Dr. Jillian T. Weiss

Action Alert: Texas Legislature Mulls Voiding Marriages, And One In Particular

Filed By Dr. Jillian T. Weiss | May 10, 2011 9:30 AM | comments

Filed in: Action Alerts, Marriage Equality, Politics, Transgender & Intersex
Tags: intersex, marriage, SB 723, Texas, transsexual

Texas law allows transsexual and intersex individuals to get married upon the presentation of a court order recognizing sex reassignment.the-fireman-s-wife.5188409.40.jpg

This change honors the self-identification rather than basing access to marriage licenses on sex assigned at birth. The Texas Senate is considering Senate Bill 723 to prevent district clerks from accepting the court order recognizing a sex change.

At the same time, Texas resident Nikki Araguz is enmeshed in a horrific lawsuit after the tragic death of her beloved husband, Thomas, a firefighter, who perished while fighting a fire a little under a year ago. Thomas's family is seeking to declare that their marriage was void and that she is not a woman, because she was born with an intersex condition known as Androgen Insensitivity Syndrome, and had surgery to correct that condition and corrected her birth certificate to reassign her sex as female. Of course, the motivation is money -- Thomas's ex-wife wants his survivor's benefits.

SB 723 appears to be a mean-spirited attempt by Texas Senator Tommy Williams aimed straight at Nikki's heart.

The bill was thought to be sidelined for the year, but it appears there is a last-minute attempt to sneak it through. Don't let it happen!

If you're from Texas, you should call your legislator now and ask that they vote no on SB 723. More info, and a trailer from the documentary "Courting Nikki," after the jump.

According to Meghan Stabler, the 'intent calendar' has just been updated for today's Texas Senate calendar to bring SB 723 to a vote. This means the bill could be voted on as early as today or remain on the "to vote" list for the rest of the week.

Senator Tommy Williams (R) authored and introduced S.B. 723 to amend Section 2.005(b), Family Code, by removing "or sex change" in reference to documents acceptable in proving an applicant's identity for obtaining a marriage license.

If this bill passes, an argument can be made that the legislature intended to nullify the marriage of Nikki Araguz and other transsexual and intersex people.

The video below, a trailer for the documentary "Courting Nikki," explains more.

Here's a blog that explains more about Nikki's situation. Alex has posted before on SB 723 and the Araguz case.

Use this to find your State Senator, then please call their office and urge your Senator to prevent this bill, SB 723, from reaching the Senate floor, and to vote "no" if it does.

Via Legislative Queery: "For even more extra credit please consider calling Sen. Carlos Uresti, who is likely the crucial 20th vote needed to bring this bill up for consideration. His capitol office number is (512) 463-0119."

Monica Roberts at Transgriot has set out the addresses and phone numbers of the Democratic Senators who need to be alerted to this attempt to invalidate Nikki's marriage. As Monica said so eloquently, "let them know the eyes of trans Texans and our allies are STILL upon them." The names below are linked to their email addresses.

Mario Gallegos (512) 463-0106

Wendy Davis (512) 463-0110

Rodney G. Ellis (512) 463-0113

Kirk Watson (512) 463-0114

John Whitmire (512) 463-0115

Carlos I. Uresti (512) 463-0119

Juan "Chuy" Hinojosa (512) 463-0120

Judith Zaffirini (512) 463-0121

Royce West (512) 463-0123

Leticia R. Van de Putte (512) 463-0126

Eduardo A. (Eddie) Lucio, Jr. (512) 463-0127

José R. Rodríguez (512) 463-0129

Here's a trans 101 note: Nikki Araguz identifies as transsexual and intersex, as well as female. It would be insensitive to refer to her as "transgender," which is an umbrella term that includes many types of gender variance.

img src via Houston Press

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Thanks for the Trans 101 note, Jill. Hopefully that'll quell some of the transexual vs transgender "debate" that always seems to spring up every time her name is mentioned while ignoring the much bigger issue entirely.

I wish it were so, Bil, but I've already gotten some emails with caps and exclamation points. Sigh...

