Littleton Filings
Second to the Texas Supreme Court
(provided by Phyllis Randolph Frye, Attorney for Christie Lee Littleton)


No. 99-1214

__________________________________________________________

THE SUPREME COURT OF TEXAS

__________________________________________________________

CHRISTIE LEE LITTLETON, Individually and as Next Heir of 
JONATHON MARK LITTLETON, Deceased
 
Petitioner-Appellant

V.

DR. MARK A. PRANGE
Respondent-Appellee

__________________________________________________________

MOTION FOR REHEARING, T.R.A.P. RULE 64

__________________________________________________________

 

Phyllis Randolph Frye
State Bar No: 07496600
Attorney for Petitioner
5707 Firenza Street
Houston, Texas 77035-5515
713-723-8368, fax same

Alyson Meiselman
Maryland Bar No: 213589249
Attorney for Petitioner
14400 Lake Winds Way
North Potomac, Maryland 20878
301-424-9314, fax same

_________________________________________________________

ISSUES PRESENTED

1. The summary judgment should be reversed because a fact issue exists concerning Mrs. Littleton's sex at the time of her marriage.

2. The court of appeals erroneously interpreted Health and Safety Code section 191.028, and based on its erroneous interpretation the court failed to consider relevant evidence that creates a genuine issue of material fact.

TO THE HONORABLE SUPREME COURT OF TEXAS:

This case is of great importance to Texas jurisprudence. This case called for the court to address one of the most fundamental aspects of a person's identity, a person's sex [1]. The trial court was called on to determine Mrs. Littleton's sex at the time of her marriage. While the determination of a person's sex is often a simple task, it is not always so. Hundreds of thousands of Texans are intersexed or have Androgen Insensitivity Syndrome.[2] See, e.g., Greenberg, J., Defining Male and Female: Intersexuality and Collision Between Law and Biology, 41 ARIZ. L.R. 265 (1999); the Intersex Society of North America, http:// www.isna.org; Simpson, J.L., Gender Verification in Competitive Sports, 16 SPORTS MEDICINE 305 (Nov. 1993)[3]. In these more difficult cases, it is often necessary to analyze numerous factors in determining a person's sex. The court of appeals developed a simplistic test[4] that focuses solely on the physical appearance of a child's genitals at birth[5] and ignores all other factors deemed relevant by medical experts.[6]

Moreover, this case deserves to be resolved on a full factual record developed during a trial on the merits. As the court of appeals' opinion indicated, there are only a handful of reported cases addressing this issue world wide. Given this shortage of authority, if allowed to stand, the court of appeals' opinion will be cited in common-law countries around the world.[7] Thus, the court of appeals' simplistic approach has the potential to adversely impact the legal sex of individuals around the world.[8] For this case to be cited around the world, all the while it violates a Texas statute, the Texas Constitution and the Constitution of the United States [9] and is at odds with the American Medical Association[10] and possibly the Human Genome Project[11], could be embarrassing for the state. To prevent such a travesty, this Court should reverse this case and remand for a trial on the merits because the court of appeals erred in ignoring the existence of numerous issues of material fact concerning Mrs. Littleton's sex at the time of her marriage, and more importantly, the court erred in adopting a test that is not supported by expert medical opinion.

ARGUMENTS

1. The summary judgment should be reversed because a fact issue exists concerning Mrs. Littleton's sex at the time of her marriage. 

The court of appeals erred in holding that Mrs. Littleton's sex at the time of her marriage could be determined as a matter of law. There was extensive evidence, including expert medical evidence, that Mrs. Littleton was female when she married Jonathon Littleton. In holding that Mrs. Littleton was male at the time of her marriage, the court stated it had "no authority" to develop a test to determine Mrs. Littleton's sex at the time of her marriage. Littleton v. Prange, 9 S.W.3d 223, 230 (Tex. App.– San Antonio 1999, pet. filed). 

The court of appeals cited no authority to justify its decision not to address the question presented. To the contrary, this is exactly the type of situation that calls upon our common-law tradition to fashion a solution. "[T[he common law is not static; its life and heart is its dynamism – its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems." Harrison v. Montgomery County Bd. Of Educ., 456 A.2d 894, 903 (Md. 1983). As Judge Benjamin Cardozo observed, "[A]ll history demonstrates that legislation intervenes only when a definite abuse has disclosed itself, through the excess of which public feeling has finally been aroused." BENJAMIN n. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 144 (Yale 1921). In contrast, 

the common law judge is not encumbered by any political need that a critical mass of public concern have been reached before justice can be entered in an individual case. The common law judge must consider and resolve a societal conflict when presented early in its maturation.

