BREAKING: Texas appeals court rules in favor of trans widow Nikki Araguz

Nikki Araguz

Nikki Araguz

CORPUS CHRISTI — The 13th District Court of Appeals in Corpus Christi issued a landmark opinion Thursday in favor of Houston trans widow Nikki Araguz, ruling that Texas must recognize the marriages of trans people.

The opinion, written by Chief Justice Rogelio Valdez, reverses the 2011 ruling by Houston state district Judge Randy Clapp, who ruled that Araguz was born male and Texas’ 2005 marriage amendment doesn’t recognize her marriage to a man. Her 2008 marriage to her late husband, Thomas Araguz III, became invalid. Thomas Araguz was a volunteer firefighter in Wharton and was killed in the line of duty in 2010 and Nikki Araguz was denied his death benefits.

Clapp’s ruling hinged on the 1999 Texas Court of Appeals decision in Littleton v. Prange, which found that since a male who transitioned to female was born male, she was therefore still male. Her marriage to a male was therefore invalid because same-sex marriages are invalid under state law.

But the Texas Legislature opened the door for transgender marriage in 2009 when it added documentation of a sex change to the identification documents people can present to obtain a marriage license. Araguz’s appeal in September hinged on how the 2009 statute voids the Littleton ruling.

Houston attorney Kent Rutter, the lead attorney for the appeal, said the opinion marks the first time in Texas a court has recognized that trans people have the right to marry.

“What the decision today says is Texas law now recognizes that an individual who has had a sex change is eligible to marry a person of the opposite sex,” he said. “I think it’s a significant victory for trans people in Texas.”

Kent said that the ruling will result in further court proceedings to ensure Araguz receives her late husband’s death benefits.

 

—  Dallasvoice

What’s Shakin’ – Wings of Desire at MFAH, IRS to allow deductions for gender transition

Wings of Desire1. If you’re a fan of German films that are partially in French, the film oeuvre of Peter Faulk and sexy trapeze artists with existential angst then “Wings of Desire” is your kind of flick.  The 1987 Wim Wenders masterpiece tells the story of an Angel (Bruno Ganz) who, after watching humanity since the dawn of time, desires to become human so he can be with the woman he loves. “Wings of Desire” screens tonight at 7 pm at the Museum of Fine Art Houston (1001 Bissonnet).

2. Transgender Americans who undergo hormone therapy or receive gender realignment surgery may now be able to deduct the costs of those treatments on their taxes. According to GLAD, the Gay and Lesbian Advocates and Defenders, the IRS has issued an “action on decision” statement saying that the agency will acquiesce to an appeals court ruling allowing the deductions. GLAD cautions that medical deductions can still be audited and encourages anyone planning to deduct cost of transition medical expenses to rigorously document the medical necessity of treatments and consult with a tax professional when preparing return

3. Election day is tomorrow. If you’re one of the 58,345 people in Harris County who voted early, then good for you.  If not, you’ll want to visit HarrisVotes.org and find out where to go to cast your ballot.  Polls open at 7 am on Tuesday and close at 7 pm sharp.

—  admin

Prop 8 supporters still want judge disqualified

Lawyers file brief claiming Vaughn Walker’s ruling striking down gay marriage ban should be invalidated because he is gay and in a relationship with a man

Walker.Vaughn

JUDGING THE JUDGE | In this July 8, 2009 file photo, Judge Vaughn Walker is seen in his chambers at the Phillip Burton Federal Building in San Francisco, Calif. Lawyers for the sponsors of California’s voter-approved same-sex marriage ban have filed briefs with the appeals court asking that Walker’s ruling striking down Prop 8 be invalidated because he is gay. (San Francisco Chronicle, Paul Chinn/Associated Press)

LISA LEFF  |  Associated Press
editor@dallasvoice.com

SAN FRANCISCO — The sponsors of California’s voter-approved same-sex marriage ban have asked a federal court to invalidate the ruling of the federal judge who struck it down, saying the judge should be disqualified because he did not divulge he was in a long-term relationship with another man.

Lawyers for the Proposition 8’s backers filed their open brief on the issue late Monday, Oct. 3, with the 9th U.S. Circuit Court of Appeals in San Francisco. They claim that another federal judge erred when he concluded U.S. Chief Judge Vaughn Walker’s relationship status was irrelevant to Walker’s ability to fairly preside over the trial on the measure’s constitutionality.

In their brief, they argue that Walker’s impartiality can be questioned because he is “similarly situated” to the plaintiffs who sued to overturn Proposition 8, two same-sex couples in established relationships. They also said that while Walker has not indicated if he and his partner wish to marry, research presented as evidence in the trial found that two-thirds of unmarried same-sex couples would tie the knot if they could.

