Littleton Filings
First to the Texas Supreme Court
(from records of Maloney & Maloney originally representing Christie Lee Littleton, Plaintiff)


No. 99-1214

___________________________________

IN THE
SUPREME COURT OF TEXAS
___________________________________

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

Petitioner

v.

DR. MARK A. PRANGE

Respondent

___________________________________

PETITION FOR REVIEW
BY CHRISTIE LEE LITTLETON
___________________________________

Dale Hicks
State Bar No. 09575430
Jon Hyde
State Bar No. 10370520
LAW OFFICES OF MALONEY & MALONEY
A Professional Corporation
200 Milam Building
115 East Travis
San Antonio, Texas 78205
Telephone (210) 227-7000
Telefax (210) 227-5714

Attorneys for the Petitioner

___________________________________

[names of all parties and Table of Contents omitted; all previous motions, 
stipulations, rulings, and evidence of the lower court were attached]
___________________________________

INDEX OF AUTHORITIES

Cases

Anonymous v. Anonymous, 325 N.Y.S. 2d 499 (N.Y Supr. 1971)

Atascosa County v. Atascosa County Appraisal District, 990 S.W. 2d 255 (Tex. 1999)

Brady v. Fourteenth Court of Appeals, 795 S.W. 2d 712 (Tex. 1990)

Castillo v. Hidalgo County Water District No. 1, 771 S.W. 2d 633 (Tex. App. - Corpus Christi 1989, no writ)

Davidson v. Aetna Life & Casualty Insur. Co., 420 N.Y.S. 2d 450 (N.Y. Sup. 1979)

Doe v. Lackner, 145 Cal. Rptr. 570, 80 Cal. App. 3d 90 (Cal. App. 1978)

Doe v. Minnesota Dep't of Public Welfare, 257 N.W. 2d 816 (Mn. 1977)

Ex Parte Boetscher, 812 S.W. 2d 600 (Tex. Crim. App. 1991)

M.T. v. J.T., 140 N.J. Super. 77, 355 A. 2d 204 (App. Div.), cert. denied, 71 N.J. 345, 364 A. 2d 1076 (N.J. 1976)

Owens Corning v. Carter, 997 S.W. 2d 560 (Tex. 1999)

Richards v. United States Tennis Ass'n, 400 N.Y.S. 2d 267 (N.Y. Supr. 1977)

Sheffield and Horsham v. United Kingdom, 27 E.H.R.R. 163 (1998)

Smith v. Rasmussem, 57 F. Supp. 2d 736 (N.D. Iowa 1999)

United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170 (1966)

Statutes

U.S. Const., Art IV, 1

Tex. Gov't Code Ann. 22.001(a)(1), (3), and (6)

Tex. Health & Safety Code Ann. 191.028

Tex. Health & Safety Code Ann. 192.011

Other Authorities

Lea Brilmayer, Credit Due Judgments and Credit Due Process and Full Faith and Credit in the Interstate Context, 70 Iowa L. Rev. 95 (1984)

Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz L.R. 265, 1999

Friedman Pfaffl & Astrid Junge, Sex Reassignment. Thirty Years of International Follow-up Studies After Reassignment Surgery: A Comprehensive Review, 1961-1991 (translated from German into American English by Roberta B. Jacobson and Alf B. Meier) (1998)

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STATEMENT OF THE CASE

Nature of the Case: Wrongful death and survival action where alleged medical malpractice resulted in the death of the Petitioner's husband.
Trial Court: Honorable Judge Frank Montalvo, 288th Judicial District Court of Bexar County, Texas
Trial Court Disposition: Take-nothing summary judgment
Parties in Court of Appeals: Plaintiff/Appellant - Christie Lee Littleton
Defendant/Appellee - Dr. Mark A. Prange
Court of Appeals: San Antonio Fourth Court of Appeals
Phil Hardberger, Chief Justice joined by Justices Alma Lopez and Karen Angelini
Citation for Court of Appeals' Opinion: Littleton v. Prange, --- S.W. 3d ---, 1999 WL 972986 (Tex. App. - San Antonio Oct. 27, 1999) (designated to be published)
Court of Appeals' Disposition: Summary judgment in favor of the Defendant/Appellee affirmed.
Majority opinion - Chief Justice Hardberger
Concurring opinion - Justice Angelini
Dissenting Opinion - Justice Lopez

