Nikki Araguz and an Androgen Insensitivity Syndrome Diagnosis

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.

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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.

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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)

Nikki Araguz Lawsuit - An Examination of Littleton v. Prange

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

The trial court ruling in Littleton on which the 1999 appellate court ruling is based, was from a ruling on a defense motion for summary judgment by the court without trial. The core of the Littleton v. Prange ruling has two facets. The appellate court in Littleton ruled that original birth certificates are immutable in the state of Texas with regard to their sex designation. The Littleton court also ruled that in the state of Texas, genetics determine legal sex status. However, in the Littleton case, the court made its ruling about Christie Littleton presumptively, based purely on her birth certificate, without her ever having undergone DNA testing. The Littleton ruling is also silent on the issue of the legal sex status and identity of intersex people with mosaic sex chromosomes and other related congenital conditions. Parenthetically, the appellate opinion written by Texas judge Phil Hardberger (2) in the Littleton case reads like few other appellate court rulings anyone is likely to encounter from other jurisdictions. Its colloquial language, style, and cultural allusions, would likely astound most jurists outside of Texas. In Littleton, the court made the following findings of fact:

We find the case, at this stage, presents a pure question of law and must be decided by this court.

Based on the facts of this case, and the law and studies of previous cases, we conclude:

(1) Medical science recognizes that there are individuals whose sexual self-identity is in conflict with their biological and anatomical sex. Such people are termed transsexuals.

(2) A transsexual is not a homosexual in the traditional sense of the word, in that transsexuals believe and feel they are members of the opposite sex. Nor is a transsexual a transvestite. Transsexuals do not believe they are dressing in the opposite sex's clothes. They believe they are dressing in their own sex's clothes.

(3) Christie Littleton is a transsexual.

(4) Through surgery and hormones, a transsexual male(sic) can be made to look like a woman, including female genitalia and breasts. Transsexual medical treatment, however, does not create the internal sexual organs of a women (except for the vaginal canal). There is no womb, cervix or ovaries in the post-operative transsexual female.

(5) The male chromosomes do not change with either hormonal treatment or sex reassignment surgery. Biologically a post-operative female transsexual is still a male.

(6) The evidence fully supports that Christie Littleton, born male, wants and believes herself to be a woman. She has made every conceivable effort to make herself a female, including a surgery that would make most males pale and perspire to contemplate.

(7) Some physicians would consider Christie a female; other physicians would consider her still a male. Her female anatomy, however, is all man-made. The body that Christie inhabits is a male body in all aspects other than what the physicians have supplied.

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.

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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.

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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.

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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