mann continues to represent a party adverse to Nikki Araguz, in clear violation of ethical rules. In fact, the telephone call Frank Mann made to Cristan Wiliams is right at the edge of another ethical violation. An attorney is not allowed to engage in ex-parte (without the adverse attorney present) communication with an adverse party to a case. Although Cristan Williams isn't the actual adverse party, there are clear implications that Frank Mann intended to communicate his propaganda indirectly to Nikki Araguz through Cristan Williams. If not a direct ethical violation, Frank Mann's telephone call to Cristan Williams certainly seems to violate the spirit of the ethical rules he swore to uphold upon becoming an attorney.

With the foregoing review of Frank Mann's behavior as context, the contents of Frank Mann's conversation with Cristan Williams demonstrates just how much of an unprincipled hypocrite he is. There isn't any way to separate Mr. Mann's representation of someone in a case that disrespects the memory of the father of the boys he represents, from the implications such representation has about Frank Mann's own lack of character. Every time Frank Mann files a motion that mischaracterizes the marriage between Thomas Araguz and Nikki Araguz as same-sex, he isn't just taking an easy pot shot at Nikki Araguz, his actions dishonor Thomas Araguz and his sons as well. There isn't any way for Frank Mann to separate his greed from his involvement in the case either, since he and the other attorneys had an ethical duty to point out to Heather Delgado and Simona Longoria, that Thomas Araguz's boys would end up with about the same amount of money with or without the lawsuit, and by refraining to litigate such a matter, they would protect the memory of the boy's father and socially shield the boys from the bigoted Texas culture that surrounds them.

There isn't any way Mr. Mann can claim he is not a bigot when the core of his case requires him to argue before a court of law that somehow intersex and transsexual people should not be afforded constitutional equal protection and due process in their right to marry someone of the opposite genital sex, even if they may have some theoretical genetic similarity of sex chromosomes with their marrying partner. Such an imposition of law defies practicality and pragmatic common sense. It is a notion so preposterous that Texas has only now begun to understand that in so doing, it has actually legalized the very thing it purported to outlaw with the Littleton v. Prange ruling. What Littleton has legalized in Texas, is hundreds of transsexual and intersex people who have married partners of the same genital sex because the law there is based on the theoretical and presumed sex chromosomes of the marrying couple, without ever even testing them for verification. The resulting bureaucratic confusion at county offices which provide marriage licenses in Texas that has followed from such blind bigotry, threatens to deny the rights of intersex and transsexual people not just in Texas, but potentially throughout the United States. By serving as a plaintiff's attorney in a rapacious lawsuit whose purpose is to confirm such bigotry, Frank Mann demonstrates to the world by his actions, no matter what words he may use to provide an excuse for them, that he is a bigot. Mr. Mann's ego may be bolstered now by his involvement with such a case, but in a more enlightened future reading of the history he may be creating, he will be properly labeled as one of the bigots who made such institutionalized bigotry possible.

If Frank Mann were actually an honest, conscientious, or ethical person, he and the other attorneys representing Heather Delgado and Simona Longoria in the supposed interest of Trevor and Tyler Araguz, would never have filed such a lawsuit to begin with. It seems equally important to remember that without Frank Mann's violation of attorney/client privilege, Heather Delgado et al, may never have discovered the information about Nikki Araguz's medical history that fanned the flames of the child custody case and instigated the present probate case. Frank Mann is one of three attorneys who knew full well that when it comes to most probate lawsuits, the only people who generally win are the attorneys. While their unscrupulous gains are purely financial, they will leave scorched earth behind them, and a broken family in their wakes. While Frank Mann got fake friendly on the telephone with Cristan Williams, explaining that Thomas Araguz's sons Trevor and Tyler would be attending private school in the hope that may help protect them from playground bullying, such efforts are naive recompense, a vain effort to bandage the gaping emotional wounds those two boys will likely battle for many years to come. In the same conversation, Frank Mann also noted that his potential involvement with Cristan Williams might last for years, without any acknowledgement of the benefits to the children that a settlement now might provide: for them, for Nikki Araguz, and potentially for thousands of intersex and transsexual people who could be directly impacted by a negative appeals court ruling in such a case. Shame on all three attorneys: Frank Mann, Edward Burwell, and Chad Ellis; for such blatant hypocrisy and greed. The pound of flesh they hope to excise from Nikki Araguz does not come without a drop of blood, but with copious quantities of it; from Thomas Araguz, from his sons Trevor and Tyler, from Nikki Araguz his chosen wife, and potentially from thousands of intersex and transsexual people everywhere, no matter how their chromosomes may be configured.

Nikki Araguz - A Biographical Assessment

2010-08-19T21:07:00.000-07:00

While most of the mainstream media seems almost blindly focused, with near tunnel vision, on their excoriation of Nikki Araguz, on occasion, brief glimpses of the woman behind the news stories has slipped through the din of their diatribe. When assembling a portrait of any person, the traditional attributes people gather about another person usually include: professional interests, hobbies and avocations, socioeconomic background, education, beliefs and values, all deduced from a person's relationships, work, recreation, and residence, as a person structures their life. Without an opportunity to interview Nikki Araguz directly, it has been possible to ensemble the following cursory assay of Nikki Araguz and her life, based on sifting through the media disinformation, in search of aspects of her life that appear credible and which provide a better reasonably balanced purview of the woman she is. Hopefully, some future opportunity will lend itself to a more in depth and personal portrait, based on information directly from the subject.

Nikki left, with her father, mother, sister and brother.

Nikki was born in June of 1975 to her mother Sheri, when Sheri and her husband were in Carmel, California, while he was stationed there during military service. Sheri and her husband were originally from Texas, so Sheri returned to Texas after her husband was ordered to a post in Germany, shortly after Nikki was born. A year later, Sheri's husband returned home to Bryan, TX, but was hit and killed by a semi-truck a month later, long before Nikki had any opportunity to get to know her biological father. A few years later, Sheri married Chuck Bockelman, Nikki's stepfather, to whom Sheri remains married today. Since the recent probate lawsuit was filed against Nikki, her entire family has made positive and supportive public statements about her, including her mother Sheri, her stepfather Chuck, her older brother Gary, and her younger sister Vanessa. Sheri's mother is active on the facebook.com page setup to support Nikki, where she has stated she would attend the hearings about Nikki's case if she were healthy enough to be able. The photo above, apparently taken some years ago, provides clear evidence of her family's support of her, with her stepfather Chuck hugging her, while all five of them were gathered for a family snapshot.

Nikki at 19 in video documentary

Meanwhile, as Nikki grew up, her teenage years were apparently a time of experimentation and exuberance for her. She doesn't appear to have had the benefits of affluence that often expose people to resources that provide information on topics that might not otherwise be readily available. As a result, Nikki apparently had a hard time getting detailed information about the congenital intersex condition she was born with, or doing much about it during her early life, despite her mother's attempts to get the attention of physicians about it. She seems to have struggled while trying to find her social place because of it, and more than once succumbed to manipulation by people whose primary purpose was to take advantage of her natural need for attention and positive social feedback. At one point when she was in her late teens, she attended a college or junior college near her in Texas, but none of the news reports have included much information about majors, graduation, or degrees she may have earned. Only one news report states that she has some form of degree in marketing. In a video documentary made of her when she was in college, she appears happy as well as reflective, but a little flighty, as one would expect of any young woman her age. She was in fact quite beautiful at nineteen or twenty, and an obviously sexually attractive young woman, apparently without medical or hormonal intervention. The college video documentary provides demonstrable evidence of her intersex condition, although it also demonstrates her lack of medical understanding about it at the time. What many uninitiated people clearly don't understand, is that by the time Nikki had reached the age of eighteen, her body had developed to become a normal looking female one from all outward appearances, along with her contradictory but unseen underdeveloped genitalia. The genetic condition she has prevents her body from responding to any testosterone her body may produce, which caused her body to respond only to the estrogen that is naturally in everyone's system.

From all appearances, much of Nikki's twenties after college were occupied with low level jobs such as working in retail. In her early twenties, Nikki worked at a shoe store in a local Texas shopping mall. That is where she met her first husband Emilio Mata, who she married when she was about twenty-four or twenty-five. Without socioeconomic privilege to provide financial and intellectual stability, news reports imply that neither Nikki nor Emilio had very good judgment during that period of her life. Both she and Emilio Mata racked up minor convictions for petty criminal acts such as driving while drunk, minor drug possession, and petty theft, all the sorts of youthful indiscretions that people with financial privilege often manage to avoid getting on their permanent records, even if they have committed them. By 2002, she and Emilio Mata were also in financial trouble and decided to file Chapter 7 bankruptcy. If only they could have known the terrible fate that would befall them for unknowingly choosing an unscrupulous attorney named Frank E. Mann III, whose violation of her attorney/client privilege eight years later would be one of the falling dominoes that have knocked Nikki Araguz into the middle of an arduous legal ordeal. The financial and social instability surrounding Nikki and Emilio seems to have eventually become too much for their relationship to survive, and they divorced in 2007, about the same time Nikki met Thomas Araguz. Emilio Mata eventually worked his way up in the technology business and now works for a digital chip foundry in Houston.

Nikki and Thomas Araguz wedding

At about the same time Nikki divorced Emilio Mata, she began attending Grace Community Fellowship church in Needville, TX, another deep Houston suburb. One Sunday she was approached by Thomas Araguz, who she had seen at church and said hello to previously, but during their first significant encounter, he asked her to have brunch with him after the service. Their Mexican restaurant brunch turned into a classic, love at first sight, three hour, marathon event. Within weeks they had decided to move in together. Nikki seems to have gained significant emotional support from Thomas Araguz after the two of them met at their church, and immediately struck up a soulful and collaborative relationship. Early during their relationship, Nikki apparently disclosed her medical condition to Thomas Araguz as well. In addition, there are indications that Nikki had been saving money during that time to get corrective genital surgery. Thomas seems to have also attended medical meetings with Nikki to get information about the corrective surgery she needed. One day in June, 2008, Thomas took Nikki on a private, afternoon, Gulf of Mexico boat cruise, where he proposed marriage to her. A year after they had met, the two of them somehow managed to put together a wedding, with excellent photos that document the ceremony, to which she wore a beautiful white strapless gown. Two months later, Nikki had also finished making payments for the $20,000 genital reconstruction surgery she needed, with a well known and respected surgeon in Trinidad, Colorado, Marci Bowers, MD. It's a surgery that must be scheduled and paid for in cash, many months in advance. Since Thomas had to stay home on call for firefighting duty, the two of them exchanged affectionate email messages and phone calls while she spent a week recuperating in the hospital, from the surgery she needed to have a vagina constructed. Thomas was a man patient enough to wait months before he could consummate his marriage.

During the past two years, since her wedding and her surgery, Nikki Araguz appears to have been focused primarily on building a home life with her husband Thomas Araguz. They were finally able to rent a little house, on a couple of acres, in the outskirts of Wharton, which is a small town that looks like it was cleaved from a section of the fictional town Mayberry, where the district courthouse marks the center of town, and the mostly single story business buildings that surround it for a few blocks in each direction don't appear to have changed much since the 1950s. While some of the houses around are tear-down/rebuild two story homes of a more recent vintage, most of the houses are tiny single story ramblers, many of them no bigger than apartments. They are set back on large lots among huge deciduous trees that shade the lawns and houses from the oppressive summer heat, along residential streets without sidewalks. Nikki spent the time when she wasn't working, taking care of her husband Tom's two young boys four days a week, helping the boys with their homework, helping the boys with their toy trucks, and making a home of the house they rented together.

Nikki's relationship with Thomas Araguz and his sons in such a quaint looking place as Wharton, appears to have stabilized and grounded her. Meanwhile, she had leveraged her knowledge of the magazine business, which she had developed while working for various local Texas magazines, including a GLBT magazine called Outsmart where she sold advertising, into a magazine business of her own. She was the creator and publisher of a local magazine called Wharton County Living, the sort of free circulation piece that is often found in shops around most communities these days, that generate their revenue entirely from selling advertising space rather than from subscription fees. When Thomas was out of work, it was Nikki who pitched in the money for the child support payments to Heather Delgado, Thomas's bitter ex-wife. Nikki has also described her marriage as one with a normal amount of emotional intensity and disagreement, the natural product of constant, daily, deep, emotional involvement with, and commitment to, another person. During her recreational time she apparently had a horse that she enjoyed riding and caring for, something also quite typical for small town exurban life in Texas. In an interview with the Houston PBS television station, she described herself in the following manner:

"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."

Her weekends appear to have been consumed primarily with going to church with her husband and their two boys. When she wasn't busy with the boys, she seemed to have spent her time helping her husband study for exams while he was trying to get through Wharton County Junior College, to earn an associate's degree in firefighting and emergency medical technology, all on a very modest income. In the meantime, Nikki ran for Mayor of Wharton, a town so small that her loss to the incumbent mayor was by a vote of 382 to 118.

Then sometime in the spring of 2010, Heather Delgado, Thomas's disgruntled ex-wife, became discontent with her level of access to the sons she shared with Thomas Araguz, so she filed a child custody lawsuit against them. Delgado somehow happened upon the unscrupulous attorney Frank Mann III, who seized at the opportunity to gain the advantage by outing Nikki's medical past to Delgado. Once he did that, Nikki and Thomas's lives suddenly became emotionally stressful beyond their limits, and apparently their judgment in some instances.

Thomas Araguz funeral procession

The day her husband died, Nikki had left Wharton, and was reportedly driving west toward California. Some speculate she was driving to California to see if she could get expedited service on obtaining a female California birth certificate. Meanwhile, Thomas was called out to fight a huge fire at an egg farm and processing plant. While Nikki drove west, Thomas and the other firefighters fought their way into a blaze so huge that as many as one hundred and fifty firefighters, from hundreds of miles around, were brought in to fight it. Thomas went missing somewhere inside the structure, with only minutes of air left in his oxygen tank. His charred body wasn't found until the next day, July 4, 2010. Nobody in Thomas's family even thought of calling Nikki to give her the terrible news. It was the wife of another firefighter who called Nikki on her cell phone, as she was driving west through New Mexico, who gave Nikki the news that would spark the flames of a different sort of blaze, one that continues to consume Nikki'e life. At first Nikki and her step sons were nearly sainted by the news reports, along with Thomas, the fallen hero. But the classic heaping of sympathy for the family of a fallen public servant, turned almost instantly into a public pummeling of Nikki, while Thomas and his memory faded instantly, once the attorneys for Heather Delgado and Simona Longoria filed their lawsuit and held a press conference, having already obtained the attention of the press because of the fire and Thomas's death. Newspapers and television stations all over Texas, and then all over the U.S., began to run stories that changed from near beatification to vilification of Nikki, mischaracterizing her as a liar, a fraud, a criminal, and a gold digger.

Meanwhile, somewhere in the midst of the heated child custody dispute that preceded her husband's death, their occupancy of the house they were renting together appears to have been lost, as a whirlwind of events culminated with Nikki being left without a husband, with the children she had taken care of for nearly three years stripped from her life and possibly forever, without a home, without a business and its income, and with a contentious lawsuit filed against her, based not on what she had done, but because some people would rather not allow her to have female legitimacy. While Nikki has been receiving intensive support from transsexual activists around Texas, the Houston Press wrote the following:

Nikki also told Fox News that, because she was actually born female, she never identified as transgender. And despite the fact that many in the Houston transgender community are offering Nikki financial and emotional support, and despite the fact that prominent transgender attorney Phyllis Randolph Frye believes the suit against Nikki threatens every transgender person's civil rights and has taken on Nikki's case pro bono, Nikki told Fox that she should not be "lumped in" with the transgender community.

http://www.houstonpress.com/content/printVersion/1935902/

Similarly, Nikki told Ernie Manouse of the Houston PBS station in an interview with him:

Nikki Araguz - 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.