___________________________________

STATEMENT OF FACTS

This case is a medical malpractice action brought by Christie Lee Littleton, as a surviving spouse under the Texas Wrongful Death and Survival Statutes. CR 76

Petitioner was born Lee Edward Cavazos, Jr., on March 29, 1952, in San Antonio, Texas. In 1973, after years of struggling with her sexual identity, Petitioner enrolled in the gender dysphoria program at the University of Texas Health Science Center ("UTHSC"). APP TAB 7, CR 99. UTHSC doctors Donald Greer and Paul Mohl diagnosed Petitioner as a "genuine male to female transsexual," meaning that she is "psychologically and psychiatrically female before and after sex reassignment surgery." APP TAB 7, CR 101. Over the next four years, Petitioner underwent phsychological and psychiatric treatment by a number of UTHSC physicians, was prescribed numerous treatments and hormones designed to complete the feminization process, and, ultimately, underwent three surgeries to complete her sex reassignment. APP TAB 9, CR 40-41. During the course of her treatment at UTHSC, Petitioner's name was legally changed from Lee to Christie Lee. APP TAB 7, CR 99-100, CR 33.

Petitioner's last procedure was performed in February 1980. Following that operation, she no longer had a penis, scrotum and testicles, and instead had a constructed vagina and labia. In addition, she had breast construction surgery. Petitioner's doctors at UTHSC state that following these surgical procedures, Petitioner's anatomical and genital features allow her to function sexually as a female, and that she is medically a woman. APP TAB 7, CR 101. Christie Lee Littleton has "never functioned as a male before or after her surgery." APP TAB 9, CR 41.

Kentucky Marriage to Jonathon Mark Littleton

In the summer of 1989, Petitioner met Jonathon Mark Littleton, a Kentucky resident, while she was living and undergoing treatment for a medical condition in Kentucky. CR 84. During their Kentucky courtship, Christie Lee told Jonathon about her background and the fact that she'd had sex reassignment surgery. APP TAB 9, CR 41.

On December 27, 1989, the couple were issued a Marriage License by the Commonwealth of kentucky, County of Fayette. They were legally married on December 31, 1989, in a ceremony officiated by Richard Newsome, a minister of Christian Faith Center. APP TAB 8, CR 42. Once married, they continued to reside together in Kentucky until March 1990. Christie Lee and Jonathon then moved to San Antonio, where they lived as a married couple until Jonathon's death in 1996. CR 84.

On July 29, 1996, Jonathon Mark Littleton died suddenly, after receiving medical treatment for Respondent, Dr. Mark A. Prange ("Prange"). CR 78.

Procedural Background

Petitioner brought a medical malpractice suit for money damages under the Texas Wrongful Death and Survival Statutes against Prange in the 288 Judicial District Court of Bexar County, alleging that he negligently cared for her husband of seven years and, thereby, caused his death. On July 23, 1998, Respondent moved for Partial Summary Judgment on all claims asserted by Petitioner, CR 19.

On August 7, 1998, Petitioner filed an Original Petition to Amend Birth Certificate pursuant to Tex. Health & Safety Code Ann, 191.028 and 192.011. An Order was entered changing the designation of sex on Petitioner's Birth Certificate from male to female and the name on the Certificate to "Christie Lee Cavazos." APP TAB 12, CR 75.

On October 14, 1998, the Trial Court granted a Take Nothing Summary Judgment and Dr. Prange's Motion to Sever the claims of Christie Lee Littleton from the remaining claims in the case. APP TAB 1, CR 190-192. On November 5, 1998, Christie Lee Littleton filed a Motion to Modify or Reform Judgment to clarify the extent of the Judgment against her. The Trial Court entered a Modified Final Partial Summary Judgment and Order on December 22, 1998. APP TAB 2, CR 202-204. A divided Fourth Court of Appeals affirmed. The Court of Appeals held as a matter of law that Christie Lee Littleton is a male and that she was not entitled to bring a cause of action as Jonathon mark Littleton's surviving spouse. APP TAB 3 AT P. 17.

