The Texas Constitution defines marriage as between one man and one woman, but how will the state define “man” and “woman”?
Transgender marriage cases in Dallas and Houston could force the Texas Supreme Court — or even the U.S. Supreme Court — to ultimately decide the thorny issue.
In Houston, transgender widow Nikki Araguz has appealed a district judge’s ruling denying her death benefits from her late husband, Thomas Araguz III, a volunteer firefighter who was killed in the line of duty in 2010.
The judge, Randy Clapp, granted summary judgment to Thomas Araguz’s family, which filed a lawsuit alleging the couple’s 2008 marriage is void because Nikki Araguz was born male, and Texas law prohibits same-sex marriage.
The Araguz family’s argument relies heavily on a San Antonio appeals court’s 1999 ruling in Littleton v. Prange, which found that gender is determined at birth and cannot be changed.
However, LGBT advocates say the Littleton ruling is unconstitutional, goes against medical science and isn’t binding in other parts of the state, where it has not always been followed.
In Dallas, a district judge apparently reached the opposite conclusion from Clapp this November — denying a similar motion for summary judgment.
James Allan Scott, a transgender man, is seeking a divorce settlement from his wife of 13 years, Rebecca Louise Robertson. However, Robertson wants to have the marriage declared void because Scott was born a biological female.
District Judge Lori Chrisman denied Robertson’s motion for summary judgment, which leaned heavily on Littleton. The judge provided no explanation for her ruling allowing the matter to proceed as a divorce, at least for now.
It’s unclear whether Texas Attorney General Greg Abbott plans to intervene in the Dallas case. Abbott has intervened in same-sex divorce cases in Austin and Dallas, seeking to block them. But thus far he has stayed above the fray on transgender marriage, even though it presents overlapping issues.
After a transgender woman and a cisgender woman applied for a marriage license in 2010, the El Paso County clerk requested a ruling from Abbott about whether to grant it. But Abbott opted not to weigh in, with his office saying it would instead wait for court rulings in the Araguz case. The El Paso couple was later able to marry in San Antonio, where the county clerk went by Littleton v. Prange.
In response to the Araguz case, a bill was introduced in the Texas Legislature this year to ban transgender marriage. The bill would have removed proof of a sex change from the list of documents that can be used to obtain marriage licenses. Strongly opposed by LGBT advocates, it cleared a Senate committee but never made it to the floor.
Trans advocates said the bill also would have effectively prohibited the state from recognizing their transitioned status — or, who they are — for any purpose.
The problem for socially conservative lawmakers is, they can’t have it both ways. Marriage is a fundamental right that courts have said can’t be taken away from a person completely. So no matter what, Texas will be forced to allow a version of same-sex marriage.
Which is why some believe the cases could help undo the marriage amendment.
— John Wright
This article appeared in the Dallas Voice print edition December 30, 2011.