Ernie Manouse - 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?

Nikki Araguz - 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.

[...]

Ernie Manouse - 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.

Nikki Araguz - 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.

Nikki's public posture in this regard may turn out to be an all important component of her legal argument that her marriage to Thomas Araguz should be considered valid under Texas law. Her statements in the PBS interview were better organized than her statements in earlier television interviews, including the following one, in which she appeared quite flustered when a television news reporter tried to pressure into describing herself as male, to which she responded with the following statement:

"I do not and have not ever considered myself in that way (male), but I understand that some people are explaining it like that. And what I'd like to say is that essentially I had a disorder much like anyone else who was born with a birth defect of any kind - no arm, six toes, no vision, OK? There was an anatomical birth defect that was underdeveloped beyond the age of 2 years old." (assertion (male) added)

The same television news reporter attempted to address the false accusation that she had somehow deceived her husband, that her husband didn't become aware of her medical history until April 2010. Heather Delgado and Simona Longoria have included a fraud claim in their lawsuit against Nikki Araguz based on this accusation. Nikki made her case to the news reporter by disclosing that she didn't have genital reconstruction surgery until October 7, 2008, two months after her August 2008 marriage to Thomas, with the following response to the reporter:

"I had the operation two months after our marriage, and my husband was fully aware, and the birth defect that I had essentially was not a problem to my husband," she said. "He was proud to be my husband as much as I was proud to be his wife."

However, Nikki Araguz is going to need help from skilled attorneys and persuasive medical expert witnesses in order to make her case before the court. While she has been unlucky to have chosen to marry in Texas, she is luckily surrounded by a legal team ready and willing to do everything in their power to help her.

Nikki Araguz - two days after her husband's death.

Currently, Nikki Araguz presents the demeanor of the mature and maturing thirty-five year old woman she is, a woman whose thin youthful beauty has settled into a more filled out thirty-something attractive charm, and subdued calm. She expresses herself in video interviews with emotional presence at the same time she is capable of intellectually lucid clarity. Her attire demonstrates social awareness appropriate for her thirty something status, providing indications of social as well as intellectual sensitivity. She also has a beautiful voice; one that delivers her usually articulate ideas with a pleasant warmth. Just two days after her husband died, during a video interview she gave to a small local newspaper, she said of personal relationships:

"If there is anything that I can say to anybody, don't waste a minute of your life arguing. Don't walk out the door and not say I love you, because you never know when you'll never get to speak to them again.",

http://www.victoriaadvocate.com/videos/2010/jul/06/2030/

It was a statement she made with heartfelt emotion in her voice, as steady tears of genuine grief streamed down her face. The majority of her statements since this tragedy began, have been focused on similar forms of reflection, and requests for respect and dignity from the media and the public.

Although Nikki's small immediate family hasn't been physically present when she has appeared at the district courthouse in Wharton, TX, her family has expressed a desire to be there if they were physically able. Unfortunately, both Nikki's parents have severe chronic illnesses. In fact, Nikki has apparently made frequent excursions to help her mother, who has suffered from and been hospitalized with strokes and seizures, and apparently has diabetes, heart disease, and partial paralysis. Nikki's mother Sheri has been active and present on the facebook.com support page setup for Nikki though, providing what support she can through that medium. As far as trying a case in the media is concerned, the presence of family seems to give the public an impression that someone has social legitimacy. With that in mind, the people from Nikki's immediate family whose presence might lend moral support to her during court appearances are her biological siblings Vanessa and Gary, whose public statements about Nikki have been entirely supportive and corroborative.

With help from the Houston transgender support center, Nikki Araguz has apparently been staying with friends and supporters, and spending nights in hotels, as far from Wharton, TX as is practical, since her husband's death and the onslaught of media frenzy that surrounds her. Other than a couple visits to the courthouse there, and visits to her husband's grave site, Nikki has stayed away from Wharton, TX. One possible conclusion that it seems reasonable to reach from such a portrait, is that Nikki Araguz is a woman whose life over the past few years has matured her in ways she probably never dreamed of before the day she met Thomas Araguz. One can only wonder how someone like herself, or like Christie Littleton and others before her, forge new life plans after such events, or how they structure their future personal relationships.

Results from the August 16, 2010 Court Hearing

2010-08-17T08:07:00.000-07:00

Wharton County District Courthouse

The news reports about what transpired at the Wharton County District Courthouse before Judge Randy Clapp on Monday in Wharton, TX, have been scant and nebulous. Apparently, the television reporters weren't interested enough to show up for, or sit through, the lengthy hearing, and have instead based their news accounts on second hand information developed from statements made primarily by the attorneys representing the plaintiffs, Heather Delgado and Simona Longoria. The news reporters also seem to lack much understanding about the nature and structure of civil litigation, leaving their reports confused and misleading. What follows here however, is an analysis of the consensus of information about what transpired during the hearing, and information about what should have transpired, but has yet to be reported by the news media. Without having been in the courtroom, it may be days before it is possible to sort through the posturing, to discover the truth about what actually transpired in the courtroom on Monday.

First of all, there is agreement among sources that Simona Longoria was appointed executor over at least part of her late son's financial estate. The more reliable sources have described this as a limited appointment by the judge that is restricted to Longoria having dominion over Thomas Araguz's personal finances such as bank accounts, his personal property, and his motor vehicle, apparently a truck he owned. It has been clarified that Simonia Longoria has not been appointed to administer the significant non-testamentary benefits owed her grandsons.

It also isn't clear what property Thomas and Nikki Araguz owned together that was co-mingled, such as furniture and household goods, about which there may be some ownership dispute that supersedes marriage law. None of the reporting has clarified how the vehicles owned by Nikki Araguz and Thomas Araguz were titled either. In other words it is not clear whether the truck Thomas owned had a title in his name only, or a joint title naming he and his wife Nikki together. Nor has any information been disclosed about the title of the vehicle that Nikki Araguz owns and is currently driving. All the indicators imply that Nikki Araguz has lost this aspect of the battle, and that she has probably been forced to re-build from scratch, to buy new furniture and household appliances, in addition to finding and renting a new residence for herself. Meanwhile Simona Longoria now has a legal and fiduciary duty to dispose of Thomas Araguz's estate in strict accordance with Texas inheritance law. If she doesn't demonstrate emotionally detached judgment, and adherence to the relevant statutes, she could find herself back before the having to answer some questions herself. Given her level of animosity and emotional involvement, her behavior, could be worth watching closely as event unfold.

There have also been some vague allusions to the fact that like most individuals, Thomas Araguz had debts when he died. However, the reports do seem clear that as executor, Simona Longoria has been charged with handling whatever debts Thomas Araguz had at the time of his death. In addition to the usual credit card debts, he likely had outstanding student loans from his recent studies at the Wharton County Community College. Surely, Longoria will be charged with selling the truck and using whatever proceeds are available after the sale to help pay those debts, including any outstanding child support for his sons. It also seems likely that arrangements can be made with the federal government to forgive a student loan after the death of the borrower. None of the reports have included any details about these matters, and apparently the attorneys Edward Burwell and Frank Mann, who represent Heather Delgado, were unwilling to discuss the financial specifics with reporters. It seems reasonable to speculate that Thomas Araguz was technically insolvent, as are most Americans, at the time of his death, unless some of the frozen portions of his estate are made available to pay his creditors.

Also during the Monday hearing, all the parties stipulated that distribution of any and all funds owed Thomas Araguz's two sons, that were theirs regardless of the outcome of the lawsuit, should be distributed to them immediately. However, none of the reports have been clear about who would represent Thomas's estate for this purpose, to oversee accounting of those funds and their distribution. Meanwhile, the various insurance companies and related institutions in possession of those proceeds, are reportedly reluctant to begin distribution of those funds to anyone, until the lawsuit has concluded and made clear determinations about the appropriate beneficiaries, and until the person or entity representing the estate for those purposes has been clarified. A significant portion of the funds destined for the children also seems earmarked to pay attorneys fees. It has been clarified that the largest portion of the funds for the children, about $300,000, do not pass through the estate, and therefore are not under the aegis of Simona Longoria. Those funds are called non-testamentary funds, as was clarified by Darrell Steidley in his cogent news conference after the court hearing.

Meanwhile, during the past week, the parties had apparently prepared a stipulation that $60,000 in pension benefits that Thomas Araguz specifically designated for Nikki Araguz should also be distributed to her immediately. Those are funds Nikki Araguz apparently needs immediately, to get resettled, and to help pay her day to day living expenses. Despite the lack of information about this very important topic in the mainstream media, the $60,000 is apparently on its way to Nikki, minus attorneys fees with all certainty.

Darrell Steidley (left) who represents Nikki Araguz had also filed a motion with the court, that asked the court to remove Frank E. Mann III as an attorney involved with the case. However, Darrell Steidley apparently withdrew that motion, but no explanation has yet been disclosed regarding his reason for doing so. Frank E. Mann III, had reportedly committed multiple ethics violations in connection with his representation of clients adversary to Nikki Araguz, and he is currently under investigation by the Texas State Bar Association for those viiolations, which were the basis for the motion.

More importantly, the Defense Motion to Dismiss was apparently not considered by the court on Monday, oral argument about it was not a part of Monday's court hearing, and the judge has not yet made a ruling on it. In addition, no information has been provided by any source about when the court will hold a hearing on that motion. That motion was primarily procedural though, and not likely to be granted by the judge in any event. It really won't matter if it isn't considered until later, for example at the same time the judge considers any future motions for Summary Judgment that the parties seem likely to file. Although the attorneys representing Heather Delgado have publicly postured that they will be filing a motion for Summary Judgment at the earliest possible date, it also seems likely that the attorneys representing Nikki Araguz will file a motion for Summary Judgment at least to have the fraud claim stripped from the case.

Mr. Steidley, had also filed a motion to have Simona Longoria removed from the lawsuit because she does not have legal standing to be a party. None of the news reports and sources had any specific information about the disposition of that motion. However, it is possible that by appointing Longoria executor, the judge created an interest on her part and thereby made that defense motion a moot issue.

Nikki Araguz (left) leaving the courthouse

Judge Randy Clapp did apparently make inquires among the attorneys about creating a discovery schedule. According to Cristan Williams of the Houston Transgender Center, the judge and the attorneys discussed a discovery schedule that would conclude some time around the first of the year. For reference, in many jurisdictions, that would be considered an extremely short duration for discovery. Meanwhile, outside the courthouse Edward Burwell and Frank Mann III were posturing about getting to a Summary Judgment Motion or trial before November. Those statements by the attorneys seem like posturing with little credibility, but which various newspapers have run with and reported. As part of the discovery process, both parties will likely need to issue subpoenas duces tecum, which are subpoenas for documents, rather a subpoena for testimony, in order to acquire whatever medical records are available about Nikki Araguz. However, in all likelihood, the most important medical records, ones from Nikki's childhood, are surely all long gone by now. Hopefully, her more recent physicians have documented her congenital intersex condition in their files about her, to help corroborate her claim of having been diagnosed with Androgen Insensitivity Syndrome. In addition, the well known and highly respected surgeon who performed genital reconstructive surgery on Nikki surely took before photographs of her genitals to document what was repaired. Unless Nikki Araguz has been back to Trinidad, Colorado for a checkup since her October 2008 surgery, it doesn't seem likely that her surgeon would have taken any result photos though. The parties, through their attorneys, are also likely to exchange written questions among each other, called interrogatories and requests for production of documents, to which the parties usually have thirty days to respond. Once the parties have assembled an adequate amount of evidence and organized it, they are then likely to depose each others party's, and depose any medical expert witnesses that the parties expect to testify on either party's behalf. Obviously this sort of process takes time, a process that could easy last beyond the new year.

While the news media is hungry for instant results and television drama style conclusions, it will likely be months before this litigation will reach any definitive outcomes. Even once it does, the losing party seems sure to appeal, which will start an additional process that is likely to last for years. Lastly, it seems like readers should remember that this entire fiasco could have been avoided if Thomas Araguz has prepared a carefully crafted will that explicitly stated his wishes and which clarified that his wishes were valid regardless of whether or not the government considered his marriage to Nikki Araguz legal. Once again, the moral of this story is that every intersex or transsexual person, and the people who care about them, need to have a well crafted will, and possibly a living trust, drafted and executed immediately in order to avoid re-living the fate of Nikki Araguz.

(UPDATE: At the link below is a transcript of the news conference attorney Darrell Steidley gave outside the courthouse Monday afternoon)

http://thenikkiaraguztrial.blogspot.com/2010/08/news-conference-with-attorney-darrell.html

News Conference with Attorney Darrell Steidley Monday August 16, 2010

2010-08-17T00:01:00.000-07:00

What follows is a complete transcript of the news conference that attorney Darrell Steidley gave outside the Wharton County District Courthouse on Monday afternoon August 16, 2010, after the hearing inside. Mr. Steidley represents Nikki Araguz in her defense of the probate lawsuit filed against her by Heather Delgado, her late husband's ex-wife, and her late husband's mother, Simona Longoria. In it, Mr. Steidley provides answers to many questions that have not been clarified elsewhere.

Darrell Steidley: All parties are in agreement that anything we can do that facilitates benefits going to the children we want to do that. That’s always been our position. Nikki is all for that. We have never made any claim against any of those benefits. We never will. So, I think you just saw today, a less heated exchange about that, because that was the focus today.

There wasn’t any objection. Everything was mostly just housekeeping as far as form and substance and order. We got that handled. They appointed Thomas’s mother the administrator of the estate so that she can start to handle that business.

Reporter: Any idea how much the benefits are that are going to the children?

Darrell Steidley: Well I don’t know what the exact number is. I know that I’ve had a crash course from the benefits administrator on that. I think that when you add it up, it’s quite a sizable figure.

Reporter: Like six figures? Can you give is a potential range?

Darrell Steidley: I think that the range is somewhere in the neighborhood of $300,000 for the children, but it could be more than that. But I just think that is a tremendous thing that we have in place for our people who put themselves in harm’s way each and every day such as firefighters. We are just trying to get that facilitated. Again, like I said, we are trying to move that as fast as we can to get that to the children because none of that is in dispute.

Reporter: So as a result of today’s actions in court the children, the wheels are in motion to get the children their $300,000?

Darrell Steidley: Absolutely. The first step in any probate proceeding before you can start to administer any funds out of that would be to appoint the administrator and personal representative. However, most of the benefits will be of what they call a non-testamentary kind. They don’t have to pass through the estate. They are benefits. But what happens when litigation occurs is that, necessarily parties become a little timid about taking actions because they want to make sure that everything is handled appropriately. We are trying to alleviate any of that. There’s no roadblocks on our part. So, anything we can do to put them (insurance and benefits companies) at ease or make them feel like there is no liability on their part, that’s just not an issue for us.

Reporter: So, is Thomas’s mother going to be the administrator of the $300,000 going to the children, or is it strictly his personal belongings?

Darrell Steidley: No. She is just in charge of the estate as it is. We are not sure exactly what the amount of funds that are going to be in it. I mean Thomas and Nikki were not wealthy people so the estate as I understand it is not very large to begin with. So, we just want to make sure that whatever there was, the children can use it for support. They need it, so that they can have access to it as quickly as possible. So that is what that is about.

Reporter: So she is not going to be the administrator of the benefits going to the children?

Darrell Steidley: No, that’s going to be, that’s not a fine line. Like any legal question, your probably not going to get a straight answer. But, the way that those work on non-testamentary transfers, much like the way that Nikki’s funds were approved last week. Those were designated specifically for her, so they don’t have to go through the probate proceeding to be approved. Those are things by law that pass just directly to the people that receive those benefits. So the children, and the benefits that the children get, it’s my understanding that many of those benefit function in the same fashion, where you don’t have to go through the estate, but there are certain things have to be taken care of on a personal level, to make certain they get what they are due under Thomas’s estate. So that is the gist of that.