SUMMARY OF THE ARGUMENT

The decision below essentially bars a transsexual from ever legally effectuating a change of sex. For most of us, sexual identity is simple and uncomplicated. The Court of Appeals' narrow view of what determines one's sex ignores millions of people for whom life is not as simple as others of us wish to make it.

The Court's holding also defies the well-established medical view of "gender dysphoria" and transsexuality. Without any basis in the statute it was called upon to interpret or any other grounds in Texas law, the Court of Appeals refused to acknowledge Petitioner's medical condition and the result of her treatment.

Moreover, the Court of Appeals denied Petitioner standing as a surviving spouse even though her sex reassignment surgery took place through a State hospital's treatment program, and another competent Texas Court had ordered a change of name and sex on Petitioner's Birth Certificate. Once the record evidence and the consensus of medical science on Petitioner's medical condition is acknowledged, it follows that Petitioner is a woman, was married to a man in a valid and binding Kentucky marital ceremony, and is entitled to pursue her claim under the Texas Wrongful Death and Survival Statutes ("the Statutes").

Review is also appropriate because the Court's construction of the Statutes implicates important statutory and constitutional principles. The Court of Appeals undermined the policy objectives of the Statutes by construing them to deny Petitioner any means of recovery for the loss of her husband of seven years. Moreover, the Appellate Court interpreted the Statutes in a manner that invalidates a marriage that was legally contracted in another state. In so doing, the Court impermissibly imputed an unconstitutional intent to the legislature.

ARGUMENT

I.  THE APPELLATE COURT ERRED IN HOLDING THAT A TRANSSEXUAL MAY NEVER LEGALLY EFFECTUATE A CHANGE OF SEX.

The Court of Appeals was presented with a narrow summary judgment question regarding the application of the Texas Wrongful Death and Survival Statutes to a marriage validly contracted in another state. Rather than addressing that issue, the Court instead focused on the questions of whether a physician can change the gender of a person and whether Texas law allows marriages in Texas involving transsexuals. The Court cited no Texas authority that directed it to delve into those issues, nor that could serve as the basis for deciding the questions in the way that it did. Its entire analysis was unmoored from the actual legal question before it. In fact, the Court should have simply focused its analysis on the effect of Petitioner's lawful Kentucky marriage under the Statutes.

Having veered off to the general question of whether a transsexual can effectuate a change of sex, the Court further compounded its error by ignoring the medical evidence before it. The Court's holding conflicts with contemporary medical understanding. It also fails to account for the State's role in facilitating Petitioner's change of sex and endorsing that change through a Court-ordered amendment of the Birth Certificate to reflect her current sex.

II.  THE OPINION BELOW CONFLICTS WITH MEDICAL EVIDENCE CONCERNING THE TREATMENT OF TRANSSEXUALS THROUGH SEX REASSIGNMENT SURGERY.

"[T]ranssexualism is a very complex medical and psychological problem which is generally developed early in life." Doe v. Minnesota Dep't of Public Welfare, 257 N.W. 2d 816, 819 (Mn. 1977). The condition is characterized by a need to live and be accepted as a member of a different sex, usually accompanied by the desire to make the body as congruent as possible with the preferred sex through surgery and hormone treatment. "By the time an individual reaches adulthood, the problem of gender role disorientation [known medically as "gender dysphoria"] and the transsexual condition resulting therefrom are so severe that the only successful treatment known to medical science is sex conversion surgery." Doe, supra, 257 N.W. 2d at 819.