Stuart Madden, The Vital Common Law: Its Role in a Statuary Age, 18 U. ARK. LITTLE ROCK L.J. 555, 566 (1996).

Although the court of appeals disclaimed any authority to develop a test, it nonetheless effectively developed a test. Remarkably, the court of appeals held that a person's sex is immutable [12] and is determined by the physical appearance of the person's genitals at birth. Littleton, 9 S.W.3d at 231. This "test" is contrary to generally accepted medical knowledge. See, e.g., Brain Neurochemicals Tell a Female to Act Like a Female, Not her Gender, Cornell Biologists Discover, SCIENCE DAILY MAGAZINE, http;//www.sciencedaily.com/releases/2000/02/000217081522.htm (Feb. 17, 2000); Greenberg, J., Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 ARIZ. L.R. 265 (1999); Zhou, J.-N., et al., A Sex Difference in the Human Brain and Its Relationship to Transsexuality, 1 INT'L J. TRANSGENDERISM 1 (1997) (reprinted from 378 NATURE 68 (1995)).

Applying its "test," the court of appeals concluded that because Mrs. Littleton's birth certificate was ministerially marked male, at her birth, no other evidence could be considered. In adopting this test, the court of appeals ignored the factors that other common-law courts have previously held to be relevant in determining a person's sexual identity. Littleton, 9 S.W.3d at 227. For example, after considering the medical testimony of thirty years ago, the court in Corbett v. Corbett, 2 All E.R. 33, 44 (1970) concluded that there are four factors to be considered when assessing the sexual identity of an individual of an individual. These four factors were chromosomal factors, gonadal factors (i.e., presence or absence of testes or ovaries), genital factors (including internal sex organs), and psychological factors. A mere seven years later, 1977, the evolving medical evidence of twenty-three years ago, was recognized in the case of Ren'ee Richards. Richards v. US Tennis Assoc., et al., 93 Misc.2d 713, 400 N.Y.S.2d 267 (1977). It is only right that, at common law, the evolving medical evidence of today should be listened to as well.

The court of appeals "test"also violates well established summary-judgment law. It is the movant's burden to show that there is no genuine issue of material fact. Nixon v, Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49, (Tex. 1985); Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 555 (Tex. App. – San Antonio 1998, no pet.). Moreover, in deciding whether a fact issue exists, evidence favorable to the nonmovant must be taken as true and every reasonable inference must be indulged in favor of the nonmovant. Nixon, 690 S.W.2d at 548-49; Gilmartin, 985 S.W.2d at 555. Mrs. Littleton presented countervailing evidence on the status of her legal sex at the time of her marriage.[13] For example, Mrs. Littleton presented evidence that, at the time of her marriage, she (1) had no testes, (2) had a vagina, and (3) had been medically determined to be psychologically female.[14] Accordingly, a fact issue exists and summary judgment was improper. See, e.g., Mauricio v. Texas Builders Ins. Co., 929 S.W.2d 638, 640 (Tex. App.– San Antonio 1996, no writ) (fact issue presented when conflicting inferences may be drawn from summary judgment proof). Significantly, the court of appeals cites no authority that would allow it to judicially resolve the conflicting evidence in the movant's favor. Further, the court of appeals had no authority to even consider the voidability of the marriage by Fam. Code section 6.111 since Mr. Littleton was already dead. Thus, the summary judgment should be reversed and the case remanded for trial on the merits.

2. The court of appeals erroneously interpreted Health and Safety Code section 191.028, and based on its erroneous interpretation the court failed to consider relevant evidence that creates a genuine issue of material fact.

Health and Safety Code section 191.028 provides that a birth certificate can be amended if the record is "incomplete or provided by satisfactory evidence to be inaccurate." The court os appeals concluded that "the legislature intended the term ‘inaccurate' in section 191.028 to mean inaccurate as of the time the certificate was recorded; that is, at the time of birth." Littleton, 9 S.W.3d at 231. Based on this interpretation, the court of appeals refused to give any consideration to the fact that another court had heard expert evidence that Mrs. Littleton is female and concluded that there was satisfactory evidence that the information on her birth certificate was inaccurate. Id.