Reporter: So, why wasn’t Nikki here today?

Darrell Steidley: It was just unnecessary for her to appear. We discussed everything that was going to happen today. The last time was a temporary restraining order where she was ordered to appear by the court, which is quite normal. But today was more of housekeeping issue. The reason Mrs. Longoria was here was because she has certain obligations she must perform under the law such as making testimony that is required under the probate code so that she can she can become the administrator. So she has to put that on the record. That’s why she was here today.

Reporter: And what money was approved for Nikki? Was it the $60,000?

Darrell Steidley: Correct. It was a life insurance policy Thomas specifically named her the beneficiary of the funds in case something happened to him. The benefits themselves are designated all across the country is my understanding. It’s not a designated beneficiary where you name somebody. These are funds setup strictly for the spouse and the children. And of course we know we are having litigation about Nikki’s designation as the spouse. So that’s that issue. But there is no issue with the children so that is something we are trying to help with in any way that we can. Although obviously we are not acting on behalf of the children, but we are trying to help them in any way we can.

[ … name spellings given ]

Reporter: What is the next step?

Darrell Steidley: What is happening now is that we are going through the suit over the disposition of the marriage itself. That is in the discovery process, where each party gets to provide questions and requests for documents for evidence, and we will have some depositions, so you are probably looking at sixty to ninety days before there is a hearing.

Reporter: And your Motion to Dismiss, that was based on the new provision in the Texas Family code?

Darrell Steidley: Correct. And I filed that, and then that is just something I do, but afterward I started thinking whether that was something I wanted to pursue at that time, but I wanted to get that filed. The judge wants to see more evidence before he is inclined to take it up basically is what he was saying, so it was properly handled. Okay? You are welcome, thank you.

What to expect Monday August 16, 2010

2010-08-15T23:36:00.000-07:00

(Updated information on the results of Monday's hearing are available in the following new post)

http://thenikkiaraguztrial.blogspot.com/2010/08/results-from-august-16-2010-court.html

On Monday August 16, 2010, the parties in the lawsuit Heather Delgado and Simona Longoria have filed against Nikki Araguz, will return to the district courthouse in Wharton, TX for a hearing on various motions both parties have filed. After considering motions on Monday, at some point, the judge hearing the lawsuit will also need to order the parties to make and file a plan for discovery, the evidence gathering process. It would appear that both parties have a lengthy evidence gathering process ahead of them. That process will likely include both parties requesting documents from the other, depositions of the parties and various witnesses, a possible medical examination of Nikki Araguz by one or more physician experts in the area of intersex conditions, including DNA testing, and other evidence gathering efforts. Once the parties have completed an adequate amount of evidence gathering it seems likely that both parties will file motions for Summary Judgment without trial, requesting that the court rule on various aspects of the lawsuit as a matter of law, given the legal arguments and evidence presented with the motions, and without trial. However, those motions are likely to be heard some months in the future.

As for Monday, the attorneys representing Nikki Araguz have filed a motion that requests the court remove Simona Longoria as a party to the lawsuit because she does not have legal standing to be a party. There is every likelihood that Nikki Araguz will get a favorable ruling from the judge on this motion. This is because legally, the actual parties at interest to the lawsuit as petition/plaintiff are Thomas Araguz's sons. However, because they are minors, only their guardian can serve as party instead for them in a lawsuit. Consequently Heather Delgado, the biological mother of Thomas Araguz's sons, is the only person in the present circumstance who can represent her sons, not their paternal grandmother.

Nikki Araguz with security help leaving the courthouse July 23, 2010

Meanwhile, Chad Ellis, the attorney representing Simona Longoria, has filed a motion to have the court appoint Simona Longoria the executor of Thomas Araguz's estate. It could be possible for a court to appoint her as such, but only if there isn't some other person who legally precedes her in priority as an heir. However, the court cannot make such a determination until the court makes a final ruling on whether or not Nikki Araguz is the primary legal heir to Thomas Araguz's estate. Given the contentious nature of the proceedings, the court has an opportunity to overrule both sides in the case and appoint a professional and disinterested non-party the temporary executor of his estate until the probate proceeding is completed, or even as the permanent executor of his financial estate if the court so deems. Sadly, as a firefighter, it seems like Thomas Araguz should have better prepared for the risky nature of his volunteer work, by having created a while as part of preparations that could have avoided the entire ordeal facing Nikki Araguz. If Thomas Araguz had prepared an astute will and trust, he could have given all of his property and finances to Nikki Araguz, regardless of marriage, and the court would not have been able to overrule his wishes. It seems like one of the best social consequences of this lawsuit, might be that it inspires many more people to get their estate documents in order right away, so that their heirs don't end up in the sort of battle that Nikki Araguz and her attorneys are waging. Probate disputes are actually very common though, and even under less contentious circumstances, they often damage or even destroy families.

The attorneys representing Nikki Araguz have also filed a Defense Motion to Dismiss the lawsuit against her, based on the argument that the petitioners/plaintiffs do not have subject matter jurisdiction. What this means, is that because they contend a September 1, 2009 change in Texas statutory marriage law made Nikki's marriage to Thomas Araguz legal, there isn't any issue for the court to consider, because Heather Delgado and Simona Longoria don't have any legal basis for their lawsuit as a consequence. Although it doesn't seem likely that the court will grant this defense motion, it was an important procedural step for Nikki's attorneys, because its legal arguments will likely become part of the foundation for their nearly certain appeal case. It seems important for them to raise the issue early, rather than wait for a Summary Judgment Motion, so that they do not give any appearance of accepting the petitioner/plaintiffs' premise for their lawsuit. What is most important to understand is that this defense motion establishes a foundation on which a legal battle likely to last for years will be waged.

The last motion filed, but among the motions filed by the attorneys representing Nikki Araguz that will likely have the most immediate impact, is their motion to have the court release Thomas Araguz's $60,000 in retirement benefits to Nikki. This will likely occur because Thomas Araguz specifically designated in writing that Nikki Araguz should be the beneficiary of those funds in case of his death. He checked the "other" box on the pension policy to be clear that it didn't matter to him whether or not Texas courts considered him legally married to Nikki Araguz. The attorneys representing Simona Longoria and Heather Delgado have told newspapers they do not intend to oppose the motion, which probably makes that issue a done deal. However, since Nikki Araguz's attorneys have likely entered into a contingency fee contract with her, they will probably take nearly half the proceeds, in all likelihood leaving Nikki Araguz with just $30,000 from that fund. The Wharton Journal Spectator reported on this as follows:

Monday, August 2, 2010

The third motion filed by Nikki Araguz’s attorney’s asks for the court to release the remaining $58,000 of the $60,000 she received as a benefit from the Texas Emergency Services Retirement System. Her attorneys said Araguz was a listed as the sole beneficiary by name as opposed to the payment being made to a surviving spouse.

In phone interviews, Ellis, Mann and Burwell all indicated they had no plans to oppose the motion.

http://www.journal-spectator.com/articles/2010/08/02/news/doc4c576461d5f22756176763.txt

However, that $30,000 could make a big difference for Nikki Araguz because one of the things not reported on by the newspapers is the nature of Nikki's present living situation. There seems be some question about whether or not she presently has any permanent residence in Wharton, TX, and she has spent the last month without income. Because of the lawsuit, Nikki Araguz shutdown her local magazine business in anticipation that the negative press about her would make it nearly impossible for her to sell enough advertising to make a profit from future issues, or even get adequate distribution among local businesses. Few news reports have reflected on these practical and emotional ways in which all these events have impacted Nikki's circumstances. Their primary focus seems to have been making Nikki Araguz the subject of a virtual public pillory.

(Updated information on the results of Monday's hearing is available in the following new post)

http://thenikkiaraguztrial.blogspot.com/2010/08/results-from-august-16-2010-court.html

Nikki Araguz Lawsuit - An Examination of Littleton v. Prange

2010-08-13T00:01:00.000-07:00

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.

http://christielee.net/crtdec2.htm

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:

http://www.annelawrence.com/twr/srsindex.html

If an ostensibly enlightened court were to impose a genital standard for sex determination, including intersex and transsexual people, currently, transsexual men would be forced to choose from a sometimes less than optimal set of options with regard to surgery that provides male genitalia in order to meet such a legal requirement. Such a standard would leave transsexual men like Thomas Beatie of Oregon, who remains capable of gestating children and giving birth to them, and as done so, outside such a legal standard. A genital standard also has implications for other aspects of life in modern society. The most frequently cited is inmate placement standards for jails and prisons. If arrested, would Thomas Beatie want to be placed in general population with other men, while still possessing a vagina, and if not should a court of law consider him legally male? Other curious examples worthy of consideration in order for a court to develop a rational but comprehensive standard for legal sex determination would surely need to include cases such as that of Charles/Judy/Yosef Kirchner (4), who began life as a transsexual women, obtained vaginoplasty surgery and facial feminization surgery and lived for twenty years as Judy Kirchner and even married and divorced twice, before turning to male life as Yosef Kirchner. However, Yosef Kirchner still has a vagina. What sort of standard for sex determination would satisfy all these various situations? If a genital standard were used, wouldn't Yosef Kichrner likely need to be considered legally female, as might Thomas Beatie? If not a genital standard, then what standard, with what criteria, and how would it address and encompass the sorts of exceptional examples such as the people just cited?

Given all the foregoing, it seems like an assertive legal team representing Nikki Araguz might want to consider multiple attacks on the Littleton ruling, despite the difficulty of presenting a fully rational alternative standard even if given a favorable ruling by the court. One of the attorneys representing Nikki Araguz, Phyllis Frye, has already written extensively about possible ways to attack the Littleton ruling. One defense approach would be to argue that Littleton is simply incorrect law from a scientific and medical perspective with regard to genetics and sexual morphology. Another defense might be that Nikki Araguz was born in California, and if she does indeed have a female California birth certificate, that Texas should recognize its validity under federal constitutional law. A third defense is that the 2009 statutory change to Texas marriage law supersedes Littleton. In fact, the attorneys representing Nikki Araguz have already presented this argument in their recent Motion to Dismiss for lack of subject matter jurisdiction. A fourth defense, and one that also seems likely, is to persuade the court that Littleton shouldn't apply to Nikki Araguz because she is intersex, and using arguments also made within the scientific defense, the court should consider her legal sex status de novo, taking into consideration that she was born with Androgen Insensitivity Syndrome (AIS). In order to make these arguments to the court, the attorneys for Nikki Araguz will likely need to have her DNA tested and to have her examined physically by one or more physicians who are medical experts in the science of intersex conditions. The physicians would need to prepare expert opinion reports, and would be required to testify in any court hearing on the matter so that they could be cross examined. Such expert examinations, reports, and testimony can be very expensive, often costing tens of thousands of dollars at minimum. The attorneys for Nikki Araguz would also need to gather every relevant medical record they can obtain that might contain evidence to corroborate the expert testimony and confirm Nikki's AIS diagnosis. For example, the physician who performed genital reconstruction surgery on Nikki Araguz likely has before and after photos of her genitals that could be used for evidence. In addition, the surgeon herself could be enlisted as a witness, both with regard to the surgery itself, as well as the date on which the surgery occurred. It seems likely as well, that the plaintiffs may decide to obtain a court order to have Nikki Araguz's DNA tested and possibly to have her submit to an examination by a physician of their choosing, and possibly requesting DNA testing of Thomas Araguz as well, since under Littleton, both of them would need to have an XY sex chromosome pair in order to fulfill the requirements of that court's ruling against same-sex marriage. Preparation of this sort of evidence and testimony, and writing legal briefs in support of it takes time, far more time than the posturing by the plaintiffs that they plan to file a motion for summary judgment within weeks.

Another aspect of the Littleton case and the Delgado v. Araguz case that seems worth considering, are the ways in which intersex and transsexual people might want to structure their lives to protect against the sort of ordeal that currently consumes life for Nikki Araguz. First, it seems like anyone who is intersex or transsexual should only marry in states that provide universal marriage equality. That currently means that such people should marry in Massachusetts. However, given the recent ruling on Proposition 8 in California, that may change. However, until there is a final resolution to that federal court case in California over marriage equality, it seems like every intersex and transsexual person interested in marriage will need to make careful and well informed decisions. For the moment, Massachusetts also seems to be the only legally safe state for married couples with one or more intersex or transsexual partners to live in after marriage, so that the marriage can be protected from the sort of legal assault waged against Littleton and Araguz. Another approach is for people to live without legal marriage, but with carefully drafted estate documents that financially provide for that intimate partner in case of death.

If and when intersex or transsexual people choose to marry, one of the things it seems like they should do and plan carefully about is the procurement of appropriate identification documents before getting married. It seems like any intersex or transsexual person who tries to get married without having their documentation in order would be negligent. However, all too often that is the case. For example, if Nikki Araguz had waited until after her genital reconstruction surgery in October 2008 to get married, she could have obtained a female birth certificate from the state of California where she was born before getting married, and the previous one would have been sealed by the state and inaccessible without a court order. That fact pattern might have been influential on both the circumstances that existed before here husband's death, and before a court considering the validity of her marriage after his death. Given that Nikki Araguz knew her medical situation from an early age, she could also have better protected access to her original birth certificate. For example she could have refrained from giving a copy of it to the attorney Frank Mann in 2002 when he represented her in a bankruptcy proceeding, thereby preventing the scurrilous Mr. Mann from being able to violate attorney client privilege by providing copies of it to the media. What also seems worthy of speculation is that the attorneys representing Nikki Araguz have yet to publish a copy of her female birth certificate from California, if indeed she ever got one. A passport with the appropriate sex designation also seems like a good piece of documentation for intersex and transsexual people. Passports are especially helpful because sharing the information on one doesn't have the identity theft risks associated with sharing a birth certificate.

Separately, but related to the marriage problems intersex and transsexual people face, is the fact that only one U.S court has ever affirmed the post-surgical legal sex status of any intersex or transsexual person, which occurred in New Jersey many years ago, M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976) (3). Unfortunately, every case in which the issue was before a U.S. court, involved a marriage, and there has never been a case when an intersex or transsexual person has litigated the issue of their legal sex status before a U.S. Court of law outside of a marriage related dispute. This is curious because there are some U.S. states where there are vital statistics agencies that won't change birth certificates, where the courts may be receptive to a lawsuit about such a legal issue. What makes matters even more murky for intersex and transsexual people though, is that only a couple states, such as Illinois and Michigan have statutory law that provides for change of legal sex status, and issuance of a new birth certificate after genital reconstruction surgery. Most states have simply allowed their vital statistics agencies to promulgate administrative policies that allow for such modifications. However those administrative policies do not have the force of statutory law. The Littleton ruling addressed this very fact when overruling the amended Texas birth certificate that Christee Littleton obtained only after filing her wrongful death and malpractice lawsuit regard the death of her husband. In this regard the court in the Littleton case wrote:

Christie was created and born a male. Her original birth certificate, an official document of Texas, clearly so states. During the pendency of this suit, Christie amended the original birth certificate to change the sex and name. Under section 191.029 of the Texas Health and Safety Code she was entitled to seek such an amendment if the record was "incomplete or proved by satisfactory evidence to be inaccurate." Tex. Health & Safety Code Ann. § 191.029 (Vernon 1992). The trial court that granted the petition to amend the birth certificate necessarily construed the term "inaccurate" to relate to the present, and having been presented with the uncontroverted affidavit of an expert stating that Christie is a female, the trial court deemed this satisfactory to prove an inaccuracy. However, the trial court's role in considering the petition was a ministerial one. It involved no fact-finding or consideration of the deeper public policy concerns presented. No one claims the information contained in Christie's original birth certificate was based on fraud or error. We believe the legislature intended the term "inaccurate" in section 191.028 to mean inaccurate as of the time the certificate was recorded; that is, at the time of birth. At the time of birth, Christie was a male, both anatomically and genetically. The facts contained in the original birth certificate were true and accurate, and the words contained in the amended certificate are not binding on this court.

http://christielee.net/crtdec2.htm

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 google.com. One thing appears surprisingly certain. Christie Littleton apparently continues to live in Texas, despite the availability of more favorable laws and culture elsewhere.

