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

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.