“Given that Judge Walker was in a long-term, same-sex relationship throughout this case (and
for many years before the case commenced), he was, in Plaintiffs’ own words, ‘similarly situated to (Plaintiffs) for purposes of marriage,’” the lawyers wrote. “And it is entirely possible — indeed, it is quite likely, according to Plaintiffs themselves — that Judge Walker had an interest in marrying his partner and therefore stood in precisely the same shoes as the Plaintiffs before him.”

Walker’s successor, Chief Judge James Ware, rejected similar arguments in late August, after the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot made the first attempt in the nation to disqualify a sitting judge based on sexual orientation.

Ware said the presumption that Walker could not be unbiased was “as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”

In an apparent response, the coalition’s attorneys wrote that they were not suggesting that gay or lesbian judges could never preside over cases involving gay rights questions.

“We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s ‘don’t ask, don’t tell’ policy,” they said. “Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a current personal interest in marrying.”

The 9th Circuit already is reviewing whether Walker properly concluded the ban violates the rights of gay Californians and if Proposition 8’s sponsors were eligible to appeal his ruling once the state’s attorney general and governor declined to challenge it. A decision could come down at any time.

This article appeared in the Dallas Voice print edition October 7, 2011.

—  Kevin Thomas

Judge to rule this week in Nikki Araguz case

Nikki Araguz

Transgender widow vows appeal if she loses case

JUAN A. LOZANO  |  Associated Press

WHARTON, Texas — The transgender widow of a Texas firefighter will likely learn next week whether his family’s request to nullify their marriage and strip her of any death benefits will be granted, a judge said Friday.

State District Judge Randy Clapp made the announcement after hearing arguments in a lawsuit filed by the family of firefighter Thomas Araguz III, who was killed while battling a blaze last year. The suit argues that his widow shouldn’t get any benefits because she was born a man and Texas doesn’t recognize same-sex marriage.

The widow, Nikki Araguz, said she had done everything medically and legally possible to show that she is female and was legally married under Texas law. She believes that she’s entitled to widow’s benefits.

“I believe the judge is going to rule in my favor,” Araguz said after the court hearing.

The lawsuit seeks control over death benefits and assets totaling more than $600,000, which the firefighter’s family wants to go to his two sons from a previous marriage. Voiding the marriage would prevent Nikki Araguz from receiving any insurance or death benefits or property the couple had together.

Thomas Araguz died while fighting a fire at an egg farm near Wharton, about 60 miles southwest of Houston, in July 2010. He was 30.

His mother, Simona Longoria, filed a lawsuit asking that her son’s marriage be voided. She and her family have said he learned of his wife’s gender history just prior to his death, and after he found out, he moved out of their home and planned to end the marriage.

But Nikki Araguz, 35, has insisted that her husband was aware she was born a man and that he fully supported her through the surgical process to become a woman. She underwent surgery two months after they were married in 2008.

Longoria’s attorney, Chad Ellis, argued that Texas law — specifically a 1999 appeals court ruling that stated chromosomes, not genitals, determine gender — supports his client’s efforts to void the marriage.

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

Ellis presented medical and school records that he said showed Nikki Araguz was born without female reproductive organs and that she presented herself as a male while growing up and going to school. He also said her birth certificate at the time of her marriage indicated she was a man.

“By law, two males cannot be married in this state,” Ellis told the judge.

Nikki Araguz, who was born in California, did not change her birth certificate to reflect she had become a female until after her husband’s death, said Edward Burwell, one of the attorneys for Thomas Araguz’s ex-wife, Heather Delgado, the mother of his two children.

But one of Nikki Araguz’s attorneys, Darrell Steidley, said that when his client got her marriage license, she presented the necessary legal documents to show she was a female. He also noted changes made in 2009 to the Texas Family Code that allowed people to present numerous alternatives to a birth certificate as the proof of identity needed to get a marriage license. That was an example, he argued, of the state trying to move away from the 1999 appeals court ruling.

The changes in 2009 allowed transgendered people to use proof of their sex change to get a marriage license. The Texas Legislature is currently considering a bill that would prohibit county and district clerks from using a court order recognizing a sex change as documentation to get married.

After the hearing, the firefighter’s family and attorneys for his ex-wife criticized plans by Nikki Araguz to star in a reality television dating show and implied she was only interested in money and fame that the case would bring her.

“That is absurd,” Nikki Araguz said in response. “I’m after my civil equality and the rights that I deserve as the wife of a fallen firefighter.”

If the judge rules against the firefighter’s family in their motion for a summary judgment, the case would then proceed to trial. Araguz said if the judge rules against her, she would appeal, all the way to the U.S. Supreme Court if necessary.