As decades pass, it is often increasing difficult to find transsexual people of historical note. For example, a woman named Canary Conn was one of the first transsexual women to publish a biography. Canary's Conn's transsexual biography is also relatively unique because she was very young at the time, whereas the vast majority of such biographies have been written by people who have waited until mid-life to seek treatment, with all the consequent complexities that entails. Canary Conn appears to have changed her name or something and constructed a private life for herself far from the social community that has developed around activism regarding gender recognition and equality rights for transsexual and intersex people. Another example of this phenomenon is Caroline Cossey. Although she is reportedly married and living in Georgia, she does not have a personal account on facebook.com and doesn't seem at all present within the community of publicly active transsexual people.

Given the precarious state of marriage legality for intersex and transsexual people, any married intersex or transsexual person could be the next Nikki Araguz or Christie Littleton, since legal issues are no where near settled except with a couple U.S. states, such as New Jersey because of case law, Michigan and Illinois because of statutory law, and Massachusetts which provides universal marriage equality for all people. It seems like the day when universal marriage equality exists cannot come soon enough for intersex and transsexual people, to stop the vicious sort of excoriation that Nikki Araguz is being forced to endure at a time when she can probably barely hold back her grief over the loss of her husband, constant companion, and best friend Thomas Araguz. Even without the nightmare surrounding her, experts say it takes as long as two years to absorb and acclimate to such grief. Meanwhile, she is being forced to endure an assault on her very identity.

references

(1) Littleton v. Prange, 9 SW3d 223 (1999)
http://christielee.net/crtdec2.htm

(2) Chief Justice Phil Hardberger, Texas Fourth Court of Appeals
http://en.wikipedia.org/wiki/Phil_Hardberger

(3) M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976) http://zagria.blogspot.com/2010/07/m-t-193-wife.html

(4) Yosef Kirchner
http://zagria.blogspot.com/2009/01/josef-kirchner-1964-performer.html

Nikki Araguz - PBS Video Interview

2010-08-12T00:05:00.000-07:00

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

2010-08-12T00:01:00.000-07:00

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.

Abbreviations

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.

2m18s
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.

6m30s
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.

9m30s
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.

11m05s
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)

the media's yellow journalistic smoke screen

2010-08-11T00:01:00.000-07:00

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.

http://www.click2houston.com/news/24358463/detail.html

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.

http://www.chron.com/disp/story.mpl/metropolitan/falkenberg/7139728.html

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.

http://www.chron.com/disp/story.mpl/metropolitan/falkenberg/7139728.html

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: http://en.wikipedia.org/wiki/Yellow_journalism

(2) Androgen insensitivity syndrome:
http://en.wikipedia.org/wiki/Androgen_insensitivity_syndrome

(3) Marci Bowers, MD: http://www.marcibowers.com/

(4) vaginoplasty post operative care: http://www.marcibowers.com/grs/postopcare.html

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

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

sex/gender determination - not just XX or XY

2010-08-10T08:18:00.000-07:00

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 - http://en.wikipedia.org/wiki/SRY

(2) swyer syndrome - http://en.wikipedia.org/wiki/Swyer_syndrome

(3) xx male syndrome - http://en.wikipedia.org/wiki/XX_male_syndrome

(4) androgen insensitivity syndrome - http://en.wikipedia.org/wiki/Androgen_insensitivity_syndrome

(5) x chromosome - http://en.wikipedia.org/wiki/Y_chromosome

Nikki Araguz Supporters Release New Video

2010-08-09T17:00:00.000-07:00

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.

Upcoming Motion Hearing - August 16, 2010

2010-08-08T19:50:00.000-07:00

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.

an outline of the civil lawsuit process

2010-08-04T08:07:00.000-07:00

Apparently, most people have little or no knowledge of how the civil lawsuit process works, or even how long it is going to take for the first major phases of the Delgado v. Araguz probate/inheritance lawsuit to be completed. Unless, there is an out of court settlement between the parties, based on the Texas court rules of civil procedure, the trial court level of this lawsuit is likely to last as long as a year, unless one of the parties succeeds with a Motion for Summary Judgment by the court without trial.

Here is a list of the major steps in a civil lawsuit:

Plaintiff files a summons and petition/complaint
Plaintiff files an optional motion for temporary restraining order (TRO) with petition/complaint
Show Cause Hearing for TRO - (TRO usually granted)
Defendant has option to file motion to attack validity of petition/complaint
Defendant files an answer to the petition/complaint
Discovery begins - which is the evidence gathering process

The judge holds a hearing and requires the parties to develop a discovery plan and schedule
The parties exchange written questions called interrogatories
The parties exchange written requests for production of documents and other evidence
The parties subpoena evidence from people not a party to the lawsuit
The parties take oral depositions of opposing parties, and non-party witnesses
The plaintiff might file a motion for court order for medical examination of the defendant

At any time, either party may file a motion for summary judgment by the court using existing evidence, without trial.
Discovery Deadline arrives - about nine months in Texas
The parties file various pre-trial motions.
- a party may move to disallow presentation of certain evidence or witness(es)
- either party may move to have a fact agreed upon (called stipulation)
A trial date is set and the case proceeds to trial, either by a judge alone, or by a jury.
Either party may appeal the verdict of judgment. However, appeals courts consider only matters of law, not the matters of fact, in a case.

The temporary restraining order (TRO) motion hearing that occurred on Friday July 23, 2010, and which began the height of the media frenzy over the case, is actually standard procedure. It would have been extremely unusual for the judge to do anything other than grant a TRO that places the funds at issue in the case into stasis until the court process has been completed. In this case the judge froze the finances at issue from access by either party. The word temporary is what is most important about a temporary restraining order, and such a decision may have nothing to do with the final outcome of a case, it just freezes funds and orders the parties to refrain from certain activities that might otherwise render the litigation pointless. At the end of the lawsuit, the judge will likely issue a permanent injunction against one of the parties, enjoining that party from access to the funds and assigning the funds in question to the prevailing party. However, the judge is likely to issue yet another temporary restraining order at the same time, that keeps the funds frozen during the pendency of whatever appeals court proceedings follow the trial court's ruling.

The current phase of the lawsuit is the Motion to Dismiss, filed by the attorneys defending Nikki Araguz, on the basis that the plaintiff does not have a claim on which relief can be granted as a matter of law. It doesn't seem likely that the judge is going to grant such a motion however. Instead, it seems like most courts would withhold judgment on the central issues in the case, and instead order the case forward into discovery, the evidence gathering phase, so that the parties can develop their evidence and present their cases to the court again once they are fully developed. The logic is that the parties should have an opportunity to develop and present a complete court record, so that an appeals court considering the matter has a full set of findings of facts and findings of law.

The attorneys defending Nikki Araguz have also filed a motion to exclude some of Thomas Araguz's finances from consideration within the lawsuit. That motion argues that life insurance policies and pension fund policies on which Thomas Araguz specifically designated Nikki Araguz as the beneficiary should not be at issue in the lawsuit, and should therefore be unfrozen and made available to Nikki Araguz immediately. The argument the attorneys for Nikki Araguz have apparently made includes the fact that Thomas Araguz checked the "other" box on those documents, implying that the issue of marriage should not apply to those funds. As of this writing, the judge has not yet ruled on this motion, but a hearing has been set for Monday August 16, 2010.

After a period of evidence gathering, either party can again present its case to the court for judgment as matter of law by the judge, without a trial or jury. That process is called summary judgment. It seems likely to expect that both sides will use that tactic at some point during the litigation. The discovery process is likely to continue until the beginning of 2011, unless the discovery process is interrupted by one or motions for summary judgment from either side of the case.

Even if this case were to go to trial, the court seems likely to hold a bench trial, to be judged as a matter of law by the judge, without the need to determine matters of fact using a jury.

Given the pugnacious demeanor of the parties in this case, it seems all but certain that the parties will take this case to an appeals court if they don't receive an outcome that satisfies them. An appeals court only considers "matters of law" for review and does not reconsider the facts on which its legal decisions should be made. Each stage of the appeals process can take a as long as a year or more to complete. Real life doesn't operate like fictional television courtroom drama. In fact, the media frenzy and public furor seem likely to have died down long before this case reaches its final conclusion.

Texas Court Rules of Civil Procedure - PDF file format

heather delgado's greed and vindictiveness

2010-08-03T11:17:00.000-07:00

Nikki Araguz (left) and Thomas Araguz (right)

In her news conferences and public statements, plaintiff Heather Delgado's primary focus has been on making negative personal accusations against Nikki Araguz, accusing Nikki of being greedy for trying to hold onto the life insurance and pension benefits that Thomas Araguz made Nikki the recipient of, and the other assets she stands to inherit as his wife, and falsely characterizing Nikki as a liar and a fraud. However, given an objective and thorough analysis of the circumstances and available facts regarding this case, the reasonable conclusion is that Heather Delgado is actually the person who is being not only greedy and vindictive, but also foolhardy by bringing her lawsuit against Nikki Araguz. Heather Delgado's actions are foolhardy primarily because: regardless of the outcome, the legal battle she has instigated will result in the attorneys taking a significant amount of the money from the parties that would otherwise have been available to them for their benefit, and because she is the originator of a controversy that seems sure to spill over into emotional and financial harm to the children involved. The appropriate conclusion also seems to be that Heather Delgado is the liar, not Nikki Araguz. Heather Delgado's actions are doing little more than scorching the earth beneath her own bare feet.

It seems likely that both parties have hired their attorneys on a contingency basis, which means the attorneys will take their fee, if any, from a percentage of the parties' financial gain, plus their expenses. These days, attorneys in such cases usually get almost half when their fees and expenses are combined. If Heather Delgado would have left well enough alone, her biological children would probably have a $300,000 fund for their well being, and she would not have subjected them to the public abuse that will likely result from the current media fiasco. Even if Delgado wins everything, and the attorneys take nearly half, her children are likely to be left with $300,000 at most, and only after a fierce battle that will have vilified everyone, is likely to have destroyed personal relationships, and seems likely to have emotionally harmed the very children who best interests are supposedly everyone's primary concern. Consequently, Delgado's legal battle doesn't seem likely to increase the finances available for care for the children, and instead seems likely to reduce the amount of money Thomas's Araguz's children are likely to receive in the end.

In other words, if Heather Delgado truly had the best interests of her biological children in mind, she would have shown the common sense not to involve them in a media frenzy in Texas that seems sure to find its way into their social lives when they return to school in the fall, has made her entire family the object of nation wide discussion and speculation, and seems likely to follow them for years into the future. It seems certain that this sort of legal battle will leave a permanent emotional scar on Thomas Araguz's children; scars that could have easily been avoided.

In addition, while Heather Delgado has chosen to publicly castigate Nikki Araguz for errors in judgment in Nikki's past personal life that have nothing to do with her ability to inherit from her husband, Heather Delgado's shrewish public demeanor has been one of a bigoted, mean spirited, scorned ex-wife, out to dredge up trouble at any cost, and make life miserable for Nikki Araguz, the woman whose relationship with Thomas Araguz implies that he believed Nikki was better able to make him happy, and who apparently judged Heather Delgado's character unworthy enough that he divorced her in 2007.

One of the lessons that it seems anyone can learn from this legal battle, is that it is never too early to begin careful, clear, and explicit, estate planning. It seems apparent that Thomas Araguz died "intestate", meaning without a will, although news articles have not mentioned that fact. Because Thomas Araguz had only specifically designated some of his estate to Nikki Araguz by naming Nikki the beneficiary of his life insurance and pension plan, the rest of his estate is left to the court to decide who should inherit, based on Texas law, because he did not leave a will. If Thomas Araguz had anticipated the potential for his accidental death due to the inherently dangerous nature of his work as a volunteer fireman, he could have more specifically and explicitly designated the handling of his estate with the potentially legally contentious nature of his relationship with Nikki Araguz in mind. He could have created a will and trust that specifically provided for Nikki Araguz regardless of whether or not a court of law considered them legally married, and could have made Nikki Araguz the executor of his estate and the trustee of his living trust. He could have had an attorney draft the documents to specifically reflect his wishes for Nikki Araguz, had the documents clearly state that Nikki Araguz should be the heir to his estate regardless of whether or not he was legally married to her, and he could have included specific statements about his awareness that Nikki Araguz had undergone vaginoplasty surgery and has Androgen Insensitivity Syndrome, so that she could not be accused of fraud.

Nikki Araguz defense team files new motion(s)

2010-08-02T23:25:00.000-07:00

Today, attorneys for Nikki Araguz in the Heather Delgado v. Nikki Araguz probate/inheritance case, have apparently filed one or more motions to dismiss the case, along with supporting declarations and exhibits. Their motion(s) contain multiple factual and legal grounds. The supporting declarations and exhibits also clarify some factual details with seemingly compelling evidence.

The defense motion cites a very minor change to the identification section of the Texas marriage statute that says a government document that indicates change of sex may be used as identification for a marriage license. They are referring to Section 2.005(b)(8) [proof of identity and age] which states:

FAMILY CODE
TITLE 1. THE MARRIAGE RELATIONSHIP
SUBTITLE A. MARRIAGE
CHAPTER 2. THE MARRIAGE RELATIONSHIP
SUBCHAPTER A. APPLICATION FOR MARRIAGE LICENSE
…
Sec. 2.005. PROOF OF IDENTITY AND AGE.
(a) The county clerk shall require proof of the identity and age of each applicant.
(b) The proof must be established by:
…
(8) an original or certified copy of a court order relating to the applicant’s name change or sex change;
…
Amended by:
…
Acts 2009, 81st Leg., R.S., Ch. 978, Sec. 2, eff. September 1, 2009.

Texas Family Law Code: Title 1, Subtitle A, Chapter 2, Subchapter A, Section 2.005, paragraph 8

Attorney Phyllis Frye (left) Nikki Araguz (center)

That 2009 statutory amendment is extremely obtuse and seems open to all sorts of varying interpretations. Of course both sides of the case have completely different interpretations about the meaning of that vague clause, which was added to Texas marriage law, apparently without any explanation regarding its purpose. The core argument presented by attorneys for Nikki Araguz is that this recent statutory change takes precedence over the 2000 lower appeals court decision in Littleton v. Prange, No. 99-1214 (Tex. 18 May 2000), that chromosomes define sex status immutably at birth. However, the Littleton v. Prange decision did not take into account the potential for mosaic sex chromosome conditions, or conditions like Androgen Insensitivity Syndrome (AIS) that make a person unable to develop male attributes because testosterone has little or no effect on people with the condition.

Of course attorneys for the plaintiffs, Heather Delgado et al, have argued the opposite about the statutory change. They argue the change in the statute provides for same sex marriages between a post-surgical-transsexual-female and an ostensibly genetic female. However, it seems like such an argument would defy the plaintiff's simultaneous claim that same-sex marriages are illegal in Texas. The logic presented by attorneys for Nikki Araguz is that her marriage is a heterosexual one, based on the fact that Nikki Araguz presently has a vagina and that Thomas Araguz had ostensibly always had a penis and an XY chromosomal pair, in contrary to Littleton v. Prange, and in accordance with the minor statutory change, Texas law should recognize the fundamentally heterosexual nature of such a marriage for all practical purposes. One fact that remains unknown, is the chromosomal makeup of Nikki Araguz's sex chromosomes, although Nikki's mother has made emphatic statements that Nikki Araguz was born with AIS, and video recordings of Nikki at about age nineteen or twenty provide ample evidence that testosterone had not had any influence on her body at that juncture in her life. What seems likely is that the attorneys for Heather Delgado will file a motion to require that Nikki Araguz undergo genetic testing and a medical examination to verify the status of her genitals and potentially her internal reproductive organs, if any, as well.

