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Judge rules against Nikki Araguz

This is unfortunate.

A judge has ruled that the marriage between a Wharton fire captain killed in the line of duty and his transgender wife was not legal, an attorney in the case said Tuesday.

Frank Mann III, one of the attorneys representing family members of Thomas Trevino Araguz III, said he had received notice from the office of State District Judge Randy Clapp that the judge ruled in his client’s favor.

“It is our understanding, having read a draft order circulated by Judge Clapp, that he has ruled that any marriage between Thomas Araguz and Nikki Araguz is void as a matter of law,” Mann said in a prepared statement sent by email a few minutes after 5 p.m., when the judge’s office was closed. Mann said he had a proposed order from the judge but was not allowed to circulate it.

[…]

Noel Freeman, president of the Houston Gay, Lesbian, Bisexual and Transgender Political Caucus, said by phone that the news was very disappointing, given that Nikki Araguz had presented legal documents, including her reissued birth certificate, showing she is female.

“Here you have a birth certificate, a legally binding document, which the court has chosen to completely ignore,” Freeman said. “The transgender community jumps through a lot of legal hoops — records of sex changes, amended birth certificates – to try to live the same life that everybody else gets to live. This is a very frustrating setback.”

See here for some background. This will be appealed, and we’re a long way from getting any kind of resolution. The issues here are a lot more complicated than they need to be.

Steidley, representing Nikki Araguz, argued that the marriage was legal because a 2009 change in the Texas Family Code allows a person to get a marriage license on the basis of a sex change recognized by the court.

But Burwell said the 2009 change in the family code did not overturn a 1999 Texas case, Littleton v. Prange, which is typically cited in Texas as the basis for determining a person’s sex. That case held that a person’s gonads, genitalia and chromosomes determine sex at birth.

The problem with that argument, of course, is that you can’t always determine someone’s gender at birth. Some people are born with the gonads, genitalia, and chromosomes of both sexes. What has usually happened is that they have surgery while they are still infants to assign one gender or another to them. Sometimes, the surgeon who did this guessed wrong about what gender the person “should” be, and that person corrects it later in life. Others have chosen to live with it. Different approaches are sometimes taken today, but the basic point remains that gender is more of a continuum than a binary option, and it’s more of a social construct than a biological one.

Our attempt to force the social construct of gender into our laws has led to contradictions, which is why the El Paso County Clerk asked AG Greg Abbott for an opinion about whether or not it was legal to issue a marriage license to a transgender woman who wanted to marry another woman. Going by the logic of “you are the sex you were at birth”, the answer is yes, but our laws against gay marriage say no. Abbott took the easy way out and declined to offer an opinion because of pending litigation like this, but the underlying issue remains unsettled, as the Lege did not address that 2009 law this session. The simplest answer to all of this, of course, is to quit dictating who can and cannot get married to whom and just allow any two consenting adults to get a marriage license. Do that and all these thorny legal questions magically disappear. Organized religions are still free to impose their own restrictions, but the state of Texas, and every other state, should not. In the meantime, our twisted reasoning has led to a situation where transgender folks could be not allowed to marry anyone at all. I would hope that a court will eventually rule against this unconstitutional mess. It’s just a shame that people will have to keep suffering for our poor lawmaking until then.

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