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

The Problems With Focus On The Family’s And The Alliance Defense Fund’s Model Anti-Bullying Policy

Thumbnail Link To TrueTolerance.org's/The Alliance Defense Fund's 'Model Anti-Bullying Policy for All Schools'Focus On The Family, via their activism arm CitizenLink, has been using their website to promote the Alliance Defense Fund’s (ADF’s) Model Anti-Bullying Policy. When I read the model policy, I saw the problem with the lack of enumeration, and contacted the Gay, Lesbian, Straight Education Network (GLSEN) to get their statement on the Model Anti-Bullying Policy. Also, I vaguely remembered their was documentation on why enumeration is important in bullying policies, and wanted to know they had information on the relevant court rulings and statistical documentation.

During my phone communication with their media relations department, I learned there are actually four significant issues with the ADF’s Model Anti-Bullying Policy that Focus On The Family’s/CitizenLink‘s Education Annalist Candi Cushman is pushing in the media. (You remember Candi Cushman: she’s the point person that CitizenLink has declared on their website is “a  leading national expert on education issues” without providing corroboration as to how or why she is a leading national expert in this field.) So here are the four major issues with the Model Anti-Bullying Policy:

  1. Enumeration.
  2. Lack of a training component.
  3. Over-limitation on locations where school bullying falls under the policy; over-limitation on when school bullying falls under the policy.
  4. Overemphasis on free speech.

Point by point:

1. Enumeration.

GLSEN has a document available on the importance of enumeration — simply entitled “Enumeration,” and it references theirs and Harris Interactive’s From Teasing to Torment: School Climate in America; A Survey of Students and Teachers and The 2007 National School Climate Survey: The experiences of lesbian, gay, bisexual and transgender youth in our nation’s schools.

In a legal sense, enumeration refers to the identification of categories — of people or things — to which a law applies. In anti-bullying laws, in hate crime laws, in laws that protect against discrimination — these categories are referred to as protected classes.

One of the main reasons to spell out protected classes regards how students are better protected from bullying where enumerated polices exist.

[More below the fold.]
To quote from GLSEN’s Enumeration:

Students who attend schools with policies that enumerate categories report less bullying and harassment then students who do not.

• Research has shown that students in states with non-enumerated laws are no more protected from bullying than students who live in states without any anti-bullying and harassment laws (74.3% with generic policies vs. 75.0% with no policies report ‘often or frequently’ hearing homophobic remarks based on sexual orientation).

Thumbnail Link to Gay, Lesbian, Straight Education Network's (GLSEN's) 'Enumeration'• Students report less overall harassment when they know their school has a comprehensive policy that includes enumeration. Students from schools with an enumerated policy report that others are harassed far less often in their school for reasons like their physical appearance (36% vs. 52%), their sexual orientation (32% vs. 43%) or their gender expression (26% vs. 37%).

• Students whose schools have a policy that specifically includes sexual orientation and gender identity/expression are less likely than other students to report a serious harassment problem at their school (33% vs. 44%).

Enumeration is essential if laws are to be implemented.

• History and the Supreme Court tell us that enumerating policies is necessary. Girls would not have sports and our schools would not be integrated if policymakers had not specifically addressed these inequities by enumerating categories like sex and race in our laws. The Supreme Court of the United States noted in Romer v. Evans that “enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply (Romer v. Evans 517 U.S. 620 (1996).”

• Enumeration gives teachers and other educators the tools they need to implement anti-bullying and harassment policies, which makes it easier for them to intervene to prevent bullying. School personnel often fear that they will themselves be targeted for intervening on behalf of LGBT students. When they can point to language that provides clear protection for LGBT students, they feel more comfortable enforcing the policy. Students reported that teachers were significantly more likely to intervene always or most of the time in states with enumerated policies, as compared to states with either non-enumerated policies or no policies at all (25.3% vs. 15.9% and 12.3%).

Comprehensive policies with enumeration help ensure safety and reduce absenteeism.

• Students from schools with an enumerated policy are 50% more likely to feel very safe at school (54% vs. 36%). Students without such a policy are three times more likely to skip a class because they feel uncomfortable or unsafe (16% vs. 5%).

Unlike GLSEN, the Alliance Defense Fund and Focus On The Family — on their TrueTolerance.org — don’t list studies that support their conclusion that anti-bulling polices that don’t enumerate protect students better than enumerated policies. Unlike GLSEN, Focus On The Family has not funded its own studies to determine if their model policy actually does what thay state it will do. In fact, one of their bullet points on the subject actually states:

Statistics also indicate that race, ethnicity issues, and even opposite-sex harassment actually account for more bullying problems, than do homosexual-related issues.

If, as Focus On The Family states

• Focus on the Family believes that bullying should be recognized as a serious problem and should be strongly addressed.

• We believe schools can address this issue with a strong prohibition against any form of bullying-for any reason, against any child.

…Why point out which group is bullied more, or bullied less? This isn’t the Oppression Olympics, but the Alliance Defense Fund, Focus On The Family, and specifically Focus on the Family Action (CitizenLink) Education Analyst Candi Cushman, are trying to make this the Oppression Olympics. Specifically, Candi Cushman stated (emphasis added):

…In fact, when you look at the more objective data sources, and not just the information coming from gay activist groups, physical appearance-or the general concept of appearing different than one’s peers — is actually the most common reason reported for why victims are targeted. This can involve a whole slew of issues, such as one’s weight, a girl who is developing faster than others, a child who wears glasses, or a boy who acts more effeminate than his peers, etc, etc. In fact, statistics indicate that race, ethnicity issues, and even opposite-sex harassment actually account for more bullying problems, than do homosexual-related issues.