—  John Wright

Supreme Court rules in favor of Westboro Baptist

Phelps pickets from a July 2010 Dallas appearance

By an 8-1 decision, the Supreme Court upheld the right of Westboro Baptist Church to picket military funerals, according to Associated Press.

From the decision:

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.”

The father of a Marine killed in Iraq in 2006 sued the Phelps clan for picketing at the funeral. He called the group’s actions targeted harassment and invasion of privacy. The purpose of the picketing was to purposely inflict pain.

In a jury trial, the father was awarded $11 million that was reduced to $5 million by the judge. On appeal, the ruling was overturned and the judgment thrown out. This ruling upholds the appeals court.

Chief Justice John Roberts wrote the opinion. The dissenting vote came from Justice Samuel Alito.

A group of 21 news organizations filed a brief siding with the Phelps group based on preserving free speech rights.

—  David Taffet

Gay partner can inherit — in New York, anyway

Susan Sommer

Lambda Legal has won another lawsuit related to same-sex marriage, this time in New York. The court ruled that the survivor of a same-sex marriage can inherit as a spouse.

J. Craig Leiby and H. Kenneth Ranftle were together 25 years and married in Canada in 2008. Ranftle died of lung cancer later that year and left his estate to Leiby.

After his death, one of Ranftle’s brothers challenged the will claiming same-sex marriage is not legal in New York. That state does, however, recognize marriages performed elsewhere and that recognition has been upheld in court at least twice.

“The Leiby case marks the first time a New York appeals court has afforded recognition to same-sex spouses for inheritance purposes,” said Lambda Legal senior counsel Susan Sommer.

Sommer said that the ruling protects out-of-state marriages. Families are prevented from pretending there was no relationship and disregarding the wishes of the deceased.

—  David Taffet

Federal appeals court asked to allow same-sex marriages to resume in California

Ted Olson

The American Foundation for Equal Rights, which is challenging Proposition 8 in federal court, today asked an appeals court to lift its stay blocking same-sex marriages in California and allow them to resume immediately pending the outcome of the case.

In August, the U.S. Court of Appeals for the Ninth Circuit stayed an injunction barring enforcement of Prop 8, California’s ban on same-sex marriage. However, AFER argues in its motion filed today that due to delays in the Prop 8 case, Perry v. Schwarzenegger, the stay should be lifted.

AFER’s request is unrelated to today’s announcement by the Obama administration calling a portion of the Defense of Marriage Act unconstitutional and saying the Department of Justice will no longer defend DOMA in federal court.

“We are respectfully asking the Court to lift its stay on marriage for gay and lesbian couples because it has become apparent that the legal process is taking considerably longer than could reasonably have been anticipated,” said Theodore B. Olson, co-lead counsel for AFER. “It’s important to remember that the stay was originally ordered with the understanding that the Ninth Circuit would rule swiftly on the case before it. Now that the issue of the Proponents’ standing to appeal has been referred for analysis by the California Supreme Court, substantial additional, indefinite and unanticipated delays lie ahead. It’s unreasonable and decidedly unjust to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second class citizens while their U.S. District Court victory is debated further.”

Read the full press release after the jump.

—  John Wright

Attorney says gay Dallas man will take his battle for a divorce to the Texas Supreme Court

‘J.B.’

A court’s decision last year to deny a divorce to a gay Dallas couple is being appealed to the Texas Supreme Court.

Attorney James “Jody” Scheske confirmed Wednesday that his client, J.B., plans to appeal the August decision by the 5th Circuit Court of Appeals, which ruled that gay couples can’t divorce in Texas because the state doesn’t recognize same-sex marriage.

J.B. and his husband, H.B., were married in 2006 in Massachusetts before moving to Dallas. After they filed for a divorce in Dallas County, District Judge Tena Callahan ruled in October 2009 that she had jurisdiction to hear the case, calling Texas’ bans on same-sex marriage unconstitutional.

Texas Attorney General Greg Abbott promptly intervened and appealed to the 5th District court, which overturned Callahan’s decision.

“We respectfullly disagree fundamentally with the Court of Appeals ruling that denies equal acess to divorce,” said Scheske, of Akin Gump Straus Hauer & Feld in Austin. “Thus we’ve decided to request that the Texas Supreme Court review the case.”

Scheske said his petition for review has not yet been filed and he’s requesting an extension of the deadline until February. He said once the petition is filed, the Supreme Court will decide whether to hear the case. Scheske acknowledged that the high court is considered very conservative, but he remains optimistic.