Sex conversion surgery, also known as sex reassignment surgery, is viewed by the medical community as an effective and proven treatment for gender dysphoria. See, e.g., Friedman Pfaffl & Astrid Junge, Sex Reassignment. Thirty Years of International Follow-up Studies After Reassignment Surgery: A Comprehensive Review, 1961-1991 (translated from German into American English by Roberta B. Jacobson and Alf B. Meier) (1998). The efficacy of sex reassignment surgery in treating transsexuals has been recognized by numerous Courts. [1]

Given the contemporary understanding of gender dysphoria as a medical condition that is treatable through sex reassignment surgery, the decision below defies logic and law. The Court of Appeals' refusal to legally recognize the consequences fo surgery designed to remedy the psychological turmoil suffered by transsexuals ignores the facts of Petitioner's life and her medically supported existence in the world as a woman in every practical respect. The Court cites no provision of Texas law that supports its decision to contravene medical science. Ct. Richards v. United States Tennis Ass'n, 400 N.Y.S. 2d 267, 272 (N.Y. Supr. 1997) ("When and individual . . . undergo[es] a sex reassignment, unfounded fears and misconceptions . . . must give way to the overwhelming medical evidence that this person is now female.") As Petitioner's doctors have stated: "If an individual has a female psychic gender and undergoes a sex reassignment operation that person would be considered female." APP TAB 10, CR 56. Petitioner, having successfully undergone that procedure long before her marriage, "is a member of the female sex for marital purposes." APP TAB 11, CR 45.

Ina addition, the cases purportedly cited in support of the Court's holding that a transsexual can never effectuate a legal change of sex are either (1) clearly distinguishable, see Anonymous v. Anonymous, 325 N.Y.S. 2d 499 (N.Y Supr. 1971) (involving pre-operative transsexual who fraudulently concealed existence of her male anatomical organs from her male spouse prior to their marriage). (2) have been called into doubt by more contemporary medical understanding of gender dysphoria, see e.g., Sheffield and Horsham v. United Kingdom, 27 E.H.R.R. 163 (1998) or (3) actually undermine the Court's holding, see M.T. v. J.T., 140 N.J. Super. 77, 355 A. 2d 204 (App. Div.), cert. denied, 71 N.J. 345, A. 2d 1076 (N.J. 1976) (upholding validity of marriage of post-operative transsexual).

The decision below is further flawed in its almost exclusive focus on Petitioner's chromosomal makeup in determining her post-operative sex. Reliance on chromosomal factors as the overriding criterion for determining sex is misguided, particularly where the totality of the circumstances warrants consideration fo other relevant factors. See Richards, supra, 400 N.Y.S. 2d 267, 272-73 (rejecting exclusive reliance on sex-chromatin test for determination of sex of post-operative transsexual). Further, from a biological perspective, chromosomes alone are an insufficient measure of sex because many individuals have a chromosomal makeup that differs from the typical pattern of either XY or XX. See Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L.R. 265, 279-286 (1999).  [2] Moreover, the fact that there is nothing at all in the record about the Petitioner's chromosome makeup underscores that the Court of Appeals' holding was based on its own suppositions and mot on medical science.

III.  THE APPELLATE COURT'S CONSTRUCTION OF THE STATUTES UNDERMINES THEIR POLICY OBJECTIVE.

In addition to misconstruing the Statutes to require an analysis of whether the Petitioner is a man or a woman, the Court below erroneously interpreted them in a way that contradicts principles of statutory construction. The decision below cannot stand because it undermines the very policy that the Statutes were designed to effectuate. The purpose of the Texas Wrongful Death Statute is to provide a mechanism for a decedent's survivor to recover for "intangible injuries resulting from their loss of future pecuniary benefits, care, maintenance, support, services, advice and counsel from the deceased." Castillo v. Hidalgo County Water District No. 1, 771 S.W. 2d 633, 635 (Tex. App. Corpus Christi 1989, no writ). The Appellate Courts' interpretation of the Statutes denies Petitioner any possibility of recovery for the loss of her husband of seven years, leaving her to fend for herself as an aggrieved widow.

The Court rejected the basic tenet of statutory construction that a statute should not be interpreted in a manner that defeats the very purpose of the legislation. See Atascosa County v. Atascosa County Appraisal District, 990 S.W. 2d 255, 258 (Tex. 1999).

IV.  THE APPELLATE COURT'S INTERPRETATION OF THE STATUTES IS CONTRARY TO FEDERALIST PRINCIPLES OF FULL FAITH AND CREDIT AND INTERSTATE TRAVEL.