The plain language of the statute does not require an inaccuracy to exist at birth. Only when it is necessary to give effect to the clear legislative intent can a court insert additional words into a statutory provision. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981); H & C Communications, Inc. v. Reed's Food Int'l, Inc., 887 S.W.2d 475, 479 (Tex. App.–San antonio 1994, no writ); see also CODE CONSTRUCTION ACT, TEX. GOV'T CODE ANN. Section 311.021 (Vernon 1998). The court of appeals failed to provide any support for its conclusion that the legislature clearly intended to insert the words, "at the time of birth" in the statute. Moreover, the fact that a court found satisfactory evidence that Mrs. Littleton's birth certificate should reflect that she is female[15], is sufficient to raise a fact issue concerning Mrs. Littleton's sex. Thus, the summary judgment should be reversed and the case remanded for trial on the merits.

_____________________
Phyllis Randolph Frye
State Bar No: 07496600
Attorney for Petitioner
5707 Firenza Street
Houston, Texas 77035-5515
713-723-8368, fax same

_____________________ 
Alyson  Meiselman
Maryland Bar No: 213589249
Attorney for Petitioner
14400 Lake Winds Way
North Potomac, MD 20878
301-424-9314, fax same

CERTIFICATE OF SERVICE

ENDNOTES

[1] "Sex" used herein refers to both "sex" and "gender." In federal statutes and case law, they have become interchangeable as expressed in the federal Title VII, the federal Gender Motivated Violence Act, and the federal Price Waterhouse case. Schwenk v Hartford 2000 WL 224349, *9 (9th Cir.(Wash.)).

[2] The population of intersexed Texans ranges from 20,000 to 800,000. Most intersexed do not know that they are intersexed, especially those who are older, for whom testing was not available to them as adolescents or young adults, and who had no outward physical manifestations or reproductive fertility problems. The intersexed are those humans who have chromosome patterns other than XX or XY. For example, XYY, XYYY, XO, XXY, XXXY and any other of the numerous combinations currently identified. 

The number of Texans with Androgen Insensitivity Syndrome (A.I.S.) is much smaller but still significant at approximately 500 or more. These are the XY born vaginaed individuals. These and the 20,000 to 800,000 intersexed Texans will face voiding of their marriages and loss of benefits by application of the court of appeals sex test, as did Mrs. Littleton, retroactively.

The number of Texans who are transsexual is less well known. For this motion, the number of non-transsexual Texans who will be adversely effected if this decision remains is very large and significant in its own right.

[3] The International Olympic Committee (I.O.C.) has struggled for forty years to verify the sex of its female athletic competitors. I.O.C. history many examples of using chromosomes as the indicator of sex, which ultimately proved painful, inaccurate and abusive. In one example, a female athlete disqualified for having male chromosomes gave birth to a child a few years later. Other organizations of athletes have already left the chromosome test behind and are using the genital presentation test. The I.O.C. is steadily moving back to sex verification by genital presentation.

[4] The court of appeals legal sex test focused simplistically on XX and XY only.

[5] The marking of the sex of an infant is a ministerial act. It is a simple observation, a mere glance between the legs, that could be, non-negligently, in error. This ministerial act does not take into consideration, the intersex of the infant (unless mutilated, mixed or incomplete genitals also appear), the A.I.S. of the infant, or the brain's sexual identity manifesting itself after birth, as the stipulation of evidence showed for Mrs. Littleton. 

Newborns with mutilated, mixed or incomplete genitals face adverse effects within days of birth. Considering that the parents and surgeon do not consult the child's brain, surgical selection of genitals is little more than a coin toss, a 50-50 guess, and then intentionally recorded on the birth record as an otherwise ministerial act.

[6] The court of appeals legal sex test ignored everyone who is not XX or XY.

[7] The court of appeals' opinion is already being cited in probate cases in other states where the deceased had remarried, later died intestate and the children of the deceased wished to block the step-parent from taking.

[8] Defense lawyers in civil lawsuits now face a quandary. In future lawsuits over wrongful death (as was this case), intestate probate (e.g., other states are citing the court of appeals' "test"), divorce with large amounts of initially-separate but merged-into-community estates, divorce with divisive child custody issues, and any tort wherein damages are sought of loss of consortium, it will not only benefit the defense attorney, to simply void the marriage (as was done to Mrs. Littleton) by seeking the court of appeals' chromosome tests of both parties and hoping for a non-XX-XY occurrence, but be required. (Failure of defense lawyers in civil cases to offer such motions and appeal their denials will subject them to malpractice for failing to use all available tools.)

Such will pit the judicially-legislated genetic test against the legislated prohibition (Art. 9031). Such will also pit the judicial-voiding of a marriage against of a legislated policy of upholding a marriage (Fam. Code Sec 1.101). The cost of litigation will rise, and these issues will revisit this court in many future guises.