Respecting Nikki is entirely the issue.

Nikki wasn't even invited to the ceremony which was held to place her late husband's name on a memorial plaque for fallen firefighters.

I would like to make a few points based on my own understandings.

Thomas's family is seeking to declare that their marriage was void and that she is not a woman, because she was born with an intersex condition known as Androgen Insensitivity Syndrome, and had surgery to correct that condition and corrected her birth certificate to reassign her sex as female.

The intersex people I know feel it is very important to make the distinction between what is a variation and what is 'a condition". The word "condition" pathologizes what is actually a variation, thereby providing justifications for surgical and medical interventions which are not carried out with the intersex person's informed consent.

Unfortunately, Nikki doesn't seem very well informed about her situation. She insists that she was born with a birth defect that she had corrected, which is often a standard transsexual narrative. Having a transsexual history, myself, I understand the need to characterize unwanted genitalia in such a way that provides a rationale for the need for surgery. At the same time, however, I believe it is important to make a distinction between transsexualism and intersex which often doesn't involve body incongruence.

Being diagnosed as needing sex assignment reinforcing surgery in adolescence, and never receiving it, causes me to believe to believe that my post surgical well being is related to gonadal/hypothalamic incongruence. I look at my situation from a holistic viewpoint, however, rather than an isolated compulsion involving one body part. Just about all the intersex people I know feel much differently than I did.

I don't know if the State of Texas really understands what it is getting itself involved with as far as insisting that sex is determined at birth. There are many cases, not involving transsexualism, where it isn't. There are numerous cases of people having their sex assignments changed within the first two years of birth that I am aware of. The whole subject of sex assignment is really a very complicated one in a significant number of instances. Complicating that fact, is the situation of a much larger amount of people who do not actually want a legal change to the opposite sex but who have had sex/gender reinforcing medical treatments imposed upon them without being carefully informed of the consequences of such treatments. I am thinking of testosterone treatments for xxy people and, in some cases, even mastectomy that has a significant impact on a person's physiology and, in the case of treatment for "gynecomastia", their anatomy. Also, PCOS is estimated at five percent among women assigned female at birth. I don't think estrogen and androgyn inhibiting medical treatments are that uncommon among female assigned people, either.

As far as "identity" is concerned,

Nikki Araguz identifies as transsexual and intersex.
I don't think intersex or transsexualism are identities. One is either born intersex or not, although there is much disagreement over what constitutes intersex, ranging from definitions by people with agendas, such as Leonard Sax's making the incidence, 1 in 5,000, exceedingly rare; the former ISNA's definition of 1 in 2,000 which is felt by many people to being misleading (all one has to do is consider the incidence of xxy is 1 in 500 to reach that obvious conclusion); the Fausto-Sterling, Blackless reckoning that almost 2 in 100 people are born neither typically male or female; right down to Sharon Preves count of 4 in 100.

I strongly feel that transsexualism is a fairly rare variation that people are born with, not an identity. All in all, I definitely wouldn't identify Nikki as "transsexual" or "a transsexual", either. She's a woman. No law will change that fact. There are a significant amount of women who are assigned female at birth who are born with testicles. What makes the whole situation so bad is the constant referencing of expressions and notions such as "condition", "birth defect". Doctors often use that as a rationale for removing the very part of the anatomy of intersex people, such as AIS females born with testicles and also born with the gene making them resistant to the effects of testosterone, keeping them from having the ability to produce testosterone that will aromatize into estrogen, thereby providing them with self produced estrogen obviating the need for hormone replacement therapy to maintain their feminine characteristics and bone health.

Good point that she identifies as a woman, Edith. I think one can also identify as transsexual, as well as a woman, just as one can identify as Jewish, or Asian or a cancer survivor, as well as a woman. I will make that point in the main post clear.


I hadn't read through the blog or taken the time to review the video when I reacted the way I did. I re-read what I wrote. I don't think I'd change much. All these things are complex and multi-faceted. I am hoping for a reply to my other questions. I don't know if anyone really has any of this sorted out in a comprehensive and coherent way. I guess that's a big part of the problem. As far as "gender variance" is concerned, I am aware of both intersex and transsexual people who would contest the validity of that concept. Variance from what, is usually the question. The criterion seems arbitrary and varies from culture to culture, time period to time period. All I can think of is Mel Brooks and Robin, Men in Tights.

