Reposted with author’s permission from ENDABLOG: http://endablog.wordpress.com/2010/08/02/i-hate-the-smell-of-sophistry-in-the-morning/
By Katrina Rose
[Cross-posted at Pam's House Blend]
Very early morning (at least in the CDT.)
This post is another update regarding the goings-on in the Texas case of Nikki Araguz, the trans widow of firefighter Thomas Araguz. Her marriage and identity are under attack by her deceased husband’s ex-wife (purportedly representing the interests of the children of Thomas and the ex.)
Even if you’re not otherwise following the case – or even if you from some reason are disinclined to sympathize with Nikki – you should, at some point in the next few minutes, be picking your jaw up off of the floor. Legal arguments don’t get much more twisted than the one that the lawyers representing the ex-wife of Nikki’s late husband pulled out today.
A key element of Nikki Araguz’s case to validate her marriage to her late husband Thomas is going to be a change to Texas law that happened pretty much under the radar last year:
TITLE 1. THE MARRIAGE RELATIONSHIP
SUBTITLE A. MARRIAGE
CHAPTER 2. THE MARRIAGE RELATIONSHIP
SUBCHAPTER A. APPLICATION FOR MARRIAGE LICENSE
Sec. 2.005. PROOF OF IDENTITY AND AGE. (a) The county clerk shall require proof of the identity and age of each applicant.
(b) The proof must be established by:
(8) an original or certified copy of a court order relating to the applicant’s name change or sex change
Acts 2009, 81st Leg., R.S., Ch. 978, Sec. 2, eff. September 1, 2009.
Essentially, it implicitly recognizes change of sex – and, in turn, that implicit recognition statutorily overturns whatever degree of legal authority that was embodied by the 1999 anti-transsexual decision in Littleton v. Prange, often – though wrongly – referred to as ‘the law in Texas’ regarding change of sex; in fact, it was a decision of but one of Texas’ fourteen intermediate appellate courts and no higher court ever made a substantive ruling in the case.
Again: Clearly, the law implicitly recognizes change of sex.
Here, however, is the spin that attorney Chad Ellis puts on that:
An attorney for the firefighter’s family, Chad Ellis, says the law mentions nothing about allowing someone to legally change gender.
It just acknowledges that such changes occur. But wait – it gets weirder.
Instead Ellis says it was designed for someone like Nikki who was born a man to apply for a marriage license to marry a female.
Uh huh. Riiiiiiiiiiiiiight.
Brain, meet hurt.
But this is typical of the anti-transsexual arguments made against laws recognizing change of sex. Even where the legislature in question is much more specific than Texas’ was in 2009, the argument will invariably be made: ‘Well, the legislature didn’t really mean it.’ Those are never the exact words, but that’s the argument – like that made by the dissenting judge in 2004 in Louisiana’s Pierre v. Pierre:
I am not convinced that because Louisiana law provides for a detailed procedure allowing a person’s name and gender to be changed on a birth certificate after a sexual reassignment surgery has been undertaken, see La. R.S. 40-62, the legislature has expressed its intent to confer an accompanying change in the legal status of a person who has chosen to alter his or her appearance.
The statute in play there?
PART II. BIRTH RECORD AFTER CHANGE IN SEX DESIGNATION
§62. Issuance of new birth certificate after anatomical change of sex by surgery
A. Any person born in Louisiana who has sustained sex reassignment or corrective surgery which has changed the anatomical structure of the sex of the individual to that of a sex other than that which appears on the original birth certificate of the individual, may petition a court of competent jurisdiction as provided in this Section to obtain a new certificate of birth.
B. Suits authorized by this Section shall be filed contradictorily against the state registrar in the judicial district court having jurisdiction over the parish in which the petitioner resides or over the parish in which the petitioner was born. A nonresident born in Louisiana shall file the petition in the parish of birth. The suit of any petitioner born in Louisiana shall be filed contradictorily against the state registrar. In the event the petitioner is married, the spouse shall also be a necessary party to the suit. To the extent that the petitioner’s name is to be changed, the district attorney shall also be a necessary party. In all cases the petition shall be accompanied by a certified copy of the petitioner’s original birth record, in which case the short-form birth certificate card shall not be sufficient.
C. The court shall require such proof as it deems necessary to be convinced that the petitioner was properly diagnosed as a transsexual or pseudo-hermaphrodite, that sex reassignment or corrective surgery has been properly performed upon the petitioner, and that as a result of such surgery and subsequent medical treatment the anatomical structure of the sex of the petitioner has been changed to a sex other than that which is stated on the original birth certificate of the petitioner.
If the court shall find that the evidence sustains the required proof, the court shall render a judgment ordering the issuance of a new birth certificate changing the sex designated thereon from that shown upon the petitioner’s original certificate of birth. The petitioner may in the same suit seek to have the name of the petitioner changed, and the court may render judgment in accordance with law upon this additional petition at the same time.
The legislature really didn’t mean it.
Any bets out there as to how far a similar argument would fly against an anti-trans statute?
Yes, your honor, we know what the ADA says about excluding transsexuals and we know what the senators said on the record in the Congressional Record about excluding transsexuals, but that’s not really what they really meant.
Yes, your honor, we know what the 1977 Tennessee anti-transsexual birth certificate amendment says about not allowing transsexuals to change their birth certificates and we know what the legislators said back in 1977 about not allowing transsexuals to change their birth certificates, but that’s not really what they meant.
Bar? Meet Dis.
Now, this isn’t to say that Nikki has a slam dunk now, even if – somehow – she gets in front of a judge (and eventually judges) who aren’t Rick Perry worshippers or who are otherwise into legal pretzel logic:
Nikki’s attorneys say at the very least she had what amounts to a common law marriage….
“She has a legal and informal marriage since September 2, 2009 up until the day her husband was taken,” said Phyllis Frye, Nikki’s attorney
It sounds as though the argument is that Texas law prior to 9/1/09 – whatever it was – would have prevented Nikki and Thomas from being married in Texas but that, due to the fact that Texas still allows for common law (informal) marriage, the 2009 change in the law created (for lack of a better phrase) a springing exectutory heterosexual relationship which, due to operation of Texas’ common law marriage requirements, became a marriage immediately thereafter.
Brain, meet more hurt – only this is the headache that should prevail.