Another consideration is the adverse effect on the former-spouses of such voided marriages and on the children. What if Mrs. Littleton had not revealed her transsexuality and instead been the one to die, and her husband had sued for wrongful death? He, having done nothing but be true to his marriage vows, would have been summaried out with a now voided seven year marriage by application of the court of appeals' test? What of the other spouses, either not knowing of their own intersex or A.I.S. or of their deceased spouse's? The results are both mean and a legal surprise to potentially 800,000 Texas couples.

What about the children of these marriages, now voided by the court of appeals' sex test? Are they labeled as bastard? What would happen if the Littletons had adopted a child? Under Texas adoption laws, the child is presumed the biological child of the adoptive parents, contradicting the "biology is destiny" argument used by the courts below.

Will insurance rates be effected because genital presentation that is used to determine sex, upon which actuarial tables are based, is now to be supplemented with the court of appeals' sex test?

Will the federal courts reimpose themselves upon the Texas prison system because the genital presentation determination for sex segregation, upon which sex segregation is based, is now to be replaced with the Hardberger/Angelini sex test? A recent example of the problems raised by the Littleton decision in the criminal prison population, in Texas, is the case of Pamela Wright, formerly Paul Wright. Wright was undergoing sex correction procedures at the time of being sentenced to 50 years in prison for murder. Assuming that Wright has completed her genital corrective surgery, Wright, heretofore, legally a woman, serving her sentence in a woman's facility, faces the prospect of being moved to a male facility because the lower court's decision voids her legal correction of sex, voids the amendment of her birth certificate, and declares her to be another legally vaginaed male. And, assuming, arguendo, that Wright has not had genital corrective surgery, if she is placed in a male facility, she will have a cause of action under Section 1983, pursuant to the Eighth Amendment of the Constitution of the United States, prohibition against cruel and unusual punishment, and a possible additional claim under the Gender Motivated Violence Act, 42 U.S.C. 13981(c). Schwenk v. Hartford, No. 97-35870, 2000 WestLaw 224349, (9th Cir., Feb. 2, 2000).

Can the vaginaed Mrs. Littleton legally marry another vaginaed person if the chromosomes are XX/XY or some other non-matching pair? Applying the "test", this marriage would be a legal, opposite (chromosome) sex marriage, but it would appear genitally not.

What do we do with the intersexed and their variations on XX/XY? Does the "test" get broadened to say that more "Y's" is male, or no "Y's" is female? If so what of those intersexed with Turner's Syndrome who are born with vaginas and have only XY and XO, but no XX, chromosomes? 

[9] By ignoring the stipulated medical evidence and imposing its own " test" based on genetic information (chromosomes), the court of appeals violated V.T.C.A. Art. 9031 which prohibits (with exceptions for which this case does not factually qualify) the use of genetic information by a "(8) State agency", defined to include the "judicial branch of state government." Neither Mrs. Littleton nor her deceased husband have even had a chromosome test.

By granting and upholding a Summary Judgment based on the chromosome test, and by assuming that the vaginaed Mrs. Littleton is XY and the penised deceased Mr. Littleton was XY, the lower courts are requiring Mrs. Littleton to test herself and reveal that information in violation of Art. 9031.

The court of appeals' opinion also states that the federal Defense of Marriage Act (D.O..M.A.) Pub. L. No. 104-199, 110 Stat. 2419 (1996), is a basis for its testing of the validity of the Kentucky marriage. D.O.M.A. was enacted in September 1996. Mr. Littleton died in July 1996. Therefore, the use of D.O.M.A. violates the Texas Constitutional provision found in Art. 1, Sec. 16 banning retroactive laws. 

The trial court and court of appeals actions also violates Art. I, Sec. 9 (impairment of contract), Art. IV, Sec. 1 (full faith and credit), and Amendments I (freedom of expression and privacy through the penumbra of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), Amendment V (due process as applied to the States by Amendment XIV and Roe v. Wade), Amendment IX (certain rights retained by the people as applied to the States by Amendment XIV and Roe v. Wade), and Amendment XIV (due process and equal protection) of the United States Constitution.

[10] Such a requirement also violates five of the American Medical Association, Code of Medical Ethics, sections 2.132, 2.135, 2.137, 5.08. And 5.09, dealing with the confidentiality of genetic information.

[11] The lower courts also failed to consider that some women are XY and some men are XX. The Humane Genome Project has learned that EVERY PERSON has from 5 to 30 genetic errors.