I meant Robin Hood, Men in Tights, sorry.

SB 723 appears to be a mean-spirited attempt by Texas Senator Tommy Williams aimed straight at Nikki's heart.

Make no mistake, the bill is an attack against transsexuals in Texas. However, I really wish that people would not do our opponents' work for them by giving them inaccurate anti-trans talking points.

The bill would NOT (okay, we are talking about Texas courts here, so should not might be more appropriate) have any effect on Nikki and Thomas's marriage.

SECTION 2. The change in law made by this Act applies only to an application for a marriage license submitted to a county clerk on or after the effective date of this Act. An application for a marriage license submitted before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

SECTION 3. This Act takes effect September 1, 2011.

Arguably, whether this thing passes or not, its existence is an admission by the author of the bill (and, if it does pass, the entire Legislature) that the 2009 change to Texas law that this bill is seeking to eliminate did indeed sanction marriages such as Nikki's and Thomas's. (That having been said, opposing it is still what needs to be done.)

You are entirely correct that the language of bill itself would have no effect on Nikki's marriage. In addition, I agree that it is incorrect for anti-trans advocates to argue that a repeal of the 2009 act indicates that the legislature intended the pre-2009 act to exclude transsexual people or anyone correcting their sex via court order. However, there are indications that the repeal would be used to make such an argument in the courts, wrong as it may be.

The arguments about legislative intent are long and complicated, and many have written law reviews on the subject, including me. I won't repeat them here. But it's not giving anything away to anti-trans advocates to point out how this repeal could be misused in a court setting.

I think we agree on the "could be" part. Good news: Phil Hardberger is no longer on the bench anywhere in Texas; bad news: the judges who Dubya and Ricky Goodhair have inserted into the Texas judiciary since 1999 (along with those who have bought their way onto the bench via 'election') are, for the most part, worse.

But, the title of your piece: "Texas Legislature Mulls Voiding Marriages, And One In Particular," to me does concede that an intent of SB723 is to void Thomas's and Nikki's marriage.

Thanks for the reply Kat,

I've read Littleton v Prange and your paper in the Deakin Review a couple or few times.

I missed the "or" down at the bottom of the text of the bill you linked to.

There is no way to conclude that the judge's conclusion in Littleton is anything more than an opinion and an ignorant one at that. The concept of "male chromosomes" and "female chromosomes" should be continuously challenged not because of my opinion on the matter but because of the facts that are continually overlooked by people bogged down with the implications of ignorant legal opinions such as the Littleton v Prange decision. How many women with "no womb, cervix or ovaries " would end up having their marriages annulled and end up as legally male as a result of Hardberger's reasoning? One in five thousand declared female at birth are born with vaginal agenesis, some of those with a y chromosome and testicular tissue. Did the way the U S constitution was written change the fact that people who are fully human were not counted that way because they were different?

I somewhat answered one of my questions by simply going to Dr. Becky's site.

There are two styles of the birth certificate, a short form or abstract and a long form. The short form is printed from the computer system and will only show the new name, date of birth, place of birth, sex, and parent’s names. The long form is a photocopy of the original birth record filed with our office at the time of birth onto our certified paper that will show the amendment underneath.

Your answer is not clear, regarding most of my questions. I understand it might not be because your understanding isn't clear but, rather, because THE answer is just not clear. Am I wrong to assume, that one could still marry in Texas because the long form birth certificate is not required to obtain a marriage license but that it just wouldn't be upheld in a court of law if it were challenged?

I had a few other questions, one in particular concerning when the question is flipped around from a man marrying a woman to two women or two men marrying where one has had sex change surgery. I understand you are a lawyer and get paid well for your consultations so I won't push too hard on that question or the other ones I have. Thanks, again, for pointing out the "or". I am still left a little confused whether it applies to all the items on the list or just the last two.

