It’s way more complicated than it needs to be.
Here’s a stumper: Is it legal for a transgender person—say, someone whose original birth certificate says “male,” but who identifies as a woman—to get married to a man who identifies as a man?
The law in Texas is unclear in ways that have been a nightmare for Nikki Araguz, a transgender Houston woman whose husband, Thomas Araguz, died in 2010 while serving as a volunteer firefighter in Wharton County. Araguz has been fighting in court since her husband’s death for survivor’s benefits, and [recently], her case was heard by the 13th Court of Appeals.
Why is the law unclear?
In 2005, Proposition 2 passed in Texas. That constitutional amendment said that ”marriage in this state shall consist only of the union of one man and one woman.” Some folks, including 329th District Judge Randy Clapp (using precedent established by the 1999 Texas Court of Appeals decision in Littleton v. Prange, look at Nikki Araguz and see a man; thus, the marriage for which she seeks benefits as her husband’s widow was a same-sex marriage that is not recognized in Texas.
This is complicated, though, by legislation authored by State Rep. Lois Kolkhorst (R-Brenham). That legislation, which passed in 2009, allowed that a court order establishing a change in sex was an acceptable document when presenting identification to obtain a marriage license. If proof of gender reassignment surgery is sufficient to grant one a marriage license, then it stands to reason that the marriage of Nikki and Thomas Araguz is legal in Texas.
The hearing on that appeal happened last week, but the ruling has no timetable yet. And in the meantime, confusion continues to reign. In 2010, Sabrina Hill, a woman who was born intersex (that is, with both male and female genitalia) and declared male on her birth certificate though she identifies as female, applied for a marriage license to marry her girlfriend. A judge’s order, following gender-reassignment surgery, recognized Hill as a woman, but when applying for the license, Therese Bur, the El Paso clerk couldn’t determine whether to use Hill’s birth certificate and issue a license as a heterosexual marriage, or to use the court order and deny it as a same-sex marriage. The clerk turned to Attorney General Greg Abbott for direction, and Abbott declined to weigh in. (Hill and Bur instead went to San Antonio,where they were granted a license.)
It’s probably for the best that they did—if they’d waited for a final decision on Nikki Araguz’s case to settle things (she’s on her second appeal, having lost once in 2012), the now 63-year-old Hill would have no end in sight, regarding how long she’d be waiting.
The article in question is from a few weeks back; I had it in my queue but never got around to publishing my post. I’ve written about this subject before. As the story notes, Rep. Kolkhorst has made two attempts to amend her 2009 bill in a way that would essentially forbid transgendered folks from getting married. To me, it’s very simple: If two adults love each other and one or the other is not engaging in fraudulent behavior, they should be allowed to get married. That would clear up this confusion once and for all. Until that enlightened day arrives, I fully support any couple that wants to take advantage of the situation as it now stands. Congratulations, Nikki and William. May the courts and the Legislature not rain on your happiness.