It’s sure appears to me that Candi Cushman is defining how serious bullying is against individual students by puting it in the terms of how many in each catagory are bullied. It seems to me that Candi Cushman is framing anti-LGBTQ bullying as a lesser form of bullying then of bullying for race or gender — she’s more than implying that because the quantity of students who are bullied for being perceived as being LGBTQ are less in numbers than other forms of bullying, it’s not a serious problem.

2. Lack of a training component.

There is no training component to Focus On The Family’s and the Alliance Defense Fund’s Model Anti-Bullying Policy.

Think about that for a moment. How is a teacher or administrator going to know how to identify what constitutes bullying — identifying bullying that falls under the parameters of a school district’s policies? How does a teacher or administrator recognize the students who are being bullied if one doesn’t know what typical bullying of specific types of students looks like? How is a teacher or administrator going to know, by district policy, when he, she, or ze is supposed to intervene in accordance with the policy? What are intervening actions are the teacher or administrator is supposed to take if he, she, or ze determines bullying has occurred? How is a teacher or administrator going to know what intervening actions are effective, and what intervening actions are ineffective? — and could make the bullying escalate?

With no training component spelled out in Model Anti-Bullying Policy, Focus On The Family’s and the Alliance Defense Fund’s Model Anti-Bullying Policy, the bad outcomes that GLSEN’s studies indicate in Enumeration document seem assured.

3. Over-limitation on locations where school bullying falls under the policy; over-limitation on when school bullying falls under the policy.

This is what the Model Anti-Bullying Policy states about where the policy applies:

The District prohibits all bullying on school premises, at school-sponsored functions or activities, or on school-sponsored transportation.

Thumbnail Link to GLSEN's 'Victimization Relates To Lowered School Connectedness For LGBT Youth, Institutional Support Relates To Greater Connectedness, GLSEN Article Finds'This is the definition of these locations:

B. “School Premises” means any building, structure, athletic field, sports stadium or other real property owned, operated, leased or rented by the District or one of its schools, including, but not limited to, any kindergarten, elementary, secondary, or vocational-technical school.

C. “School-Sponsored Functions or Activities” means a field trip, sporting event, or any other function or activity that is officially sponsored by the District or one of its schools.

D. “School-Sponsored Transportation” means a motor vehicle owned, operated, leased, rented or subcontracted by the District or one of its schools.

This means that students who don’t take the school bus to and from school are subject to bullying that doesn’t fall under the district anti-bullying policy if they walk, ride a bike, or take a privately owned vehicle to school. This means that all bullying that takes place on a public sidewalk or street in front of the school doesn’t fall under the district anti-bullying policy. This means that all cyberbullying that is initiated via electronic devices that are not physically on school property when the cyberbullying is initiated is cyberbullying that doesn’t fall under the district anti-bullying policy.

A student bully essentially just has to move his bullying off-campus, off school buses, and away from within the confines of school-sponsored events to engage in bullying that impacts his, her, or hir chosen bullying victims.

And remember, bullying can include physical violence.

4. Overemphasis on free speech.

The last line in the Model Anti-Bullying Policy states this:

This policy shall not be interpreted to infringe upon the First Amendment rights of students, and is not intended to prohibit expression of religious, philosophical, or political views, provided that such expression does not cause an actual, material disruption of the work of the school.

Thumbnail Link To Citizen Magazine's (Focus On The Family's) Parents Beware; 'Anti-Bullying' Initiatives Are Gay Activists' Latest Tools Of Choice For Sneaking Homosexuality Lessons Into Classrooms Note that the first listed protected viewpoint listed  is religious. That means an Evangelical or Pentecostal Christian student is free to tell lesbian, gay, bisexual, transgender, and queer (LGBTQ) students as frequently as he or she desires:

You homosexuals are an abomination to God, and are going to hell.

As long as an Evangelical or Pentecostal Christian student does not cause an actual, material disruption of the work of the school — which I’m assuming means doesn’t disrupt work in the classroom — this would not be administratively considered creating a hostile school environment for LGBTQ students. So a bullying Christian student could repeat this over and over again as long as he or she said this to LGBTQ students between classes and during lunch period.

This means that a transgender elementary school student could be harassed with faith-based free speech as frequently as frequently as a peer Evangelical or Pentecostal Christian student desires — except when that faith-based free speech causes an actual, material disruption of the work of the school. Recess and lunch then are fair game in the school day to harass transgender elementary school children.

The Alliance Defense Fund’s and Focus On The Family’s Model Anti-Bullying Policy is designed specifically to let Evangelical or Pentecostal Christian students (and their Evangelical or Pentecostal Christian parents) to create hostile school environments for LGBTQ-identified students.

And let’s again remember the woman who is currently pushing the meme “Anti-Bullying” Initiatives Are Gay Activists’ Latest Tools Of Choice For Sneaking Homosexuality Lessons Into Classrooms. She’s the education expert…right?


Further reading:

* Twin Cities Daily Planet: Mother: Anoka-Hennepin School policy contributed to gay son’s suicide

* GLSEN: An Open Letter from GLSEN Board Member Sirdeaner Walker to Candi Cushman at Focus on the Family


* AFA Highlights/Recycles FOTF Campaign Against Perceived Gay Public School Agenda

* Focus On The Family/CitizenLink Sees “Sneaky” Gay Agenda In The Public Schools

Pam’s House Blend – Front Page

—  John Wright