Alex Blaze

Texas considers another transsexual-cissexual marriage

Filed By Alex Blaze | May 05, 2010 2:00 PM | comments

Filed in: Living, Living, Marriage Equality, Transgender & Intersex
Tags: el paso, identity, littleton, paperwork, rickhoff, Texas

Texas's AG, who recently stepped into a court case from a married, same-sex couple asking to divorce in Texas, is being asked to consider a marriage license for a cis woman and a trans woman. The trans woman, Sabrina Hill, was born intersex, was assigned male, and transitioned after learning about her body at age 28. Here's a bit on her paperwork:

In February of this year, Hill and another woman asked the El Paso County Clerk for a marriage license. As proof of identification, Hill offered a New York birth certificate identifying her as a male, a Washington State court order changing her name to Sabrina, and an Arizona driver's license that identified her as a female.

They've been together for 17 years but didn't want to get married until recently. Hill's wife needed access to Hill's veteran medical benefits, so they tried to get married in El Paso but the county clerk said s/he didn't know whether s/he could give this couple a marriage license and wrote the AG to ask which document is most important.

The couple went to another county in Texas and was able to get a marriage license. The clerk there says he uses the famous Littleton case as a guideline in marriages involving transsexual people:

Bexar County Clerk Gerard C. "Gerry" Rickhoff said the marriage license was granted based on Hill's birth certificate.

Rickhoff said Bexar County's decision is based on the Littleton vs. Prange court case out of San Antonio in 1999.

In that case, Christie Lee Littleton (born Lee Cavazos before a sex change) was married for seven years until the death of her husband, Jonathan Mark Littleton. Christie Lee Littleton filed a wrongful-death lawsuit against a doctor. A judge ruled against the lawsuit, deciding that Littleton, based on the original birth certificate, was a male and therefore could not be the spouse of another man.

Rickhoff said his office approves marriage licenses to same-sex couples, depending on their birth certificate, about once or twice each year.

"As I recall, he (the judge) said you are what you are at your birth," Rickhoff said. "I don't care what they appear to me or what manner of dress. We are familiar with them, and they are well received when they come to our office."

I'm glad they got the marriage that they wanted in the end, and I hope that the AG's re-election ambitions don't make him do anything to this couple.

This case does highlight the ways a bureaucracy can work on a different plane of reality than the rest of us human beings live on. Hill's birth certificate said "male," and that's how she got a marriage license in the end. But she wasn't "male" at birth; she was physically intersex. She told the El Paso Times, "I knew what I looked like and what I was, was not the same." Signs point to the fact that she was never a "man" or "male," not in her body or her mind.

It didn't matter what she is or her history or how she views herself, but only what her birth certificate says. Instead of a marriage between two people, theirs is a union of documents. That's incorrect; rather, applying the interpretation of Texas law Rickhoff used, all marriages are unions of people with birth certificates that match up. That famous scene where Richard Cohen, the ex-gay quack, puts his two index fingers together and says that that doesn't work? Not only does he not seem to know how gay men have sex, his interpretation isn't what the law there sees either. Rickhoff's looking for an "M" to go with an "F"; chromosomes, genitalia, identity, and appearances are unimportant.

Their marriage may be annulled if the AG decides that this is a way to show off his homophobic bona fides, but recognizing Hill as the woman she is, obviously, won't the solution if he does. Getting rid of arbitrary and slippery gender requirements for marriage licenses would work for them, but not for every couple who needs health care access. A single-payer health care system would get Hill's wife the treatment she needs when she needs it, regardless of whether they're still together or married when she needs it.

But there is only so much pressure a liberal society can put on people's bodies and relationships to mold them so that they look like what the state wants. And, really, that's what this comes down to: favoring certain bodies and relationships by using disciplining tools, like documentation that inherently simplifies reality like birth certificates and marriage licenses, to dispense privileges, like access to health care.