The second argument the defense makes in its motion, is that although the August 2008 marriage may not have been legal, the parties should be considered married under "common law marriage" in Texas after Nikki Araguz's vaginoplasty operation with Marci Bowers in October 2008 and after the subsequent statutory change cited above. The attorneys for Nikki Araguz have used September 2, 2009, as the date of their "legal and informal marriage", on the basis that the change in Texas statutory law took effect on September 1, 2009.

The defense also filed exhibits containing copies of email messages sent between Thomas Araguz and Nikki Araguz during October 2008 when Nikki was in Trinidad Colorado having her vaginoplasty surgery with Marci Bowers on October 7, 2008, but Thomas apparently had to stay in Texas because he was on call for fireman's duty. If they were smart enough to include the full transmission headers with the emails, it seems like such emails would serve as excellent evidence of what knowledge Thomas Araguz had at the time regarding the fact that Nikki Araguz has Androgen Insensitivity Syndrome (AIS), an intersex/hermaphroditic condition, and got surgery to create a vagina to align her genitals with her naturally occurring estrogen influenced hormonal condition. Thomas Araguz wrote in an email to Nikki:

What can i say to make you feel better? The only thing I known (sic) is 'I LOVE YOU.' Trevor and Tyler miss you dearly, they love you with all their little heats. (sic) Today has been a hell of day, would you agree? After taking (sic) to you, I called my mother and law (sic) to let her known (sic) the good news, about your opt. An (sic) you know she spead (sick) the good news all the world. HEY I TO GO I A HOUSE FIRE. ILU.

In response, Nikki Araguz replied:

My sweet husband, I LOVE YOU. It has been a day heck and also God answered prayers. I love you so much. We can now move on with the rest of our livrs (sic)...I just got this thing to work somehow and the pain lady came in and gave me morphine...si I am fading fast. You are my best friend, and Praise God fro (sic) you...this is wild that little thing is gone...I think I am supposed to see it for the first timr (sic) tomorrow....Imiss my boys too...Have a great day at school tomorrow...Love you sweet wife, Mrs. Nikki Araguz

On Monday August 2, Nikki Araguz has been reported as stating:

This is less about money than it is about the civil rights of my husband and I to legally be recognized as we recognized each other - as a heterosexual, male and female married couple. There is no question that my husband knew exactly what was going on. He was fully loving and accepting and compassionate to the medical condition that I was dealing with when we first met.

The defense team for Nikki Araguz either included in the same motion, or filed in a separate motion (newspapers weren't clear), a request to exclude from the lawsuit, all proceeds from insurance and pension funds, in which Thomas Araguz explicitly and specifically designated Nikki Araguz as the beneficiary. Apparently Thomas Araguz had the presence of mind to check the "other" box rather than the "spouse" box on those documents, which seems like it provides additional evidence of his awareness of the potential arguments over the legality of their marriage.

As for the August 2008 wedding ceremony, it seems like all sorts of people have wedding ceremonies without making them a legal matter recognized with a marriage license. Given today's motion(s), it seems like the defense team for Nikki Araguz understands that a marriage license from August 2008 wouldn't be valid under any legal theory in Texas, since Nikki didn't get to Trinidad for surgery with Marci Bowers until October 2008, and they have filed the email exchanges that document that Thomas was fully aware that was happening.

A couple of the news reports also implied that attorneys for Nikki Araguz have filed motions in both the child custody lawsuit and the probate/inheritance lawsuit, where Frank Mann represents Simona Longoria, or has other involvement with the cases, to have him removed. Evidence has surfaced the Frank Mann has committed "conflict of interest" and breached "attorney/client privilege", which are both serious violations of the code of ethics that attorneys are required by law to follow. One blog, known as "bad lawyer nyc", characterized Frank Mann as a "menace" who has no business practicing law.

In summary, it seems like the defense attorneys for Nikki Araguz are going to use the statutory change cited above as the basis for a fresh "first impression" legal battle over marriage legality for transsexual people in Texas. Today's motion also appears to serve as the Texas equivalent of the 12(b)(6) "failure to state a claim upon which relief can be granted" form of motion to dismiss that would have been filed pursuant to the federal style rules used in most other jurisdictions, and which always precedes filing an "answer" to a lawsuit.

Nikki Araguz - Criminal History

2010-08-01T11:06:00.000-07:00

The press has made a big deal out of the fact that Nikki Araguz has a history of committing petty crimes, including some petty felonies. That sort of person history isn't generally relevant to a probate lawsuit and seems more like part of a concerted effort by the Texas press and media to cast Nikki Araguz as a greedy villain when a more reasonable assessment is that Heather Deldago, who is suing Nikki Araguz is actually the greedy and malicious party. However, if Nikki Araguz needs to testify within the lawsuit against her, Nikki's credibility and her veracity could be challenged on cross examination because her criminal record could be brought into evidence for that purpose under the Texas court rules of evidence.

It appears though, that Nikki Araguz's attorneys are taking steps to establish her case based on other evidentiary sources so that her own testimony doesn't need to be the foundation of the facts she presents regarding her case. In fact, it seems like most of her case should depend on medical evidence, and documentary evidence based on public records like her marriage license, statutory changes, testimony and an affidavit from her surgeon Marci Bowers, MD regarding her surgery and medical background, and so on.

For purposes of clarifying some questions about Nikki's criminal history, the Wharton County Journal Spectator seems to have researched and documented it relatively thoroughly. In their article, they described her criminal record as follows:

During the time Araguz was a candidate for office, she was serving the final months of a sentence of two years deferred adjudication after pleading guilty to a state felony charge of possession of a controlled substance, cocaine, in the amount of less than one gram, on June 7, 2007.

Records at the Wharton County District Clerk’s Office state the Wharton County Grand Jury returned a one-count indictment on that charge on March 4, 2008. In a document filed with the district clerk on June 12, 2008, Araguz pled guilty and was placed on two years deferred adjudication probation by District Court Judge Randy Clapp.

[...]

In addition to the Wharton County case, a Department of Public Safety criminal history summary for Justin Graham Purdue, reportedly Nikki Araguz’s original name; Nikki Purdue, Nikki Paige Purdue and Nikki Paige Purdue-Mata includes a conviction for state felony charge of theft of between $1,500 and $20,000 dating back to an offense that reportedly resulted in an arrest taking place on Oct. 12, 2000. A finding of guilty was reported on Dec. 7, 2000 with the defendant receiving a sentence of three years probation and a $500 fine.

The same DPS summary shows a prior conviction for a class B misdemeanor offense of theft between $20 and $500. The defendant was arrested on that charge on Oct. 28, 1994 on the theft charge with a final pleading of guilty on Oct. 16, 1995 and a sentence of one year probation.

A listing of offenses with the Harris County District Clerk’s Office shows a case involving an additional theft charge of $200-$750 was completed in December of 1992.

In addition to receiving deferred adjudication following the guilty plea in the controlled substance case, the DPS summary also includes two other substance abuse offenses. They are both B misdemeanor driving while intoxicated convictions. The first of those involves an arrest on Oct. 28, 1994 in Harris County with a final pleading of guilty and a sentence of one year probation on Oct. 16, 1995. The second involved an arrest made by the El Campo Police Department on Oct. 2, 2005 with a final pleading of guilty on Nov. 16, 2005 and a sentence of three days served.

Here is a summary list of her criminal convictions based on the contents of the newspaper article at the link below:

1992 - Misdemeanor Theft $200-$750 - Harris County, TX
1994 - DWI - one year probation
1995 - Misdemeanor Theft $20-$500 - one year probation
2000 - Felony Theft $1,500-$20,000 - three years probation
2005 - DWI - three days jail
2008 - Felony Cocaine Possession - Two year deferred adjudication

Wharton County Journal Spectator Article

Nikki Araguz - media exploitation and personal revenge

2010-07-31T00:01:00.000-07:00

One of the side effects of press and news media sensationalization of something like the civil lawsuits against Nikki Araguz by her late husband's the ex-wife, Heather Delgado, are the various forms of media exploitation that arise as a result. Such exploitation seems like the modern version of the puritanical era practice of locking someone in a pillory at the town square, to be the object of ridicule, harassment, and humiliation. Here are three examples.

a puritanical town square pillory

First of all, Nikki Araguz is being exploited by newspapers and television stations in Texas, who are reaping significant financial gain from writing, publishing, and broadcasting, sensationalized stories about the intimate and not always relevant details of Nikki Araguz's life. These are stories their producers apparently believe generate morbid curiosity among the largely bigoted and hostile viewing public within the culture that dominates much of Texas. The result is that they appear to believe that providing a sensationalized and lurid presentation of Nikki Araguz will increase their television ratings, sell more newspapers, or generate more visits to their web sites, all operated for profit from advertisers. What has also been noticeably absent from the television and newspaper sensationalization, is that the news media has refrained from reporting on the personal histories and background of Heather Deldago and Simona Longoria, who are the people suing Nikki Araguz on behalf of Thomas Araguz's two sons. Altogether, this seems like a quite corrupted approach to journalism.

The second form of exploitation has come from the creator of a college student video documentary about Nikki Araguz made about fifteen years ago. It is apparent that the author of the video was paid a significant sum of money by the Houston, TX Fox News television station for the exclusive rights to broadcast it. However, one can't help but notice that the video's author has not been identified, neither by Fox News in Houston, nor by Nikki Araguz and her attorneys, who must certainly know who created it. In addition, Fox News has committed the unethical act of showing only heavily edited, and self serving, excerpts from the video, overlaid with their own editorializing commentary and intercut with other video, to create the editorial slant they want to present their viewers.

In their television report, the Fox News representation of transsexualism is of her being "troubled", their term, and "confused", also their term, while the video itself presents an obviously happy, very young woman, even at nineteen or twenty years old, who claims she had not even been taking female hormones at that point, despite her significantly feminine physique and total lack of any secondary physical features that would be caused by testosterone. In fact, if in the future Nikki Araguz is able to present medical evidence that she was not taking female hormones at that time, that might serve as evidence she has a medical condition called partial Androgen Insensitivity Syndrome (AIS), implying there may be a clear physiological basis for her transsexual condition, causing some to reach the conclusion that she had both a transsexual medical condition and an intersex/hermaphroditic medical condition that impacted her youth. Parenthetically, women with total Androgen Insensitivity Syndrome, are born with female genitalia, despite having an XY sex chromosome pair, because their bodies have no ability whatsoever to process testosterone, which is required during gestation in order for male genitalia to develop.

http://en.wikipedia.org/wiki/Androgen_insensitivity_syndrome

The potential that Nikki Araguz was born with AIS may provide a legal basis for making a claim to marriage legality that differs somewhat from the issues ruled upon in the Littleton v. Prange court case. Given this subtly significant aspect of that fifteen year old video, it seems likely that either or both parties to the probate/inheritance lawsuit will issue a subpoena to its creator, to produce it for use as evidence, which would also require him to serve as a witness to authenticate it for use as an exhibit and evidence if the case ever gets to trial. What has also gone unexamined by much of the press and media are the motivations behind someone selling such a video to a television station, which on a personal level means that person cares little about the feelings of Nikki Araguz, and doesn't care if Nikki Araguz, becomes the exploited victim of tabloid journalism, so long as the author makes a profit from it. Such a person is no friend of Nikki Araguz. Too bad that Nikki Araguz wasn't legally sophisticated enough at the time to require a written contract regarding the manner in which the author would be allowed to use the video of her in the future.

The third example of exploitation that has arisen, is the man Nikki Araguz apparently "ambushed" on a 1994 episode of the Jerry Springer Show. Once again all the newspapers and television stations have noticeably left that man's identity out of their news reports, despite the fact that his identity is surely publicly available and he can likely still be seen on television in re-runs of that episode of the Jerry Springer Show. Once again though, although Nikki didn't behave like a friend when she manipulated that man onto that television program without telling him about the disclosure she was going to make, the man she humiliated on the Jerry Springer Show has been able to turn the tables on her all these years later. That is quite a serious example of "what goes around comes around", and in this instance, it seems like Nikki's adversaries in the lawsuit against her are likely to use its implications about Nikki's character against her during the litigation as well.

Amazingly, at least from public appearances, Nikki Araguz seems to be holding up well emotionally, and except for displaying tangible grief about her late husband, she has handled intense public scrutiny with a significant level of detachment and maturity. The one asset Nikki Araguz undeniably has, is a team of attorneys with the desire, knowledge, tenacity, and apparently, the financial ability, to litigate this case on behalf of Nikki Araguz, no matter how long it takes, no matter how difficult the litigation, and no matter what the outcome.

frank mann - source of the Nikki Araguz leaks

2010-07-30T18:31:00.000-07:00

Yet another twist has come to light about the two lawsuits against Nikki Araguz. Apparently, Frank Mann, the attorney for Heather Delgado, the ex-wife of Nikki Araguz's late husband in the child custody lawsuit against Nikki and her late husband, had previously represented Nikki Araguz and Emilio Mata, Nikki's first husband, during a 2002 bankruptcy case. It is surely a violation of judicial ethics rules for Frank Mann to represent Tom Araguz's ex-wife, Heather Delgado, since his previous representative involvement with Nikki Araguz and Emilio Mata creates a direct conflict of interest.It appears that Nikki Araguz may have discussed her medical history with Frank Mann under attorney client privilege, and that Frank Mann has violated that privilege and disclosed that confidential medical information to Heather Delgado in the child custody case and in an email broadcast Frank Mann sent to friends of his about Nikki Araguz during her campaign for mayor of Wharton, TX. This explains how Heather Delgado became aware that Nikki Araguz is a transsexual woman, and it also explains the timing of Heather Delgado's knowledge of this information.

Texas state bar records show that Frank Mann has been repeatedly sanctioned for ethics violations in the past, and that his license to practice law has been temporarily suspended on multiple occasions. It is curious that Nikki Araguz and her late husband Thomas Araguz didn't know enough about the legal system to realize that Frank Mann shouldn't be representing a client in opposition to here after Frank Mann had already represented her, and that their attorney doesn't seem to have been aware either. In addition, Frank Mann had an ethical duty to refrain from representing Heather Delgado, Simona Longoria, or anyone for that matter, in any lawsuit against Nikki Araguz. The Houston Press describes Frank Mann's past involvement with the Texas State Bar Association regarding his ethics violations as follows:

It's not Mann's first dance with the Office of Disciplinary Counsel: in 1990, Mann agreed to a fully probated 36-month suspension for "misrepresentations of fact concerning the dates of his hospitalization for alcohol and substance abuse in an affidavit offered in support of a motion to retain." (The suspension was stayed; he was allowed to actively practice, but was placed on probation.) The Office of Disciplinary Counsel also ruled that, in one case, Mann "assigned away 100 percent of any attorney's fees" and then "intervened in the pending lawsuit, claiming an interest in attorney's fees."

