Alex Blaze

Texas attorney general declines to define "man" and "woman"

Filed By Alex Blaze | August 10, 2010 7:00 PM | comments

Filed in: Marriage Equality, Politics, Transgender & Intersex
Tags: Attorney General, marriage, Nikki Araguz, paperwork, Texas, transgender, transsexual

I posted a few months ago about a cissexual and a transsexual woman who wanted to marry in TexasN_Transgender_Widow.jpg and found a county clerk willing to do it after being told to wait in El Paso County. The county wanted to get the state Attorney General's opinion on what documentation is necessary to demonstrate that one is a certain gender, since a new Texas state law lists 19 different documents that can be used and sometimes people have documents that say one gender and others that say the other.

Well, the Texas AG decided not to issue an opinion, citing the Nikki Araguz case still pending in court:

Legal analysis revealed the existence of a legal gray area around this particular issue, raised by recent changes adopted by the Texas Legislature. Up until 2009, the identity and gender of a marriage license applicant was established through a birth certificate.

However, during the 81st Session, the Texas Legislature expanded the list of documents acceptable to establish proof of identity and age for purposes of obtaining a marriage license. Section 2.005(b) of the Texas Family Code lists the nineteen documents approved and, to make things more difficult, all are given equal legal weight. This is important for transgender individuals, as conflicting information on various personal documents may arise not from fraud, but because of sex reassignment surgery, and so transgender applicants should be able to self-identify their gender, as opposed to a court doing it for them.

In a letter dated on August 6, 2010, the Texas Attorney General's Office notified the El Paso County Attorney's Office that they will refrain from answering any questions or issuing an opinion, and in fact are closing the file on this request. The reason provided for this action is that issues included in the opinion request are the subject of pending litigation recently filed in the 245th District Court of Wharton County, In the Estate of Thomas Trevino Araguz III, Deceased, Cause No. 44575. The letter further states that, once that litigation is concluded, the El Paso County Attorney could submit another request if these questions remain unresolved.

One would think that if you're going to set up a legal regime in which identity as a certain sex is necessary to access certain benefits that you'd at least describe what sort of paperwork is needed to prove eligibility.

This reminds me of the new anti-immigrant law in Arizona in that they didn't specify exactly what proof of citizenship or legal residency is necessary or sufficient. Some folks just assume that you can just look at a person and tell which of the little boxes they're supposed to fit in, whether it be man or woman, transsexual or cissexual, documented immigrant or undocumented immigrant, Real American or Not American. The world's not that simple, but their reliance on simple categories comes out when pressed on a given topic.


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“What makes a man a man, a woman a woman” [L. DaVinci]

Being Transgender and Intersexed…
Honestly, the cis-gender’s who can only see the gender binary and makes the depreciative remarks I hear every day against anyone who doesn’t ‘fit’ the gender binary…
Seriously, one second they say the nastiest things and if you confront them with facts from the non-binary world they always say we (or I) simply don’t exist.

I would prefer for the Texas courts to really look at Transgender and Intersex identity and the subsequent issues with fresh eyes and come to a determination that there is no gender binary. That people can have one of numerous medical issues can be allowed to self identify their gender.

After all, I know what I am but what are you?
I’m a little bit of column A, some off of page 2 and a surprise from the backroom with sparklers.

Except in Texas.

The question is, should "one of numerous medical issues" be a requirement?
That's not a question I'd really like to answer. It should be sufficient, certainly - but should it also be necessary?

How do IS and TS people solve the massive injustices they face, without harming TG people?

"Incrementalism" and "we'll solve that one later" give me a bad taste in my mouth. We, who have been persecuted by those who don't identify with us and don't understand us should be the last to chuck others under the bus.

I've been accused of all sorts of things just because I see the rights of Transgendered people who I don't identify with at all as being equal to my own. Gays too for that matter, I'm not Gay either.

obviously any answer to this question would impact the state's defense of marriage act...but it would also be interesting to see how this would play out on a federal doma level if this couple is allowed to marry and they want to file taxes as "married-filing jointly".

Do we have a list anywhere of what these 19 different documents that are acceptable are? I live in texas, would be curious to know more. A link to a list/site anyone?