The Court of Appeals also rejected the principle that Courts should interpret statutes in a manner to avoid constitutional infirmities. Owens Corning v. Carter, 997 S.W. 2d 560 (Tex. 1999). The Court's construction is faulty because it assumes that in enacting the Statutes, the Legislature intended to undermine constitutional principles of full faith and credit and the fundamental right of interstate travel. See Brady v. Fourteenth Court of Appeals, 795 S.W. 2d 712 (Tex. 1990) ("Statutes are given a construction consistent with constitutional requirements, when possible," because the legislature is presumed to have intended compliance with state and federal constitutions.).

The Appellate Court's construction undermines the full faith and credit that must be accorded by one state to a marriage legally contracted in another state. The United States Constitution provides that "Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State." U.S. Const., Art. IV, 1. Marriage clearly qualifies for recognition. [3]

The Court's construction also unnecessarily poses the constitutional concern that the Statutes erect an unconstitutional barrier to interstate travel, a right that "occupies a position fundamental to the concept of our Federal Union," United States v. Guest, 383 U.S. 745, 757, 86 S. Ct. 1170, 1178 (1966), and that "includes within it the right to reside in whatever state one wishes." Ex Parte Boetscher, 812 S.W. 2d 600, 603 n.4 (Tex. Crim. App. 1991). The Court's construction penalizes Petitioner merely for exercising her basic right to travel from her marital home in Kentucky to Texas.

CONCLUSION AND PRAYER

At base, this case involves a routine claim under a Texas law that is designed to ameliorate the tragedy of a wrongful death. The Court of Appeals stood the policy underlying that law on its head. Instead of properly focusing on the medical malfeasance of Respondent, the Courts below entertained prior facts that should not bear on the case at all, to completely deny the petitioner any possibility of recovery from the loss of her husband. Worse, the Court augmented the mental anguish already incurred by a bereaved spouse by dishonoring her seven year marriage in order to enable a physician to escape potential malpractice liability.

The Petition for Review should be granted.

Respectfully submitted,

MALONEY & MALONEY, P.C.
200 Milam Building
115 East Travis
San Antonio, Texas 78205
Phone (210) 227-7000
Fax (210) 227-5714

by ______________________

DALE HICKS
State Bar No. 09575430
JON HYDE
State Bar No. 10370520
Attorneys for the Petitioner

ENDNOTES [footnotes in original]

[1] See Smith v. Rasmussem, 57 F. Supp. 2d 736 (N.D. Iowa 1999) (holding that Medicaid benefits must be provided for sex reassignment surgery because it is accepted by professional medical community as effective and proven treatment for gender dysphoria and was medical necessity for patient); Davidson v. Aetna Life & Casualty Insur. Co., 420 N.Y.S. 2d 450, 453 (N.Y. Sup. 1979) (rejecting claim that sex reassignment surgery is merely "cosmetic surgery" and holding that "sex change operation is of a medical nature and is feasible and required for the health and well-being of the plaintiff," and that expenses for such surgery must be covered by plaintiff's medical insurance policy); Doe v. Lackner, 145 Cal. Rptr. 570, 80 Cal. App 3d 90 (Cal. App. 1978) ("[T]ranssexualism . . . is an illness, albeit realtively rare, in which the only known treatment is radical sex conversion surgery."); Doe v. Minnesota Dep't of Public Welfare, supra. 257 N.W. 2d 816 (holding exclusion of transsexual surgery from eligibility for medical assistance payments void).

[2] For example, one in 500 to 1,000 "males" is affected by Klinefelter Syndrome, a condition in which a person possessing testes and a penis has two or more X chromosomes, suggesting a female genetic makeup, Greenberg, supra. 41 Ariz. L.R. at 283.

[3] The creation of a marriage is a "public Act" both because it occurs pursuant to a statutory scheme and is performed in most states by a public or legally designated official, and because the marriage is itself an act - a res, that is, a thing or status - created by a State. The marriage license and certificate are the "Records" of a validly contracted marriage. Finally, marriage partakes of important elements of a "judgment." See Lea Brilmayer, Credit Due Judgments and Credit Due laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context, 70 Iowa L. Rev. 95, 97 (1984).


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