“In my business, you always believe that justice can prevail, and the justices on our Supreme Court, just like every other judge and lawyer, are bound to apply the law equally to everybody,” Scheske said. “I know people are cynical about that, but that’s actually the way our system works.”

Scheske recently scored a victory in another gay divorce case in Austin, where an appeals court ruled that Abbott could not intervene after a district judge granted a divorce to a lesbian couple. However, Scheske said the Austin ruling was based on procedural grounds and has no impact on the Dallas case.

—  John Wright

Court says Texas AG can’t block gay divorce

Angelique Naylor

Associated Press

AUSTIN — The Texas attorney general can’t block a divorce granted to two women who were legally married elsewhere, an appeals court ruled Friday, Jan. 7.

A judge in Austin granted a divorce last February to Angelique Naylor and Sabina Daly, who were married in Massachusetts in 2004 and then returned home to Texas.

A day after the divorce was granted, Texas Attorney General Gregg Abbott filed a motion to intervene in the case, arguing the judge didn’t have the jurisdiction to grant the divorce because Texas has a constitutional ban on same-sex marriage. The judge ruled that the attorney general’s motion wasn’t timely, a decision Abbott then appealed.

In Friday’s ruling, a three-judge panel of 3rd Texas Court of Appeals in Austin said the state was not a party of record in the divorce case and Abbott therefore did not have standing to appeal.

The ruling, however, does not settle the debate over whether same-sex couples should be allowed to divorce in Texas, where a different appeals court has ruled against a gay couple seeking a divorce in the state.

The 5th Texas Court of Appeals in Dallas ruled in August that gay couples legally married in other states can’t get a divorce in Texas. In that case, Abbott had appealed after a Dallas judge said she did have jurisdiction to grant a divorce — though had not yet granted one — and dismissed the state’s attempt to intervene.

The ruling by the Dallas appeals court’s three-judge panel also affirmed the state’s same-sex marriage ban was constitutional. Texas voters in 2005 passed, by a 3-to-1 margin, a constitutional amendment to ban same-sex marriage even though state law already prohibited it.

Austin attorney Jody Scheske, who handled the appeals in both divorce cases, acknowledged the divergent rulings far from settle the issue of gay couples seeking a divorce in Texas.

“It’s complicated and to some extent remains unsettled and that’s unfortunate,” he said. “If you have a legal marriage you should have the same equal right to divorce as all other married people have.”

But for his client in the Austin case, the Friday ruling means she will remain divorced, Scheske said.

“For the larger issue, what it means is the state of Texas can’t intervene in private lawsuits just because it doesn’t like one of the trial court’s rulings,” he said. “The state was not a party, so they couldn’t intervene after the fact.”

The attorney general can choose to ask the entire Austin appeals court to hear the case there or can appeal the Friday ruling to the Texas Supreme Court.

Abbott spokeswoman Lauren Bean said their office “will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.”

“The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas. The court’s decision undermines unambiguous Texas law,” Bean said.

Unlike the Dallas case, the Austin case did not examine whether the judge had jurisdiction to grant the divorce. Ken Upton, a staff attorney for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people, noted the Austin appeals court decision was in fact quite narrow.

“Basically, the only rule that comes out of it is that (Abbott) waited too long,” he said.

He said the predicament of gay couples seeking divorce in Texas highlights what happens when states adopt “such different views about marriage and relationships.”

“The more we have this patchwork of marriage laws, the more difficult it is for people who don’t have access to the same orderly dissolution,” he said.

—  John Wright

After losing bitter custody battle, lesbian mother Debie Hackett of Dallas takes her own life

Debie Hackett with her son, from her Facebook page

Another suicide in the LGBT community this week showed that bullying isn’t the only reason people take their own lives.

Last July, I wrote about Debie Hackett, who was fighting with her former partner for visitation rights with their son. An appeals court gave her the right to assert her parental rights and sue for visitation and the case was remanded to the lower court. When I spoke to her, she was hopeful that she would be able to see her son soon.

This month she lost her case.

Despondent, Hackett took her own life on Christmas Eve.

Could interpretation of laws to discount a same-sex relationship be the underlying cause of this needless death?

A friend of Hackett’s sent me an e-mail to let me know what had happened and asked that as a tribute I post suicide-prevention information.

Local counselor Candy Marcum said that, surprisingly, December is not necessarily the worst month for suicide. In Hackett’s case, the loss in court combined with loneliness on the holiday must have been too much for her.

Grieving friends and family can only wonder if there was something more they could have done. Marcum said the warning signs are not always apparent and counsels those grieving not to blame themselves.

Ann Haas of the American Foundation for Suicide Prevention specializes in prevention in the LGBT community. In a November article, she listed a number of warning signs for suicide. To read them, go here.

—  David Taffet