It also would be nice to point out that Greg Abbott's reluctance to rule on this case may be grounded in the fact he's running for reelection as well vs. Dem AG candidate Barbara Ann Radnofsky

So is this a good thing? Or does the Atty Gen think that the Araguz case will be an auto-win for conservatives and that he need not bother his little head with it since the black hats will win without him?

All such cases would be solved if (when!) marriage in every state in the union is simply defined as between one human being and another.

Angela Brightfeather | August 11, 2010 11:20 AM

Look, those in the know in the Transgender Community have been trying to tell GLB activists for years, that when they say that marriage must be between a man and a woman, OK, then tell us what is or passes as a man or a woman. Phyllis Frye in Texas has been pushing this idea for years by getting FtoM lesbians to legally marry genetic women and then challenging the State of Texas on not calling that a legal marriage.

Trans people have been seeing the SCOTUS, time and time again, refuse to hear challenges that would make them have to decide on what is a man or a woman, as in the Christy Littleton vs Texas case, and they have refused every time. Exactly what does it take for the GLBT community and proponents of SSM to realize where the Achilles Heel in the argument is? Does someone have to hit them over the head with the obvious?

Then there are the people inside the Trans community who have a vested interest and huge investment if they are post op, or working in that direction, in not wanting any court to define what is a man or a woman. Because it might mean that their own hard work and pain in achieving their self identified and true gender might be compromised in the process of recognizing officially that their own binary values have been some kind of illusion all along. The loudest hue and cry on this is usually coming from those who believe that they are women from conception, but born in the wrong body. I can certainly understand why it is that they would not want the SCOTUS to set a definition on what is a man or a woman, because the end result would probably be an impossible job, even for Judge Scalia when they get into the medical challenges and the variations that naturally occur when it comes to such things and chromosomes.

Actually, it has always been the Trans people who are not committed to any one gender over the years, the gender diverse and gender queers who have been screeming that they want a decision on what is a man and a woman, and that has only increased since DOMA, because they know that no court wants to define exactly what it is, because they know they can't. There will always be exceptions and challenges from the medical community and others, no matter what they do. So the best thing to do is to always do nothing when it comes to making such a judgement. RUN AWAY, RUN AWAY!!!! As Monty Python might put it.

If that isn't a clear signal in an argument that ends in sure defeat of those who insist there is a difference between a man and a woman that justifies opposite sex marriages, then what does it take for SSM activists to wake up about this and realize that opening that front and argument for debate against the Religious Right wing nuts, would only make them look stupid and descriminatory. Most likely at the expense of every woman who was ever born or will be born. We already now that the chromosome issues would be thrown out as evidence right away because of the many variables that exist naturally. Anyone who is not XX or XY would immediately be forbidden to be able to be married to anyone. Existing marriages would be invalidated and chromosome testing would have to be done in every instance of anyone wanting to get married. (Very expensive) So now we would have to move on to the vagina vs penis argument, and that would last about five seconds in court because intersex people would have to be forbidden to marry anyone, as well as copious testimony from SRS doctors who would claim that their satisfied and fully orgasmic SRS patients are men and woman, and the RR would object to that. Of couse, other features such as breasts, etc. would not even be considered for obvious reasons.

So, the only place to turn on this judgement is between the ears, where the decision truly should be made and the outcome would be, "SCOTUS defines a man and a woman as whatever that individual beleives they are, at any given time in their lives. Legal marriage exists, only between two consenting adults who can prove they are human beings." (Of course, this also might also be ruled as discriminatory in the future if humanoid life is found on other planets.) But for intents and purposes, you can roll up the sidewalks and stop fighting for SSM because now you've got it.

That might allow GLBT people to start throwing their money and time as actiovists in another direction, like in keeping their jobs by passing ENDA and other forms of discrimination that affects eveery GLBT person, including those who never wanted to get married in the first place.

VOILA!!!!!

This AG opinion is SWEET!

While one can gripe about the fact that the legislature didn't lay out a procedure for change of sex, this is Texas, after all!