In 1997, Mann was suspended for five and a half years and was not eligible to practice for the first 36 months. In that case, among other things, the Counsel found that Mann's paralegal "affixed [a] client's signature from a prior document to a proposed modification, without the client's consent." Mann wasn't in the office at the time, but he was "responsible supervision and instruction of his staff and for ensuring that his staff follows the law and the Texas Disciplinary Rules of Professional Conduct."

http://blogs.houstonpress.com/hairballs/2010/07/ex-wifes_lawyer_investigated.php

The newspaper article above reveals that attorneys for Nikki Araguz have already filed a complaint with the Texas State Bar Association. However, at first the Texas State Bar Association dismissed the complaint, and has only re-opened its investigation now that Frank Mann, Heather Delgado, Nikki Araguz, et al, are headline news all across Texas. That doesn't speak very well of the Texas State Bar Association, which has allowed Frank Mann to continue practicing law despite his repeated demonstration of a lack of respect for the rules of ethical conduct that attorneys are required by law to follow. The Texas State Bar Assocation web site contains all the details about its disciplinary actions against Frank Mann:

Frank E. Mann III
6750 West Loop Souoth #120
Bellaire, TX 77401
713-524-6868
License Number: 12924250
http://www.mannfamilylaw.com/

Texas State Bar Profile of Frank E. Mann III

Although the attorney for Nikki Araguz in the child custody lawsuit could surely file a motion with the court in that case to have Frank Mann removed as attorney for the ex-wife Heather Delgado, the damage is already done. Even though Frank Mann may have committed a conflict of interest violation, may have violated his attorney/client privilege with Nikki Araguz, and the Texas Bar Association could go after him, Frank Mann appears to have already succeeded in his role as the Judas whose unlawful disclosures instigated the legal firestorm that now surrounds Nikki Araguz.

Life for transsexual people seems truly perilous when transsexual people can't even depend on attorney/client privilege. It turns out that Frank Mann was secretly quite transphobic, and also tried to leak his privileged knowledge of Nikki Araguz's medical history before the election for Mayor Wharton, TX in May 2010, in which Nikki Araguz was a candidate. Nikki Araguz lost that election anyway, even though the information doesn't appear to have been made public at the time, and Nikki Araguz appears to have been ineligible to run for public office anyway, because she has a felony conviction on her criminal record. However, the most important revelation here is that Frank Mann appears to be someone who has no business practicing law, and is someone who may be primarily responsible for creating the leaks that have stirred up the mess that currently surrounds Nikki Araguz's life.

The twists and turns in the Nikki Araguz lawsuits just seem to keep on coming. It is hard to imagine what life must be like right now for Nikki Araguz, with nearly every aspect of her life virtually exploding around her. It seems like the average person would need anti-anxiety medication just to cope and be able to sleep at night.

Nikki Araguz, truth, and courts of law

2010-07-30T01:42:00.000-07:00

In a recent Houston Chronicle newspaper article, Nikki Araguz is quoted as saying she and her late husband perjured themselves in depositions that were taken as part of the child custody lawsuit her husband's ex-wife Heather Delgado filed against them before his death. In that newspaper article she was quoted as follows:

"That deposition is a lie," Nikki Araguz said from her Wharton home Monday night.

"At the time, Thomas and I thought it was in the best interest of our children to lie. They were the center of (our) lives," she said.

http://www.chron.com/disp/story.mpl/metropolitan/7125992.html

It seems apparent that Nikki Araguz and her late husband, Thomas Araguz, truly didn't understand the legal system and the potential consequences for committing that sort of obvious perjury in a legal proceeding. Such perjury, once discovered by the court, which she has now publicly admitted to, only provides Heather Delgado with the very evidence of poor character Delgado would need to claim that Nikki Araguz is an unfit custodial parent for Ms. Delgado's biological children. With that sort of evidence, Nikki Araguz has unwittingly given Heather Delgado the ability to avoid mentioning Nikki Araguz's irrelevant transsexual status at all in the child custody case, to instead focus on Nikki's criminal history and her perjury in the lawsuit itself as the basis for preventing Nikki from having contact with her step sons. In all likelihood though, it seems probable that the child custody lawsuit is a moot point at this juncture anyway. This is so because, unless Nikki Araguz had adopted the children prior to her husband's death, it seems probable that she lost any legal relationship to her step children, has probably lost standing (the ability to be a party) in the child custody lawsuit as a consequence of her husband's death, and therefore has probably lost any legal right to have contact with her two step sons, Trevor Araguz (age 9) and Tyler Araguz (age 7), anyway.

Heather Delgado lawsuit news conference - Thursday July 29, 2010

2010-07-30T00:56:00.000-07:00

Here is video from the latest news conference by Heather Delgado, the plaintiff against Nikki Araguz in the inheritance lawsuit filed by Delgado, who is attempting to prevent Nikki Araguz from inheriting the proceeds from the estate of her late husband Thomas Araguz. His estate includes fireman's death benefits with an apparent value of as much as $600,000, plus the proceeds of a life insurance policy he had which names Nikki Araguz as its beneficiary.

Clearly, this presentation by Fox News of excerpts from the news conference that Heather Delgado gave is heavily edited, and only contains short snippets of what was surely a much longer interview. The video is also intercut with segments from the video documentary of Nikki Araguz that was made over fifteen years ago. Consequently, the video above does not provide any sort of objective presentation of the information.

However, one point made by the news reporter, is that Heather Delgado doesn't have any explanation for her assertion that Thomas Araguz didn't know Nikki Araguz is a transsexual woman until just a few months ago. Such a claim clearly lacks credibility, and seems difficult for any reasonable person to believe, since Nikki Purdue (Araguz) married Thomas Araguz in August 2008, but she has stated in a video interview that she didn't have what was apparently sex reassignment surgery to create female genitalia for her until October 2008. It seems highly improbable that the two of them could have been living together during that time without Thomas Araguz being aware of the configuration of Nikki Araguz's genitalia and sex organs. As far as the legal issues in the probate/inheritance lawsuit are concerned, the timing of the surgery could become significant, since the date of the surgery implies that Nikki Araguz was morphologically male, i.e. she has male genitals, at the time she and Thomas Araguz were married, and only obtained female genitalia including a vagina months later. Such a fact pattern would undercut the defendant's ability to use an argument that once a transsexual woman has obtained a vagina as a consequent of surgery, she is physically and legally female, and therefore eligibly to marry, since it appears that Nikki (Purdue) Araguz may have had male genitalia at the time she married Thomas Araguz.

One point of speculation that certainly needs to be entertained, is whether or not Nikki Araguz had undergone an orchiectomy prior marrying Thomas Araguz, was able to obtain an affidavit fromm the orchiectomy surgeon that such surgery fulfilled the requirements of California law with regard to sex-reassignment, thereby enabling Nikki Araguz to obtain a female birth certificate from California, which she could then have used to obtain a Texas marriage license. Hopefully the plaintiff's attorneys will be astute enough and knowledgeable enough about transsexual medical treatment to ask such questions when they next depose Nikki Araguz.

Regardless, the war of emotional words, and the over simplified and obtuse claims made by both parties and their attorneys about the legal issues in the case mean little in comparison to what will and must transpire within the confines of court procedure, including upcoming depositions of the parties, and numerous subsequent court hearings. In this most recent video Heather Delgado attempts to place all the blame for what Heather described as "this mess" on Nikki Araguz, when the truth is that Heather Delgado could have avoided the mess she started by filing a lawsuit against Nikki, could have refrained from filing such a lawsuit, and could have accepted half of the $600,000 in fireman's benefits, and could have tried to work out a friendly agreement for support of the young boys. Instead, she has cast herself in the role of a Roman centurion, attempting to use her lawsuit against Nikki Araguz to nail Nikki to a proverbial crucifix, making Nikki a martyr for the cause of marriage rights for transsexual people. Hopefully, the district court in Wharton, Texas will take the case seriously enough to patiently obtain and hear all the facts in detail, regardless of the judgments it renders as a consequence of those facts and the current state of Texas law. In any event, it is very sad indeed that Texas law allows this Nikki Araguz's entire life to be invaded in the service of this sort of oppressive witch hunt against her.

Perspectives on the Prospects for Nikki Araguz

2010-07-29T21:07:00.000-07:00

Based on a cursory perusal of articles and commentary around the internet, a significant percentage of the transsexual population has reacted primarily emotionally, with indignation, and outright anger, about the lawsuits against Nikki Araguz. Many such people have bristled in response to the detailed information that has been published regarding Nikki Araguz, preferring instead, to believe that somehow mere righteousness might win the day in the face of a hostile Texas culture, presumably bigoted Texas judges, and a Texas judiciary whose appeals court decisions have already stacked the deck against Ms. Araguz. Various transsexual activists have focused on the lurid nature of the television and press coverage, reacting with anger and outrage. For example, on facebook.com, the vivacious and valiant Ashley Love shared the following comment:

The media keeps on spreading misinformation about this case. Their offensive and innaccurate misreporting must be called out in order to aide the transsexual, transgender and intersex communities.

http://www.facebook.com/loveashleylove

Ms. Love's comment is correct that nearly every news article has been slanted, misleading, inaccurate, often offensive, and designed to generate negative public sentiment toward Nikki Araguz. However, Ms. Love's statement doesn't identify any of this purported misinformation specifcally.

In fact, much of the core information published by the media, in the midst of its salacious approach to it, has been factual: statements from Nikki Araguz herself, video interviews with Nikki Araguz herself - including a video documentary of her from over fifteen years ago that is quite extensive, Nikki's own admission of perjury during an April deposition she gave, Nikki's own admission and her own apology for appearing on the Jerry Springer Show in 1994 in which she used that television program to blindside someone she had dated by disclosing her transsexual status to him on the program, the details of Nikki's criminal history which includes multiple felony convictions, court records that include her 1996 name change petition, and more. The problem isn't about the truth or falsehood of the media disclosures, the problem is their lack of relevance and the scurrilously misrepresentative nature of them, since few if any of them are actually relevant within the lawsuit itself.

While some people contend that some of this information is purely about Nikki Araguz's character and credibility, and irrelevant to the central legal issues in the probate case, this sort of character information seems likely to have a significant impact on Nikki's ability to testify on her own behalf in any future deposition and in any trial that may occur, especially her public admission of perjury. Admittedly though, if her case were to stand any chance at trial, it would be the quality of expensive medical expert witness testimony that would form the core of a trial court record for future consideration by an appeals court that seems likely to be most important to her case. However, the plaintiffs, Heather Delgado and Simona Longoria, seem quite likely to focus on Nikki's character to attack the validity of her marriage, including admissions of perjury, deception, criminal convictions, and her equivocation and attempts to prevaricate about the specifics of her medical history, and the sequence of events, including the surgery she received in 2008, that surround her two marriages.

Based on her own recent internet posts, Nikki Araguz appears to be in psychological denial about the impact of her own extensive public statements, and about the potential consequences of the factual information that has come to light about her, most of which seems irrefutable. I suspect she is likely to be bolstered by a segment of the transsexual population, and others who will support her in her cause, no matter how seemingly insurmountable the odds against her. In addition, she has a legal team that is apparently ready and willing to wage legal battle for her no matter what, possibly even pro-bono without charging her a fee and while incurring massive expenses for expert witness testimony, as part of a larger legal crusade for marriage rights regarding transsexual people. On the one hand it seems appropriate to wish them good luck, but on the other it also seems appropriate to be realistic about the lack of likelihood that they could prevail against such overwhelming odds.

nikki araguz 1994 student video documentary

2010-07-29T17:00:00.000-07:00

Here are clips from the video documentary that was made of Nikki Araguz in the mid 1990s when she was apparently about twenty years old and attending college. The Fox News television station in Houston, TX was apparently approached by the videographer who made the documentary and purchased the exclusive rights to broadcast the video. In the excerpts from the much longer video that were presented by the Houston, TX Fox News television station, Nikki expresses what seems like relatively classic transsexual self perceptions, including her college aged determination to living an all female life at that time.

[part one]

[part two]

[part three]

(please note that Fox News keeps changing the link information for these videos, so they may no longer contain the correct segments of the three video segments)

Although fox news has inter cut the documentary of Nikki Araguz made during her college years with their own editorialized commentary, much of the contents of the documentary do seem to provide insights into her thought processes and well as clear evidence of the structure of her life when the documentary was made. The video documentary also seems to provide excellent evidence of the fact that Nikki Araguz was apparently born with Androgen Insensitivity Syndrome, a condition that causes the human body to develop as female despite having an XY sex chromosome pair, (see references below).

http://ghr.nlm.nih.gov/condition/androgen-insensitivity-syndrome

http://en.wikipedia.org/wiki/Androgen_insensitivity_syndrome

https://health.google.com/health/ref/Androgen+insensitivity+syndrome

What to expect next in the Nikki Araguz case

2010-07-29T05:35:00.000-07:00

The present stage of the proceedings in the child custody lawsuit filed against Nikki Araguz by her late husband's ex-wife Heather Delgado hasn't been reported about much in the news. However, it seems apparent that the case is in some stage of discovery (evidence gathering). Given the death of one of the parties, it seems like either or both sides may file various motions with regard to the status of the parties that may impact the resolution of the case. For example, it may be that Nikki Araguz never formally adopted her step sons, so the death of her husband might end her legal relationship to them, voiding her standing in that lawsuit, and rendering her efforts to maintain contact with them moot and unattainable.

The estate/inheritance lawsuit filed against against Nikki Araguz by her late husband's mother, Simona Rodriguez Longoria, and ex-wife, Heather Delgado, appears to have just begun though, with a summons and petition/complaint having been filed and served, along with a motion by the plaintiffs for a temporary restraining order (TRO) and motion for expedited show cause hearing. The show cause hearing for the temporary restraining order took place on Friday July 23 2010 at the Wharton County courthouse in Texas. The judge granted the TRO and froze the assets of Thomas Araguz, including fireman's death benefits, life insurance, and so on, prohibiting both parties from accessing, spending, transferring, and otherwise doing anything with them until the final outcome of the lawsuit.

The next steps seem likely to come from the Nikki Araguz's legal defense team. It seems like a truly vigorous defense team would likely have spent the weekend and the additional days since the Friday hearing gathering their own evidence from their client and determining their options. However, I can't help but suspect that the defense may likely have been blindsided by the flood of seemingly irrefutable character evidence that the press and media have disclosed about Nikki Araguz, evidence that implies she may have had a hard time providing full disclosure to her own attorneys as well.

Under normal circumstances in such a civil lawsuit, there would likely be two potential next steps: either a defense motion to attack the legality of one or more plaintiff claims, or the filing of an answer. In most jurisdictions, motions regarding the legality of a plaintiff's standing and/or claims must precede filing an answer (1).

In this case, the defense might want to challenge the standing (i.e. legal ability of a party to sue) of Simona Rodriguez Longoria, Thomas Araguz's mother. The ex-wife of Thomas Araguz, Heather Delgado, probably has standing because she is the guardian of their biological children, who are the actual parties to the lawsuit, but who cannot act for themselves because they are minors.

Although most states have court rules patterned after the federal court rules system, there are some states that are notable exceptions; California, Michigan, and New York being a few of them. Texas is also a state with its own idiosyncratic rules system, although a careful reading of them reveals analogues with the federal style rules used by the majority of states.

(Texas Court Rules of Civil Procedure)
http://www.supreme.courts.state.tx.us/rules/TRCP/RCP_all.pdf

If the defense doesn't file a motion to challenge the legal effectiveness of the plaintiff's complaint/petition, then the defense will need to file an answer. Usually, answers are primarily paragraph by paragraph denials of the claims made by the plaintiff, plus "affirmative defenses" if appropriate, and sometimes one or more counterclaims against the plaintiff. Notwithstanding the sort of motions described above, it is usually worthwhile to simply file a total denial answer quickly and then move on the discovery phase of the case.

Based on a quick perusal of information on the Texas judiciary, the Texas court system seems somewhat behind the times technologically and in terms of the changes to litigation practice that often come with it. For example, I can't find any evidence that Texas has implemented a comprehensive digital docketing and electronic court records and electronic filing system. The federal courts, and the more technologically savvy states have been moving toward digitizing all court record keeping. The federal courts seem to be one of the furthest along with the effort, with all its dockets online, all pleadings available online in PDF form, and all document filing done via the web with secure SSL login and digital signatures. In such states, fewer and fewer face to face court motion hearings are entertained by courts, and lawsuits often progress without the parties physically appearing in court for months at a time. However, most courts still require a face to face hearing to "show cause" for a temporary restraining order of the sort obtained in this case, so Friday's mob scene outside the courthouse was probably unavoidable. What is unfortunate though, is that since Texas doesn't appear to have electronic court records, it would be more difficult to get copies of the pleadings and motions files with the court by the parties to share on sites like this one. Hopefully, some entity like justia.com will get interested in the case, have someone go to the courthouse and get copies of the filings, and publish them on their web site, which is something justia.com does for many cases of interest.

