Trans man wins first round in divorce battle

Posted on 01 Dec 2011 at 5:06pm

Judge declines to void marriage between Robertson, Scott in case that could set precedent, but wife’s lawyer downplays significance

Trans

WINNING ROUND 1 | Attorney Eric Gormly, right, says Judge Lori Chrisman Hockett’s decision to deny a motion to void the marriage between trans man James Allan Scott, left, and his wife Rebecca Louise Robertson is, as far as he knows, “the first time any Texas court has ruled that a transsexual man who marries a biological woman is in a legitimate marriage.” (John Wright/Dallas Voice)

JOHN WRIGHT  |  Senior Political Writer
wright@dallasvoice.com

When Rebecca Louise Robertson and James Allan Scott married in Dallas in 1998, Robertson was well aware and fully supportive of Scott’s status as a transgender man, court records indicate.

But when the couple split up after 12 years in 2010, Robertson sought to have their marriage declared void — based on the fact that Scott was born a biological female, and Texas law prohibits same-sex marriage.

Last week, a Dallas County district judge rejected Robertson’s motion for a summary judgment in the case, declining to void the marriage and allowing the matter to proceed as a divorce.

Attorney Eric Gormly, who represents Scott, said if the judge had declared the marriage void, it would have prevented his client, who’s physically disabled, from obtaining a fair division of the couple’s property.

Gormly, who specializes in LGBT law, called the ruling from Judge Lori Chrisman Hockett a significant victory for transgender equality in Texas.

“To our knowledge, this is the first time any Texas court has ruled that a transsexual man who marries a biological woman is in a legitimate marriage,” Gormly said.

Unsettled law

The issue of transgender marriage has made headlines in Texas of late, thanks in large part to the case of Nikki Araguz.

Araguz, a transgender woman, is waging a high-profile fight to receive death benefits from her late husband, Thomas Araguz III, a volunteer firefighter who was killed in the line of duty last year.

In May, a district judge in Wharton County ruled against Nikki Araguz. The judge 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.

Nikki Araguz has appealed the decision, and LGBT advocates believe Hockett’s ruling in the Dallas case could help the transgender widow’s cause.

In both cases, motions seeking to have the marriages declared void relied 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, critics argue that the Littleton decision is unconstitutional and isn’t binding in other parts of Texas.

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.

Meanwhile, Texas Attorney General Greg Abbott, a Republican who recently intervened in two same-sex divorce cases to try to block them, has thus far stayed out of the fray over transgender marriage.

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 couple was later able to marry in San Antonio, where the county clerk went by Littleton v. Prange.

A spokesman for Abbott’s office didn’t return a phone call seeking comment this week about Hockett’s ruling in the Dallas case. But Gormly said he’d welcome the challenge if Abbott chooses to intervene.

“Bring it on,” Gormly said. “Let him give it his best shot. … I’ve got to think that Greg Abbott has more important issues to deal with.”

Attorney Thomas A. Nicol, a divorce specialist who represents Robertson, said he’s already notified the AG’s office about Hockett’s ruling.

“I think certainly the attorney general, if it wants, can certainly jump in and say they have standing because it appears the statute is not being followed,” Nicol said.

He called Hockett’s ruling “disappointing” but downplayed its significance.

Nicol said for his motion to be denied, Gormly needed to show only that one material fact was in dispute. Hockett provided no explanation in her one-page ruling dated Nov. 21, and Nicol said he now expects the judge to fully address the transgender marriage issue at trial.

“It’s hardly groundbreaking,” Nicols said of Hockett’s denial of summary judgment, which cannot be appealed. “It’s a non-event except for these two litigants, so I’m a little bit surprised that press releases were issued at this stage of the game, because nothing’s happened yet.”

From house-husband to activist

This coming weekend, the 57-year-old Scott will move out of a five-bedroom, 3,200-square foot house in Cedar Hill — and into a small rental cottage. Scott is being evicted after the house, which the couple built together in 2001, went into foreclosure.

Scott, who’s disabled from scoliosis, said he was a faithful “house husband” — he did the grocery shopping, took care of the dogs and provided emotional support — while Robertson worked as a radiologist at the Dallas VA Medical Center. “The only thing I didn’t do was cook,” Scott said.

Scott and Gormly allege that in July 2010, Robertson opened a personal bank account and cut him off from the couple’s funds.

“After 12 years of marriage, she basically was trying to shove him overboard without a life jacket and sail off with her new boyfriend,” Gormly said.

After Robertson filed to declare the marriage void in September 2010, Scott filed a counter petition for divorce in February. In June, Robertson filed her motion for summary judgment.

Gormly said the divorce likely would have been final six months ago if it hadn’t been for the transgender marriage issue. Instead, both parties have racked up tens of thousands of dollars worth of legal bills.

Scott said the case is about money.

“She stands to inherit a good deal of money that she doesn’t want me to get my hands on,” he said. “I didn’t marry her for money. I married her because I loved her. I just want what I would have gotten in a regular divorce.”

Scott said he’s known he was transgender since an early age. In high school he cross-dressed and dated girls. He jokes that he kept waiting for a penis to grow and was disappointed when his mother told him he needed to start wearing a shirt after he developed breasts.

In 1998, months before he married Robertson, Scott had his breasts and ovaries removed. At the time the couple had already been together for 10 years.

Scott also obtained a birth certificate from his native Iowa identifying him as male. The only transitional step Scott hasn’t undertaken is a phalloplasty — an expensive, imperfect and dangerous procedure for female-to-male transsexuals.

Scott, who sports a full beard and mustache thanks to hormone therapy, said no one except his doctor’s office knew he was transgender during the time the couple lived together in Cedar Hill. He acknowledges this will change now, but says the case is about more than just him now.

“Most importantly if it keep kids from killing themselves because they’re different — that doesn’t need to be,” Scott said.

“I’m fully aware that after this case comes out in the press, I could be threatened, but at the moment it seems minor compared to what my wife has done to me,” he added. “It’s about equality for everyone.”

This article appeared in the Dallas Voice print edition December 2, 2011.

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