As the attorney for the executive branch of the government of the (Great?) State of Texas, the AG simply said that there is now -- in light of the revisions to Texas Family Code -- no clear legal guidance for defining someone as EITHER man or woman. It's an open question. And it is!

Asking if he's fur us of agin us isn't the issue here. It's an unresolved issue of law, and that's just what he said.

LOL. I didn't look at it that way. It does open up state law to county-by-county interpretation.

Kathy Padilla | August 11, 2010 1:43 PM

"Sec. 2.005. PROOF OF IDENTITY AND AGE. (a) The county clerk shall require proof of the identity and age of each applicant."
-snip-

"(8) an original or certified copy of a court order relating to the applicant's name change or sex change;"

Seems pretty clear to me.

Tough question, huh? Obviously, marriage equality would have been the solution to this mess. I don't think the understanding that this is NOT a same sex marriage can be taken lightly, however. Kudos for having this article in close proximity to Mercedes post. Hard to define sex. Sometimes what sex isn't is as important as what it is. Sex is a diverse phenomenon. There are many categories that everyone fits into in many different ways, not just "trans" people and everybody else. Gender? I am working on that. It takes practice. I want to sing like Natalie Wood or was that Marnie Nixon?

I have to admit not following the story or the comments in the May article on the Sabrina Hill case linked to in this post when I replied, earlier. My, my this is even more complicated than I realized. I was distracted by the huge photo of Nikki Araguz. I didn't realize the complexities of Hill's health insurance problems. I don't think I would change much of what I wrote but I wouldn't fault her for doing what she thought was necessary, I don't think. Good for the A G, maybe. Obviously, Nikki's case is the one that will set precedent. I am still not sure I comprehend this, the implications being as subtle as they are. It is interesting, however, that back in May one can find the references to the Texas Family Code way before they became an issue in the Araguz case. I also realized, belatedly, that Nixon's first name is spelled Marni, not Marnie, and definitely not Richard.

Angela Brightfeather | August 11, 2010 4:55 PM

It's pretty fundamental to me as an activist, that if the SCOTUS won't define what a man or a woman is, how the heck can the religious right define it? If they are afraid to rule on it, that should be the signal for everyone to start pushing them to do exactly that, or to come out and say, "sorry, but we don't want to and can't do that."

So if the SCOTUS can't, has the Catholic Church taken a crack at it? How about the Mormon Church or the Southern Baptists?

Personally it is my opinion that if any one of them ever did try to define what is a man and a woman, they could be easily debated on the merits of any definition they come up with so long as their definition relegates and defines them as a binary fact. I'm at least willing to listen to any exceptions that they may have, outside of "it's God's will, poor things" for people who are other than XX and XY.

We know that the Pope is wiling to pass Canon Law against Transsexuals, but what does he see in the future for Intersex people? Maybe he just denies the fact that they even exist. Or maybe God just hasn't told him about people like that yet.

The implications the situation in Texas presents are very complicated but I've thought about it, for however little it's worth. Sorry, but after familiarizing myself with the Sabrina Hill situation a little more I couldn't let my comments stand as is.

The A G's decision is on hold. It wouldn't be on hold for very long if Nikki Araguz had violated the terms of her probation. Then, in Nikki's case, the "matter of law" would have to be resolved very quickly. It is as important for Nikki Araguz to be recognized as a woman as it would be for any other woman, regardless. There will be a decision one day, as far as the marriage questions go. It will not remain "an unresolved matter of law indefinitely.

If Sabrina Hill is in dire need because of her's or her partner's health I couldn't judge her for what she might have to do, even if she has to take advantage of the unfortunate outcome of the Littleton-Prange decision. If they prevail, I would hope there would be the understanding, among more enlightened people, at least, that this would not actually be what could be rightly considered a marriage between a man and a woman and a very bad way to get a same sex marriage in through the back door at the same time.

Regardless of the need for everyone to secure their rights, it would be heartening to see people advocating for a positive outcome in the Araguz case regarding Nikki Araguz' recognition as a woman. I suppose I am naive in the hope there could be mutual respect and good faith between women of post operative history and others. Judging by the discord I've witnessed here, I suppose I should be more guarded.

Yeah, we have the right on many things provided by the law but in the end its human who get's violated by another human.