Then comes the discovery phase, during which the parties gather evidence. The Texas court rules have a reasonably detailed set of standards for discovery that are pretty similar to what occurs in most states. Based on a quick perusal of the Texas court rules, they limit depositions to a total fifty hours, and provide for about nine total months of discovery, which is actually relatively short. Discovery allows the parties to submit written questions to each other, to request each other to produce documents and other tangible evidence, to take depositions of witnesses, including the opposing party or parties, and to subpoena evidence from people who are not parties. I would expect the plaintiffs to subpoena copies of the various television and other video interviews that Nikki Araguz has given, so that the plaintiff can use the contents of them to impeach the credibility of her deposition testimony if she deviates in any way from her previous statements. I suspect that the video documentary made about her in 1994 will become significant evidence of her personal and medical history.

Given the nature of this case, I would also expect the plaintiffs to file a motion for an order under Texas court rule of civil procedure 204, specifically 204(c)(1) (pages 147-148 in pdf document linked above), for one or more physical/medical examinations of Nikki Araguz, possibly including DNA analysis, abdominal MRI scan, abdominal ultrasound, and other investigative medical tools, in addition to a general physical examination, in order to have one or more medical expert witnesses testify with regard to Nikki Araguz's physical morphology, sex chromosomes, evidence of genital surgery, presence of internal sex specific organs if any (including a possible prostate and seminal vesicles), and so on. The defense would need to do the same and spare no expense on expert witnesses, whose costs alone could run in the hundreds of thousands of dollars including the cost to write reports and provide testimony at trial. Given the personally invasive nature of this potential medical scrutiny, if I were such a party to such a lawsuit, I would have to consider that long and hard. If this case were to go to trial, every intimate detail of Nikki Araguz's medical history and medical condition could become public record, with television stations all over Texas leering in, and reporting every lurid detail.

Given all that has transpired in just a few days, I suspect, that as discovery proceeds, information about the evidence gathered will be leaked to the media by either or both sides, enabling the public to be kept up to date on some of the inner workings of the case. Given the level of pugnaciousness exhibited by the parties, I suspect there may also be a variety of other motions filed and hearings held, to mediate the likely contentious nature of the proceedings. After adequate discovery, I would expect the plaintiffs to move for summary judgment (judgment by the court without trial), based on the contents of Nikki Araguz's own voluminous admissions and future deposition testimony, and using Littleton v. Prang as controlling law to annul her marriage, declare her legally male, determine she committed fraud, and order that all of Thomas Araguz's estate go to his children.

However, given the totality of what has transpired in the press/media thus far, it is hard for me to imagine that even Phyllis Frye would want to use this case as her crusade test case to challenge Texas marriage law, and go all the way through a trial and appeals with it, which would require years of effort and enormous expense. Consequently, I suspect that at some point the parties are likely to announce a settlement. I personally have the impression that a quick settlement in this case, that gives most or all of the money to the kids and dismisses all the claims without assignment of judgment or blame, is in the best interest of Nikki Araguz, of her late husband, and most importantly, her late husband's children, with the possibly that a trust could be controlled by an independent trustee so that the kids' trailer trash mom wouldn't be able to blow the cash, since $600,000 is enough for private school now and tuition at quality private universities for the children later. Such a settlement would at least enable the existence of her marriage to remain intact, which may have some intangible but worthy value with regard to her personal dignity. To me, that might make it worth reaching a settlement, unless the pugnacious plaintiffs demand a stipulated annulment of the marriage as part of a settlement, which could also include a confidentiality clause that would prevent the husband's family and the attorneys from continuing to verbally assault her.

references

(1) Although Texas uses its own rules system, most law schools primarily use the federal rules for teaching and most states follow the federal rules nomenclature. Consequently, a review of Federal Rule 12 provides some background on motions that challenge a plaintiff's claims, standing, or jurisdiction:

http://www.law.cornell.edu/rules/frcp/Rule12.htm

http://www.law.cornell.edu/rules/frcp/ACRule12.htm

http://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure

Some sociological observations about the case against Nikki Araguz

2010-07-29T05:03:00.000-07:00

Although its been forty or fifty years since transsexual people began to be the subject of news stories, I couldn't help notice when watching videos online of the television news coverage in Texas about Nikki Araguz, that the news reporters behaved as though the existence of a transsexual woman was like the arrival of an extraterrestrial being from a distant galaxy.

One of the more bizarre and not so subtle ironies of this, is that on multiple channels I noticed the news reporters make inquiries about "how can she be so feminine?", her level of femininity having confounded their ability to comprehend her genuine and undeniable female nature. Although Nikki Araguz hasn't made any direct statements on the subject of her own femininity, it is apparent from the videos that were made of her when she was only nineteen or twenty, that she must have already been taking estrogen before then, and that she was likely able to start HRT before she developed facial hair.

The fact is, there are thousands of transsexual women who have started HRT at some point in their teens, who have been able to start HRT before testosterone could ravage their bodies, whose adult female bodies are just plain normal and within female norms and averages. Over the past twenty years there have also been numerous transsexual-girls whose parents have allowed them to begin HRT in their early teens with even more remarkable results. The television news reporters just seemed subtly dumbfounded by the implications of this, apparently without their being aware of the existence of early HRT, and without being able to understand or specifically verbalize their confusion. However, on multiple television stations, reporters have repeatedly asked questions of Nikki Araguz with the intend to figure out how this is possible, although they were completely reluctant to come right out and ask straightforward medical questions about the subject.

Nikki Araguz didn't help them either, because in every interview with the television news reporters she seemed like she was trying to deny that she is transsexual. It is difficult to imagine how Nikki Araguz thought she could hide her past, given available information like: the fifteen year old video documentary that has surfaced, her now published district court name change petition, her 1994 Jerry Springer appearances, and so on, in which she publicly admitted being a transsexual-woman.

What is most sad though, is that Texas culture is such that the media and press there see fit to implement a witch hunt against Nikki Araguz, attacking her character and credibility from every angle they can discover. Traditionally, it seems like the media reserves such treatment only for high profile criminals. It is equally unfortunate for Nikki Araguz that her lack of judgment over the years has produced such a wealth of material for the media to exploit, and which has kept the news media in Texas excited and in pursuit of each new salacious morsel they uncover, eager to share them with their ratings boosting public. Nikki Araguz has become a public political football within a social agenda maintained by the Texas press and media, and seemingly in the service of Frank Mann and Chad Ellis, the disreputable attorneys for the plaintiff Heather Delgado, whose underlying purpose is to portray all transsexual people as somehow fundamentally deceptive and dishonest.

Nikki Araguz's name change petition and California birth certificate change

2010-07-28T18:34:00.000-07:00

Numerous people have raised questions about the identity of Nikki Araguz, and about her ability to have changed her name, to have obtained a female birth certificate with which to marry in Texas, and other questions about various aspects of her background. I have located an online copy of her application for change of name. In contains answers to numerous questions.

Nikki filed a name change petition, representing herself pro se, on February 9, 1996 in Houston, TX. In the name change petition she requested to change her name from:

Justin Purdue

to:

Nikki Paige Purdue

Her later name change to Nikki Araguz occurred as a result of her marriage to Thomas Araguz in 2008. However, from 1999 to 2007 she used the name Nikki Purdue-Mata, when she was married to a man named Emilio Mata who she divorced in 2007.

In the section for name change reason, her petition states:

I, Justin Purdue, am a woman with male anatomy, working toward a sex change. I have been living and working as a woman for over one year and seek to make my new name legal and permanent.

(source - name change petition)
http://images.bimedia.net/documents/whartonpdf.pdf

Elsewhere in the name change petition at the link above, it states that Nikki was born in Carmel, California on June 4, 1975. This is significant because the California birth place accounts for Nikki's ability to have obtained a new, female, birth certificate at some point. According to the information on the "Dr. Becky" web site, California is one of various states that issues new clean birth certificates to transsexual people after they have had surgery and are able to present appropriate documentation of that fact to the state of California. The following site contains detailed information about the process:

http://www.drbecky.com/birthcert.html

nikki araguz appeared on the jerry springer show

2010-07-28T12:00:00.000-07:00

Just when it didn't seem like the Nikki Araguz saga could get much more wacky, she has now admitted to having appeared on the Jerry Springer Show multiple times, and described herself as having been "deceptive" before and during her appearances. Here are some excerpts from the latest Houston Chronicle news article with the details, including statements from Nikki Araguz herself:

The transgender widow at the center of a court battle focusing on her late firefighter husband's estate apologized Tuesday for her appearance on a tabloid talk show 15 years ago during which she surprised a man who once kissed her with the news that she was born a boy.

Nikki Araguz, 35, expressed deep regret for not telling the man the truth about her gender history upfront and for surprising him with the news during her appearance on the Jerry Springer TV show on Feb. 13, 1995, calling it a mistake she made as an inexperienced teenager. She confirmed her appearance on the show after being questioned by the Chronicle.

"It was a horrible experience for everyone involved," Araguz said Tuesday of the TV show. Of the man who appeared on the program with her, she said, "I need to publicly apologize to him for any embarrassment or any situation I put him in. I am truly sorry for any problems and pain that it caused him then. ... It was something I felt terrible about for a long time."

The man who appeared on the Jerry Springer show with Nikki Araguz in 1995 spoke to the Chronicle only on the condition that his name not be published because he said the embarrassment could hurt his employment.

Now 39 and living in Beaumont, he said he was upset by Nikki Araguz's deception 15 years ago and speaking now only out of concern for the late firefighter's children.

The man said he was a 24-year-old University of Texas student in Austin when he came to Houston for a rock concert in November 1994. After the show, he met Nikki Araguz by chance while she was dining at a Houston restaurant.

He said they visited for several hours, kissed and exchanged phone numbers but never had sexual contact.

The man said he had no communication with her until the Jerry Springer show called him two months later, asking him to appear on the TV show in Chicago to hear some news from a woman from his past. He said the show's staff refused to identify the woman.

"I was a poor student back then," he recalled Tuesday. "I thought, 'Chicago, cool.' They flew me in."

While he was on the show, Nikki Araguz appeared and told him she was born a boy. Her demeanor "was almost like tongue in cheek, not remorseful," he recalled.

The man said he kept his cool but chastised Nikki Araguz on camera for being deceitful. The two of them never had contact again.

Araguz, who was 19 at the time of the incident and received $500 for her appearance on the TV show, called it a mistake.

"Just me being deceptive, appearing at all deceptive, was wrong," she said Tuesday. "It was a big lesson to be honest and upfront."

She said that error does not reflect how she has lived her life since then, insisting she was honest with her first husband of 11 years, whom she later divorced, and made full disclosure about her gender history to Thomas Araguz as well.

"Upfront honesty is the best policy," she said Tuesday. "I never ever did anything like that again. That's not my current character or moral standard."

Araguz said she appeared on four other TV talk shows — two more episodes of Jerry Springer, once on Maury Povich and once on Sally Jessy Raphael — in 1994 and 1995, all focusing on gender issues. Her mother appeared with her on two of the shows.

"I haven't hidden my gender from anybody — hello, I was on five national talk shows. I was not hiding it at all. ... Just because nobody else knew doesn't mean my husband and our close friends did not know."

(source of three quotes above)
http://www.chron.com/disp/story.mpl/metropolitan/7127607.html

It is just amazing to me that the attorneys for Nikki Araguz have allowed her to keeping talking to the news media. It seems like every other sentence she utters hurts her position in the lawsuits against her more and more. In addition, her own admissions and disclosures about herself compound the inconsistencies in her various statements.

This most recent newspaper article also clarifies that the date of Nikki Araguz's previously reported "operation" was October 2008, months after her August 2008 marriage to Thomas Araguz. Although such things have happened before, it seems difficult that anyone could claim Thomas Araguz wasn't aware of the configuration of Nikki Araguz's genitalia during that time, what ever their configuration was then, and however her physical morphology changed before and after whatever physical changes that October 2008 "operation" accomplished.

emilio mata - nikki araguz's first husband

2010-07-27T23:36:00.000-07:00

When the news first broke about the probate/inheritance lawsuit against Nikki Araguz that was filed by her late husband's ex wife Heather Delgado, there were reports that Nikki Araguz had been married to another man before before she married Thomas Araguz. However, nearly every one of the newspaper reports that included mention of the 1999 marriage between Nikki Araguz and Emilio Mata, who she divorced in 2007, has removed mention of Mr. Mata's name from them. It seems like the major news media wants to avoid discussing the existence of this previous marriage, and are possibly unwilling to ask Mr. Mata questions about his relationship with Nikki out of fear of creating what they may believe would be embarrassment for a secondary figure in the matter. There is of course the possibility that Mr. Mata has contacted various media outlets and asked them to remove him from their written reports, and to refrain from getting him involved. Even if that were true, its amazing that a media outlet would honor a request from that individual, at the same time they have made every effort imaginable to hunt down every private detail of Nikki Araguz's life that they have been able to discover, and to report about all of it in detail.

One has to wonder though, whether or not one of the parties to the probate lawsuit against Nikki Araguz, might be interested in making Emilio Mata a witness in their case. At a minimum it seems like Mr. Mata would be aware of the physical morphology of Nikki's genitalia during the period of time between 1999 and 2007. Parenthetically, the news media doesn't appear to have uncovered many details about the nature of the all important October 2008 surgery that Nikki Araguz received. Information published by people representing Nikki has reported that Nikki Araguz received genital reconstruction surgery from Marci Bowers, MD in Trinidad, Colorado on October 7, 2008, a couple months after her marriage to Thomas Araguz. However, based on the Littleton v. Prange decision, the state of Nikki's genitals may be considered irrelevant by the court, since the court in the Littleton case made its absurd judgement purely on the presumed, but never medically verified, chromosomal status of Christie Littleton. Surely the discovery process is likely to reveal whether or not one of the parties is interested in Emilio Mata, in deposing him and/or calling him as a witness if the case ever gets to a trial. If one of the parties subpoenas him to give deposition testimony, it will surely be interesting to find out what questions they ask him.

child custody lawsuit deposition revelations

2010-07-27T18:51:00.000-07:00

Additional information about the legal ordeal unfolding around Nikki Araguz was published by the Houston Chronicle newspaper on Monday. It turns out that before the present probate/inheritance lawsuit was filed by the ex-wife Heather Delgado, Nikki Araguz and her late husband were already involved in a child custody lawsuit filed against them by her. Most often, the adversaries of transsexual people in child custody lawsuits try to convince courts that merely being a transsexual-person makes the transsexual parent a "danger" to the children and an "unfit" parent. All too often they succeed unfortunately, with many transsexual parents losing touch with their children, often for no other reason than the fact that the financial burden alone of trying to wage such legal battles can be insurmountable. In the child custody case against Tom Araguz and Nikki Araguz, his ex-wife seems likely to be using Nikki's criminal history has leverage as well.

Among the significant news items reported regarding the Araguz child custody case, is that Thomas Araguz and Nikki Araguz both gave depositions in that case during April 2010, before his July death. These days depositions are often recorded on video in addition to being transcribed by a licensed court reporter, meaning that both the written transcripts and the videos could be presented at any future trial(s). Most importantly, Nikki Araguz has now admitted that both she and her late husband perjured themselves during their depositions in that case, under the misguided belief that doing so was in the best interests of the children. I would imagine that there are likely to be multiple dire consequences for Nikki Araguz that will result from the lies she told in that deposition. It seems apparent already that she isn't likely to have any future contact with her step-sons in any event. Here are some deposition excerpts reported by the Houston Chronicle:

(quotations from the deposition in the same newspaper article)

The depositions were taken in April for a child custody case filed by Thomas Araguz's ex-wife, who did not want their two young sons around Nikki Araguz, attorneys said.