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It's an interesting case with a lot of intersections on different legal issues but I don't think it actually changes anything.

As I understand it, Ms. Hill, not having a legal change of gender nor a new or amended birth certificate issued (which according to the 2009 ruling would have legally made her a woman in Texas for the purposes of marriage) she is still legally male and, therefore, isn't really influenced by the Littleton vs. Prange ruling and wouldn't have any impact in overturning it (although it is, in a sense, overturned for a heterosexual couple involving a trans partner who has had a legal gender change and new birth certificate—because of the 2009 ruling).

Since the driver's license isn't sufficient proof of gender in terms of obtaining a marriage license (nor is her Washington State name change) they are irrelevant and it sounds pretty obvious the marriage will stand even if challanged, but Ms. Hill is legally considered male. I can't really feel happy about that or how it's somehow forcing Texas to change its rulings towards trans people or same-sex marriage.

I've known a number of couples involving two trans women (and also one involving two trans men) where one of the two retained their birth gender in order for them to get married. While I understand getting benefits can be lifesaving, it's also a horrible corner in which to be painted. Speaking as a woman who is trans (and have long since had my birth certificate changed) it would be a very painful position to be in. It's absurd anyone has to even think about these issues when just trying to get married to the person you love and have lived with for 17 years.

Hi Gina! :)

What is this 2009 ruling you are talking about?

Thanks!

Carol :)

One more thing... as long as Littleton vs. Prange exists, it seems entirely possible someone (a fundie, health insurance oinks or anyone contesting a will) could challenge the legality of the 2009 change and it's not at all clear whether that legal change would stand. I'd be interested to hearing from someone who knows Texas family law.

Gina, I don't practice law in Texas, but I am familiar with Littleton v. Prange. The court's conclusion that Ms. Littleton's sex as designated on her original birth certificate controlled for purposes of determining the validity of her marriage was based on its interpretation of Texas state law, not on the state or federal constitution. Therefore, the Texas legislature is free to amend Texas law to overrule Littleton by declaring that, if the sex on a person's birth certificate has been legally changed, the amended birth certificate, not the original, will control for purposes of marriage. However, despite a thorough search of Texas state statutes, I have been unable to find any provision making that change, despite what the Texas Tribune reported. (For those who are interested, that report can be found here: http://www.texastribune.org/blogs/post/2010/may/04/tribblog-ag-asked-rule-transgender-marriage/.) If such a change has, in fact, been made by the legislature, then, yes, a person designated male at birth whose birth certificate has been legally changed to designate her as female could legally marry a person designated male at birth, but whose birth certificate has not been changed, despite the ruling in Littleton.

For those who are interested, I have finally located the 2009 law change referred to in the Texas Tribune and other articles on this issue. Texas Family Code Section 2.005(b)(8) provides that, for purposes of issuing a marriage license, a county clerk can accept "an original or certified copy of a court order relating to the applicant's name change or sex change" as proof of the person's identity. http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.2.htm#2.005. That provision does not affect the issue in Ms. Hill's case, however, since the court order she presented only changed her name; it did not recognize her change of sex or gender.

Other portions of that statute say that the clerk can accept a driver's license or a birth certificate as proof of identity. The issue here arose because Hill's driver's license said female, while her birth certificate said male, so the clerk didn't know which one to believe.

I was interested, actually.

I thought that was a fairly exact way of wording it, the way the Texas Tribune did. If she just did a name change, then it doesn't really have any bearing on the matter at hand.

I do wonder why she presented a drivers' license as well. Did she need multiple forms of ID? I would have just stuck with the ID that would get me what I wanted.

That's what I thought, which makes me wonder why Rickhoff is still using Littleton as a guide when this newer law has been passed.

The Littleton vs. Prange case was based on chromosomes and not birth certificates. The judge assumed that Christie Lee had XY chromosomes and never did check either her chromosomes or her husband's.

