Araguz vows to take fight to the Supreme Court

WEDDING DAY | A firefighter Thomas Araguz III and Nikki Araguz were married in 2008. After Thomas was killed in the line of duty last year, his family and ex-wife went to court to keep Nikki from getting his benefits, saying the marriage was invalid because Nikki was born a male.

Trans widow hires law firm involved with Lawrence v. Texas to appeal ruling denying her access to death benefits from her husband

JOHN WRIGHT |  Online Editor
wright@dallasvoice.com

HOUSTON — Transgender widow Nikki Araguz this week announced a new legal team and vowed to appeal a judge’s ruling denying her death benefits all the way to the U.S. Supreme Court if necessary.

Araguz said the Houston firm of Katine & Nechman, which served as local counsel in the landmark Lawrence v. Texas case that led to a Supreme Court ruling overturning Texas’ sodomy law, will represent her on appeal.

In late May, State District Judge Randy Clapp of Wharton County issued a two-page ruling saying Araguz isn’t entitled to death benefits from her husband Thomas Araguz III, a volunteer firefighter who was killed in the line of duty last year.

Clapp granted summary judgment to Thomas Araguz’s family, which filed a lawsuit alleging that the couple’s 2008 marriage is void because Nikki Araguz was born a man, and Texas prohibits same-sex marriage.

Nikki Araguz, who until now has been represented by Frye & Associations, said she expects Katine & Nechman will partner with national LGBT advocacy groups on the appeal.

Araguz said she chose to switch law firms because the high-profile case could have broad implications for transgender equality, possibly addressing fundamental legal questions about how gender is determined.

“I think that collaborating with multiple national organizations’ legal teams, and the Supreme Court experience of Mitchell Katine, is the better way to go for the greater good of everyone who’s going to be affected by the outcome of this case,” Araguz said this week in an interview with Dallas Voice.

Phyllis Frye, the well-known transgender attorney who heads Frye & Associates, didn’t respond to a phone message seeking comment.

A representative from Katine & Nechman confirmed that the firm is likely to take the case but said any further comment would have to come from partner Mitchell Katine, who couldn’t immediately be reached.

Ken Upton, a Dallas-based senior staff attorney for the national LGBT civil rights group Lambda Legal, agreed that Araguz’s case could be an important one for the transgender community.

Upton said he believes Clapp should have at least granted Araguz a trial.

“If they’ve got any evidence at all, the rule is they should get to go to trial and prove their case,” Upton said. “The judge really gave her short shrift.”

In their motion for summary judgment, Thomas Araguz’s family cited a San Antonio appellate court’s 1999 ruling in Littleton v. Prange, which found that sex is determined at birth and cannot be changed.

Araguz’s attorneys, meanwhile, argued that the Littleton decision is unconstitutional and isn’t binding on courts in other parts of Texas. They also noted that in 2009 the Legislature added a court order of sex change to the list of documents that can be used to obtain marriage licenses in Texas — effectively overturning the Littleton decision.

South Texas College of Law professor James W. Paulsen, a Harvard-educated expert in family and marriage law, submitted a written affidavit in which he argued that even if the Araguzes’ marriage was void when it was celebrated in 2008, it became valid when the 2009 law took effect.

“Proper resolution of this case does not require this court to take a position on transsexual marriage,” Paulsen wrote. “Nor would such a determination be proper. The issue has been determined by the Texas Legislature.”

Also submitting a written affidavit was Collier Cole, a licensed clinical psychologist and a professor at University of Texas Medical Branch in Galveston who specializes in the treatment of gender dysphoria. Cole said Araguz, now 36, began hormone therapy at 18 and, according to medical standards, completed her transition sometime in the late 1990s, even though she didn’t have surgery until 2008. Cole concluded that, “I regard her [Araguz] medically and psychologically as female.”

But Judge Clapp chose not to address any of these arguments in his order granting summary judgment. Araguz, who has a Texas driver’s license and a California birth certificate indicating that she is female, said she was born with a birth defect.

“The doctors misidentified me at birth as male, and as I grew up, I developed into a female, and by 13 I had already developed breasts,” Araguz said. “It was not until much later that I was able to medically take care of it.

“It’s a birth defect like an extra toe or an extra finger,” she said. “If you had the option to have it removed, you would.”

FIGHTING ALL THE WAY | Trans widow Nikki Araguz, pictured here with her late husband Thomas, says she will fight all the way to the Supreme Court.

—  John Wright

Transsexual widow Nikki Araguz to appeal Texas judge’s decision declaring her marriage invalid

Nikki Araguz

Transsexual widow Nikki Araguz plans to appeal a state district judge’s ruling last week declaring her marriage invalid and denying her death benefits from her husband.

Judge Randy Clapp, of the 329th Judicial District Court in Wharton County, ruled May 24 that Nikki Araguz is not entitled to death benefits from Thomas Araguz, a volunteer firefighter who was killed in the line of duty last year.

Clapp declared the Araguzes’ marriage invalid because he said Nikki Araguz was born male and Texas law prohibits same-sex marriage.

In a press release sent out this afternoon, Nikki Araguz’s attorneys, Frye and Associates, announced that they plan to appeal Clapp’s decision to the 13th Court of Appeals in Corpus Christi “in a timely manner.”

Nikki Araguz also issued her own press release, saying she is “completely devastated” by Clapp’s ruling and providing background about her marriage and the court case.

We’ve posted both press releases in their entirety after the jump.

—  John Wright

Wharton judge rules against Nikki Araguz

Nikki Araguz

We’re a few hours late to this because I just emerged from the basement of the Interfaith Peace Chapel at the Cathedral of Hope, where about 50 people rode out a possible tornado immediately after Dallas Voice’s mayoral runoff forum.

Anyhow, State District Judge Randy Clapp today ruled against transsexual widow Nikki Araguz and declared her marriage invalid, meaning she cannot receive death benefits from her husband, a volunteer firefighter killed in the line of duty last year. This ruling, a copy of which has not been released, was pretty much expected coming from a state district judge in Wharton, but Nikki Araguz says she’ll appeal the decision, and some observers say the case could wind up at the U.S. Supreme Court.

“We had a completely honest marriage, a 100 percent loving, honest marriage,” she said in a press release after the ruling. “I continue to grieve the loss of my husband and best friend. I consider this case not over and we will immediately file an appeal to the high court. With this ruling I continue to be reminded of the bias that exists toward transsexual and intersex people ignoring the laws of Texas that recognize their medical and surgical transition.

“Both myself and my family are grateful for the outpouring of understanding, kindness, sympathy, and support over the past year. I ask that you continue to hold me and Thomas in your heart and prayers,” Araguz said.

—  John Wright