I wrote:

"Did the way the U S constitution was written change the fact that people who are fully human were not counted that way because they were different?"

Should read:

" Did the way the U S constitution was written change the fact that all people are fully human because some were not counted that way because they were somewhat different?"

I think I replied to the wrong comment, Kat.

Anyway, I believe I should add that I think legal scholars and those involved in DSM reform should enlarge their focus and investigate the medical profession's role in sex determination. The question of what exactly constitutes sex difference is a very complicated one. The sex/gender dichotomy is in the way. It leads to notions of gender identity disorder which is reinforce by the APA and WPATH. What's been written regarding the pathologizing nature of the Chicago Consensus Statement on the Management of Intersex is particularly important to understand as is how important it is for doctors to insists that any rejection of a sex assignment is the result of a relatively new invention of the concept known as "gender identity disorder".

There are many reasons pediatric endocrinologists and urologists, as well as endocrinologists, in general, have a vested interest in maintaining the validity of their original sex assignments and characterization of a rejection of those assignments as a "gender identity disorder". Many people are put on sex reinforcing hormones at puberty and remain on them for life. Some are diagnosed as needing surgery at adolescence or all through their childhood and, sometimes, beyond. The implications of a doctor reinforcing a gender that does not match a child's sense of self can be an awful liability problem. I know these facts are underestimated by people trying to understand the legal ramifications of sex assignment rejection. Sex is not a cut and dried phenomenon.

I don't understand this. The law can't possibly require all the documentation listed. I don't think everyone has a pilot's license or license to carry a handgun. Is a birth certificate required to obtain a marriage license? I thought Texas will change sex designations on birth certificates. Is the birth assigned sex still listed on the ones that are changed? Would a driver's license and a passport be adequate documentation to provide evidence for purposes of obtaining the marriage license? Sorry but this is very confusing and it varies state by state. I, also, wonder how people who are born in states like Tennessee that won't change sex designations on birth certificates are affected in states that do allow people with transsexual histories to marry people of their birth sex, particularly the states that will not allow them to marry those who were assigned the sex opposite to the one they were assigned at birth.

Edith, there is an "or" between the next-to-last and last items on the list. So, no, the law does not require all of the items.

I thought Texas will change sex designations on birth certificates.

See Littleton v. Prange, 9 S.W.3d 223 (Tex. App. - San Antonio 1999, pet. denied).

Eric Payne | May 10, 2011 4:02 PM

Could this law, if passed, really be limited? Couldn't this law be used as a basis in court for other fights, possibly - say - allowing a county clerk the discretionary power to void/not issue business licenses to those businesses with which that clerk has a personal objection?

If the government is going to give permission to a non-elected government employee to ignore court rulings and decisions... how can anarchy not be the ultimate result?

The renewed push is coming because the companion bill in the House died last night. It hadn't been voted out of committee before the midnight deadline.

Sen Williams must get SB 723 voted out of the Senate before May 20 and through the entire House before May 25.

The session ends on May 30 so keep those calls and e-mails opposing SB 723 coming.

california panda | May 10, 2011 6:25 PM

Hello! It's Texas. If you want to know what that means, read this:

Thank you Jillian for gracefully honoring Nikkis's wish not to be labelled transgender. Now if all the larger LGBT and Transgender organizations would put pressure on Glaad to change its media guide to promote the idea that its definetly not okay to call transsexuals or intersexed trangender unless they self identify as that this stupid bickering could end.Also to include that not all transsexuals and interesexed are to be considered as automatically LGBT affiliated or affirming. That many post-ops and some pre-ops wish not to be labelled as anything but what they are men and women.The vast majority of TS people and people with a TS history that I know that don't wish to be labelled as transgender or even LGBT affiliated are LGBT allies.But they're frustrated that their right to self identify and medical privacy is being denied by the very groups that should know better like WPATH and GLAAD.

Ugh. I can't believe this bill is picking up steam, what with the Republicans not caring about social issues anymore, just finances and economics. It's almost as if the conventional wisdom is incorrect!