@Carol:
"But in 2009, lawmakers changed the Texas family code to permit an applicant for a marriage license to use a sex change court order to nullify the birth certificate gender. " --Texas Tribune

Monica, unless I'm totally confused (I'm not a lawyer), let's say if a trans woman (who'd had SRS and legally changed her gender) married someone who's legally male that the 2009 ruling states they could be married in Texas. But, the Littleton vs. Prange ruling could be used to challenge that marriage because the court said sex (used interchangeably here with gender) is immutable based on chromosomes. Am I off on this?

Her birth certificate was not changed, but the judge based his decision on chromosomes. See: http://www.pfc.org.uk/node/370

"Based upon the doctors testimony, the court came up with four criteria for assessing the sexual identity of an individual. These are:

1. Chromosomal factors;
2. Gonadal factors (i.e., presence or absence of testes or ovaries);
3. Genital factors (including internal sex organs); and
4. (4) Psychological factors."

Monica, contrary to your statement, Ms. Littleton did amended her birth certificate post-SRS; however, that was not done until after the validity of her marriage had been challenged, and not before her marriage. (The court in that case stated, "During the pendency of this suit, Christie amended the original birth certificate to change the sex and name." 9 S.W.3d 223, at 231.)

Gina9223 | May 5, 2010 6:43 PM

Question: What would the legal standing be of someone who's a chimera with a chromosome of 46XX AND 46XY? Who was had applications of live birth for both female and male?
Would that person be forced to marry themselves? Would they be banned from marrying anyone?
What if they actually could get themselves pregnant?
When does reality trump prejudice?
I really want to know.
Because I’ve been waiting a lifetime for humans to show me that they can be humane.

In their rush to abandon trans people in ENDA and other issues a lot of gays, progressives, feminists, etc. tend to forget that we trans identified people personify the issues of importance to them. For example:

Gay marriage - every state in the US has what the public can see are successful gay marriages with the post-op TSs and their pre-transition spouses.

Gender variant behavior - this mostly applies to heterosexual men since gays and women can be nearly as gender variant as they want to be. But God forbid you're a typical straight male who wants to be a hairdresser, for example.

Worker's rights - Trans individuals are often fired despite decades of superior work. Not only do we need job protection but everyone should be protected from unfair firing.

Mental health issues - Most so-called mental illness is actually simply normal human variations. The crap we trans people put up with with psychiatrists points out issues other people have too.

Religious issues - Conservative religious bigots are running out of people to abuse. As we trans individuals gradually beat back these bigots everyone benefits.

Sexual orientation as a choice - Most people are bisexuals pretending to be entirely straight or entirely gay. The research is out there to show this if you doubt this comment. People will eventually be able to be openly bisexual. We trans individuals are leading the way in this movement.

A little appreciated aspect of transsexuality is we're also leading the way in demonstrating that it is OK to want to be traditionally male or female. Currently a woman who admits to enjoying dressing traditionally feminine is an outcast with other women. While the gender queer types are trying to force everyone into some sort of homogeneous state they see as ideal we trans types are showing people have the option of being openly masculine or feminine and not ashamed of it. Note that unlike the gender queers we're not trying to force others to our way of thinking. We're simply saying it is OK to be masculine or feminine just as it is OK to be variations in between.

Basically what I'm saying is giving fair treatment to trans individuals means everyone else benefits too.

Nerissa, you had me until Sexual Orientation as a choice. I'm sorry, but who are you to invalidate someone else's sexual orientation, even in the abstract sense? Just because I'm pansexual doesn't mean I think everyone else is. The "everyone is bi" meme is overused, and just contributes to biphobia.

Other than that, your post is spot on.

I got to thinking one night, I know that is dangerous but I was thinking that if a samesex couple marry in one of the states that allows the marriage. They intern move to another state that doesn't recognize the marriage and one of the people wants to get married to the opposite gender. Do they have to get a divorce or because it isn't recognized in that state, they can get married without divorce??