I posted a few months ago about a cissexual and a transsexual woman who wanted to marry in Texas 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.
Texas attorney general declines to define "man" and "woman"Follow @freedom2marry
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.