[12] There are at least ten statutes in which the laws of Texas overcome, erase or rewrite immutable biological facts to bestow rights, responsibilities and privileges upon its citizens (Tex. Fam. Code, Sec. 2.004, 6.201, 101.024, 108.009, 151.02; Tex. Health & Safety Code, Sec. 192.088, 192.096; Tex Code Ann., Sec. 181.8; Tex. Penal Code, Sec. 25.02; Tex. Crim. Proc., Art. 63.0015). These legal fictions are, in turn, perpetuated in additional statutes, creating permanent irrebuttable determining factors in civil and criminal matters. Taken as a whole, these statutes provide ample precedent for the lower courts to determine that the amended birth certificate is a valid means of recognizing Mrs. Littleton as a female under the law.

[13] This marriage between Mrs. Christie Lee Littleton (Plaintiff-Petitioner-Appellant) and Jonathon Mark Littleton (now deceased) would have been valid even if it had begun in Texas rather than in Kentucky. To obtain the marriage license, Mrs. Littleton would have used her Texas Department of Public Safety Identification Card (the one she used in Kentucky). That ID was obtained by Mrs. Littleton in an open, legal and non-fraudulent manner. The Texas Department of Public Safety KNEW of her past when it issued her the new ID saying that she was female. Therefore, Mrs. Littleton would have been adequately identified as female for the purposes of marriage by action of the State's executive branch.

If they had married in Texas in this manner (which is the same manner they married in Kentucky), the State of Texas could not have invalidated their marriage? Tex. Fam. Code Sec 1.101 "Every Marriage Presumed Valid" states that unless expressly made void or voidable by Chapter Six of the Code, the policy of Texas is to preserve and uphold the marriage. No provisions of void or voidable found in Chapter Six apply to this case.

[14] There were also approximately twenty years of prior consistent State actions of the Texas Courts and Executive Branch regarding Mrs. Littleton's legal identity as female that should prevent the trial court and court of appeals from currently voiding the Littleton's marriage via judicial fiat about Mrs. Littleton's legal sex.

Mrs. Littleton's transsexuality was treated in a state government funded, university hospital, by state government paid, university staff. One-half of her surgery to correct what she had always considered in her brain to be a birth defect was paid by the State. 

Mrs. Littleton went to a State court and got a legal change of name. She took a verified letter from her physician as to her genital corrective surgery, and obtained a State of Texas, Department of Public Safety Identification Card listing her as female. When she met her husband in Kentucky and applied for a marriage license, the State of Kentucky gave full faith and credit to Mrs. Littleton's State of Texas, Department of Public Safety Identification Card listing her as female.

Similarly, the State of Texas GAVE full, faith and credit to the consummated (vagina-penis) marriage from the State of Kentucky. When they moved back to Texas, Mr. Littleton fell behind on his child support. The Attorney General of Texas pressured Mrs. Littleton, as the wife and sharing marital community property assets, to pay for Mr. Littleton's back child support with her income.

In addition, during their seven-year marriage, the federal government accepted their annual income tax returns as "married, filing jointly." The State of Texas benefitted from the distribution of those federal tax funds.

After this lawsuit was filed, Mrs. Littleton went to a Texas court and obtained an order amending her birth certificate under Texas Health and Safety code, Sec. 191.028.

[15] In the somber court procedure, the trial judge meets and examines the petitioning transsexual, to determine the sincerity and credibility of the petitioner, and reviews verified medical evidence that the anatomical and hormonal corrections are now in line with the petitioner's brain sense. This deliberative process is not a mere ministerial act.


April 26, 2000

TO THE SUPREME COURT OF TEXAS
P.O. Box 12248
Austin, TX 78711
512-463-1312 fax-1365

RE: CHRISTIE LEE LITTLETON, individually and next heir of JONATHON MARK LITTLETON, deceased v. DR. MARK A. PRANGE (Docket No. 99-1214)

The attached relevant 1990 federal authority, which just came to our attention, HELD: Under Texas law, where a veteran has anatomically changed his/her sex by undergoing sexual-reassignment surgery and has thereafter legally married a member of his/her former sex, his/her marriage partner may be considered the veteran's spouse for the purpose of determining entitlement to additional vocational rehabilitation allowance payable on account of a dependent spouse.

Sincerely,

_____________________
Phyllis Randolph Frye

_____________________
Alyson Meiselman

certificate of service

VA decision attached as per copy/paste from the http://christie.womynweb.net/legal6.htm  web site


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