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 - Possible Methods for Avoiding a Legal Battle Like Hers

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

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

There are multiple areas of legal protections that are important, such as:

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

Choice of Residence

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

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

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


Estate Planning Documents - A Will or Will and Trust

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

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

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

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

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

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

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

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


Health Care Directives and Power of Attorney

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

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

A healthcare power of attorney can describe how the person with the power of attorney should handle any number of medication decisions, and well as the circumstances during which the designated person has such powers. Such decisions can include when and how to handle:

• nutrition methods, including feeding tubes;
• pain management, types of pain medication;
• kidney dialysis;
• whether or not to accept a transplanted organ;
• management of medical life support systems;
• whether or not to receive blood transfusions; and
• numerous others.

The reference links below include cursory example healthcare power of attorney documents that may be worth perusing. It is possible to make a such document far more detailed and inclusive than the ones in the examples. Such documents, like estate documents, need to be drafted in contemplation of how to handle numerous potentially unexpected and unanticipated medical circumstances.

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

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


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

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

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

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

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

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


Non-Disclosure Agreements

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


Political and Legislative Activism

Last, it seems like one of the things transsexual and intersex people who are interested in political activism may want to focus on, is lobbying state legislatures for the creation of statutes in U.S. states that:

• provide explicit legal sex status for transsexual and intersex people after genital reconstruction surgery; 
• explicitly describe the legal marriage rights of transsexual and intersex people before and after genital reconstruction surgery; 
• provide for sealing of court name change petitions,  birth certificate proceedings and related government records that are changed because of a person's transsexual or intersex condition. 

If Texas had a statute that provided sealed name change petitions for transsexual and intersex people, Nikki Araguz may have been spared the public humiliation of having the contents of her 1996 name change petition distributed to the entire world via the internet, notwithstanding the invasions of privacy committed against her by Frank Mann III. Currently, not a single U.S. state has explicit or detailed statutes which describe the legal sex identity status of transsexual and intersex people, that define related marriage rights, or which have legal definitions of male and female in its statutes. Even in Michigan, its birth certificate change statute is really just a single phrase in a single line, of its statute regarding procurement of birth certificates and making modifications to them (8). Not until, transsexual and intersex people are given explicit legal recognition by state and federal governments, will there by any hope that legal assaults like the one being rapaciously inflicted on Nikki Araguz, or upon Christie Littleton, Michael Kantaras, and others before her, will come to an end.


Conclusions

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

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

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

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

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

---

references

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

http://www.legalhelpmate.com/

the media's yellow journalistic smoke screen

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

Nikki Araguz (left) with her husband Thomas Araguz

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

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

Falkenberg's devious writing goes further when she places "our children" in quotes when referencing a statement made by Nikki Araguz, in an effort to signal to readers that Falkenberg questions the credibility of that characterization, when in fact nobody disputes the fact that Nikki Araguz had been caring for those two children over the course of the past two years, and during that time had been a step mother to them. Using the double quote method of attacking the credibility of characterizations, Falkenberg goes on to place the phrase "birth defect" in double quotes, without giving details about the fact that Nikki Araguz's own mother has reported that Nikki was born with partial "androgen insensitivity syndrome" (AIS) (2), in which a person's body is unable to process or respond to testosterone. The Houston NBC television station's web site reported on this as follows:

... they said Nikki Araguz suffers from a rare birth defect called complete androgen insensitivity syndrome, where a person has all of the physical traits of female, but has no uterus.

"This is not a case of someone who took hormones to prevent from developing into a male. This is a case of a person who was born with a defect," said Nikki Araguz's mother.

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.

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(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"