[...]

"That deposition is a lie," Nikki Araguz said from her Wharton home Monday night.
"At the time, Thomas and I thought it was in the best interest of our children to lie. They were the center of (our) lives," she said.

(source)
http://www.chron.com/disp/story.mpl/metropolitan/7125992.html

"Do you know that your wife was formerly a male?" asked Frank Mann III, a Bellaire attorney representing Thomas Araguz's ex-wife and the mother of his children, according to the deposition transcript.

"No," Araguz responded.
"You have no knowledge of that?" Mann asked the firefighter.
"I have no knowledge," Araguz responded.

During another part of the inquiry focusing on Nikki Araguz, Mann asked her husband, "Would it surprise you if it said male on her birth certificate?"

"Yes," Thomas Araguz responded.
"When did you first tell your husband about the fact that you had that prior name?" Mann asked Nikki Araguz during her deposition.
"I don't recall ever discussing that with him, to be honest with you," she responded.

(source)
http://www.chron.com/disp/story.mpl/metropolitan/7125992.html

Because Nikki Araguz has admitted to lying during the deposition in the child custody case, attorneys for the opposition against she and her husband in that case could file a motion to have the court find her in contempt, for which the usual penalties in civil cases can include monetary fines and rarely even short jail sentences, which a judge in such a case can order forthwith without addition due process or hearing. When such a fine is imposed, often as much as $500 to $5,000, it becomes a court judgment that if unpaid becomes a blemish on one's credit history, and for which the holder of the judgment can execute using writs of seizure and foreclosure.

What seems far worse for Nikki Araguz, is that her admission of perjury makes it nearly impossible for her to give future deposition testimony, because every time she does, every attorney doing so is sure to bring up her previous perjury, and do everything possible to characterize her as a pathological liar, about whom little she says should be believed. I can't imagine how either of the lawsuits Nikki Araguz is involved in can move forward successfully now, after her admission of perjury, especially when juxtaposed with the other layers of character evidence against her, which together seem to destroy her ability to function as a credible party in either lawsuit. Because of this, it seems like the attorneys for Nikki Araguz are going to have to focus on developing and presenting evidence in the form of documents that corroborate the facts and other witnesses without a direct interest in the outcome of the lawsuit. Hopefully the attorneys for Nikki Araguz will also find ways to keep the lawsuit focused on the relevant factual, medical, and legal evidence and issues, and work hard to avoid bringing the character of either party into the matter as much as possible.

extended video interview with Nikki Araguz

2010-07-27T05:07:00.000-07:00

Here is an extended interview with Nikki Araguz, from the ABC station in Houston, TX.

During the video interview above with Nikki Araguz, she provides a variety of information about herself. She makes every effort during the interview to prevaricate around the news reporter's attempts to ask her certain direct questions. She is clearly not someone trained in the media savvy art of verbal evasion practiced by politicians though. Some of the statements she makes in this interview seem to contradict statements she has made in previous and subsequent interviews as well. However, she comes across as mature, emotionally present and connected, and lucid, although with an appropriate level of defensiveness, given the sorts of probing performed by the television news reporter questioning her in the video. This is a woman vastly evolved from the flighty teenager in the video documentary made of her over fifteen years ago.

Plaintiff's attorney Chad Ellis - Claims about the case

2010-07-25T16:42:00.000-07:00

Chad Ellis, attorney for Heather Delgado and Simona Longoria of Nikki Araguz's late husband's family, claims that Thomas Araguz did not know about his wife Nikki's medical history until April 2010, that he was shocked, had informally separated from Nikki before his death, and that he was in the process of having the marriage annulled before his accidental death on July 3, 2010.

Meanwhile, Fox News 26 in Houston, TX has described Nikki Araguz as someone with a criminal history comprised of petty theft, DWI, and drug posession convictions. The following link includes video of the statements by Chad Ellis and the "prior bad acts" allegations against Nikki Araguz, including the usual mug shot. In the legal business, this is known as "dirtying" a party, so that the court views that party less favorably, even though the history may be unrelated to the current situation and matters at issue. Such a history could be used against Nikki in court as evidence of poor character under court rules - usually called rule 404(b) in jurisdictions that use federal style rule numbering. Here is the link that includes the Fox News interview with attorney Chad Ellis and information about Nikki's name change and birth certificate.

The same Fox news station obtained a video of Nikki Araguz at about age 25, about ten years ago, in which she makes classic ts disclosure statements - see the link below:

http://www.huffingtonpost.com/2010/07/20/nikki-araguz-transgender_n_653129.html

In any event, it seems like Nikki Araguz doesn't stand a chance against Texas culture, or against the Littleton v. Prange ruling. In addition, her attorneys should have known better than to have her talk too much in public, even though it is only her court testimony, depositions, affidavits, and supporting evidence that count, like marriage certificate date, vaginoplasty surgery affidavit and date if she has one, and so on, to provide evidence the court might rely upon. That her attorneys had her speak, rather than speaking for her, is evidence of poor legal representation, IMO. Furthermore, the video that includes her own ten year old statements about herself can be used in court as evidence against her too. Altogether, the evidence looks very bad for her case given Texas law and culture.

What we need to hope for most, is that this case never gets into any appeals courts. This is important, because if this issue ever gets to a jurisdiction in the U.S. that is actually favorable, since it will be an issue of "first impression"(term of art) in that other yet to have occurred other "friendly" state, under the law the court in that state will need to take notice of the decisions in states like Texas, Florida, and Kansas, when considering such a case of first impression in the absence of other settled U.S. law. However, such a court would also be able to hear the matter de novo, and consider scientific expert witness testimony and so on. I imagine that appropriate expert witness testimony would reveal that chromosomes are not the ultimate determinant of sex status, and that the only reasonable legal standard is a physiologically/genital standard.

The most ridiculous aspect of the court's ruling in the Littleton v. Prange case is that the appeals court made its ruling purely on presumption, and the presence of a birth certificate, without ever having requested or having been presented with evidence of the Christie Littleton's chromosomal status.

Right now, it seems like the only states that have a chance of being "friendly" with regard to establishing the legal status of ts-people after surgery are Illinois and Michigan, because those are the only two states I know of that have statutes on the books that provide for providing a new/fresh/clean birth certificate after surgery and submission of a surgeon's affidavit to a court. If there are any other states with actual statutes it would be nice to know about them and get links to them, but I have not been able to locate them in any other states after searching their statute databases. Most states that make any sort of changes to birth certificates seem to do them by adding a footnote onto the bottom of them indicating that the sex was changed, but leaving original designation intact as well, calling it can "amendment", and one that makes the birth certificate forever out the person as ts.

I hope Nikki Araguz is at least able to maintain her personal safety. That may be all she has left when this debacle is over.

Nikki Araguz - press conference after the show cause hearing Friday July 23, 2010

2010-07-24T21:42:00.000-07:00

Here is the press conference that was given by Nikki Araguz and her attorneys, including Phyllis Frye, on Friday July 23, 2010, outside the county courthouse in Wharton, TX.

Nikki Araguz - Temporary Restraining Order - Show Cause Hearing Friday July 23, 2010

2010-07-24T15:55:00.000-07:00

Apparently things were so ugly for Nikki Araguz as she arrived at the courthouse on Friday July 23, 2010, that she was greeted by a jeering crowd and with threats against her life as she entered the Wharton County Courthouse in Wharton, Texas. The judge in the case apparently ruled against Araguz and issued a temporary restraining order that places all her marital assets, bank accounts, real property, life insurance proceeds from her husband's estate, $600,000 in fireman's death benefits from her husband's estate as well, into escrow, freezing all her assets pending the outcome of the case. Fortunately, the court also ruled that her late husband's family cannot access, use, or spend the proceeds either, until the final outcome of the case has been determined by the court, subsequent to a trial of summary judgment proceeding. Some news accounts imply that Nikki Araguz's bank accounts have even been frozen and that she may have been evicted from the house she may have owned with her husband.

Nikki Araguz apparently also testified at the court hearing. In response family members of her late husband accused her of being a liar and a fraud. If that were true, where were those family members during the two years she was married?

Based on today's news accounts, the viciousness seemed extreme, which seems to be the case in nearly all such proceedings when a ts-person is involved. In this case the court proceedings may have even made it nearly impossible for her to even litigate what is likely to be losing case anyway.

While I empathize with the hell that Nikki Araguz is going through, it seems like every ts-woman should know by now that it is simply impossible to get married in Texas to a male person, and to live in Texas while married to a male person, and expect anything else to occur. The result of the Littleton v. Prange case has pretty much made it settled law in Texas that Araguz does not stand a chance, and she seems likely to be stripped of everything she owns and likely left unable to even wage a court battle for her financial survival. Her attorneys are soliciting donations.

I hope this serves as a cautionary tale for any ts-woman currently living in Texas, that it was time to leave that state a long time ago. Texas seems like a hostile and probably even life threatening environment for ts-people. If you are a ts-woman and you live in Texas, I hope you will get out before it is too late for you too. One article characterized the the proceedings in the following manner:

Houston, Texas – July 23, 2010 – Jeers and public threats greeted Mrs. Nikki Araguz outside the Warton County Courthouse today. The Widow of Wharton County firefighter Captain Thomas Araguz, who was killed in the line of duty, was in court for the first hearing in a suit brought by Araguz’s mother, Simona Rodriguez Longoria. The suit claims that Longoria should inherit Capt. Araguz’s widow’s benefits and all marital assets.

Longoria claims that since Mrs. Araguz was legally a male before transitioning to female, and legally changed her gender prior to her subsequent marriage to Capt. Araguz that Longoria, not Mrs. Araguz, should receive all benefits and joint property. This includes any income earned by Mrs. Araguz during the marriage. Mrs. Araguz was the principle wage earner of the couple.

Capt. Araguz’s two children from a previous marriage will receive one half of Capt. Araguz’s $600,000 firemen’s fallen hero benefit regardless of the outcome of this case. They are also entitled to free tuition at Texas State Schools, as will be their children.

Longoria today expanded her claims to the property of Mrs. Araguz, asking the court to seize funds paid by a life insurance policy to which Mrs. Araguz was the named beneficiary. Judge Clapp granted her request, adding those funds to the widow’s benefits and all marital assets currently being held in escrow.

In a victory for Mrs. Araguz, the Judge also prevented Longoria from spending any of those funds or disposing of Capt. and Mrs. Araguz’s marital assets.

Longoria said in court today that her goal was to “freeze Nikki out.” All of Mrs. Araguz’s assets are currently frozen and unavailable to her.

http://www.tgctr.org/2010/07/24/nikki_araguz/

The associated press shared the perspective and comments of Chad Ellis, attorney for Simona Longoria, mother of Thomas Araguz, the late husband of Nikki Araguz:

Chad Ellis (attorney for mom of late husband) said his client's efforts to void the marriage are supported by Texas law, specifically a 1999 appeals court ruling that stated chromosomes, not genitals, determine gender.

The ruling upheld a lower court's decision that threw out a wrongful death lawsuit filed by a San Antonio woman, Christie Lee Cavazos Littleton, after her husband's death. The court said that although Littleton had undergone a sex-change operation, she was actually a man, based on her original birth certificate, and therefore her marriage, as well as her wrongful death claim, was invalid.

"The law is clear, you are what you are born as," Ellis said.

While Phyllis Frye, one of Nikki Araguz's attorneys, declined to comment on what role the 1999 appellate ruling will play in her client's case, she said the decision "wrecked a lot of lives."

In April, Texas Attorney General Greg Abbott's office was asked to give a legal opinion in a separate case on an issue connected to the 1999 ruling.

El Paso County Attorney Jo Anne Bernal asked for an opinion on whether the county clerk's office could issue a marriage license to two West Texas women if one of the women, who had previously undergone a sex change, presented a birth certificate that identified her as being born a man.

The West Texas couple didn't wait and went to San Antonio, where Bexar County officials granted them a marriage license, saying they relied on the 1999 ruling. Bexar County has previously issued marriage licenses in similar

http://www.google.com/hostednews/ap/article/ALeqM5jrzXKWu9Gae4Cf_ieESFugNEVJiQD9H4DN9O0

Nikki Araguz - Inheritance Lawsuit filed Against Her

2010-07-22T14:51:00.000-07:00

A woman named Nikki Araguz, who apparently lives in Wharton, Texas near Houston, is being sued by her late husband's ex-wife, Heather Delgado, and his mother, Simona Rodriguez Longoria, to prevent Nikki from collecting death/survivor benefits, life insurance benefits, and other proceeds from her late fireman husband's estate. His family is claiming that Nikki's marriage is void because she is a transsexual woman. The suit against Nikki Araguz by her husband's family is doubly vicious because they have accused her of civil fraud against her late husband, claiming that her late husband did not know she is a post-vaginoplasty transsexual woman. Mrs. Araguz states that her late husband, Thomas Araguz, knew that she is a transsexual woman and that she is horrified by his family's allegations and their lawsuit against her (see video just below).

http://www.chron.com/video/?207639551001

This sort of lawsuit must surely send a chill through the entire transsexual population. One of the new twists in this lawsuit is that the transsexual-woman is the defendant. These plaintiffs have also induced a new level of viciousness into their suit against this transsexual-woman, by claiming she committed fraud by marrying her late husband, in addition to mis-characterizing her marriage as "same sex", although that may be legally accurate in Texas where all transsexual women have been declared legally male by the Texas Court of Appeals as a result of the court's decision in the Littleton v. Prange case. The multiple levels of consequences caused by these sorts of lawsuits do so much damage that it is hard to list all the forms damage they create or calculate their potential magnitude.

As the defendant, she certainly can't be blamed for getting involved in a lawsuit in a jurisdiction where it seems likely to lose. It seems like her only chance might be to begin the lawsuit by claiming her husband's family doesn't have standing to sue, but they may. Even so, it seems like her late husband's former employer could also bring suit to refuse to provide the benefits to her.

One of this woman's alternatives might be to bring a motion to dismiss the suit because she has decided to turn down the survivor benefits. The reason it might be in her interest to file such a motion is because it would be a great disservice to the entire U.S. transsexual population for this suit to go forward, with the likely outcome being that it will create yet another appeals court precedent against the legal status of all transsexual people in America. The transsexual population in America doesn't need another such legal precedent against it.

The take away from this news, is that it seems like all transsexual-people who intend to get married should take the responsible and appropriate step of leaving Texas, Florida, or Kansas, if they live there; to get married in Massachusetts, and to live in Massachusetts as well if that is feasible for them. Another alternative is to simply forgo marriage, which seems relatively deprecated in modern American culture anyway. Given the current state of legal affairs, it just seems irresponsible for transsexual people who get married, to get married in or to live in states while married, where people know, or should know, that such states do not recognize their legal sex status or their marriages, and that their marriages will be declared void if they become an issue. There is no longer any excuse for pleading ignorance about these sorts of topics, since, if nothing else, this sort of information ought to be part of the medical standards of care, and a prerequisite to getting a surgery recommendation letter for genital correction surgery.

Nikki Araguz could have avoided at least part of the hell that her life will become over the next few years, if she had simply moved to Massachusetts with her husband, married in Massachusetts , and stayed in Massachusetts, where her husband could just as well have been a fireman as he was in Texas. Yes, this amounts to blaming the victim somewhat, since these legal matters are, or should be, well known and common knowledge within the transsexual population, and there just isn't any excuse anymore for not knowing about them, and organizing one's life accordingly. Despite that judgment, one can only hope that Nikki Araguz and her attorneys miraculously find some way to prevail against the formidable odds they face.