Legal Articles on the
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Gender Determination and Human Rights
Texas Appeals Court Rules a Man Can Never Become a
Rejects Wrongful Death Action by Transsexual Widow
from Lesbian/Gay Law Notes
ISSN 8755-9021 November 1999
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: email@example.com or firstname.lastname@example.org
A three-judge panel of the Texas Court of Appeals, sitting in San Antonio, has rejected a claim by a male-to-female transsexual that she has standing to sue for the wrongful death of her husband. _Littleton v. Prange_, 1999 WL 972986 (Oct. 27). In an opinion cruelly dismissive of the rights of transgendered persons to be able to function in the gender they experience as genuine, Chief Justice Phil Hardberger stated, "There are some things we cannot will into being. They just are."
The ruling affirmed a decision by Bexar County District Judge Frank Montalvo to grant summary judgment to Dr. Mark Prange, who accompanied his motion with a copy of the original birth certificate of the plaintiff, Mrs. Christie Lee Littleton, who was born Lee Cavazos, Jr., in 1952. Ms. Littleton began to experience her reality as female in early childhood, and by the time she was 17 was searching for a doctor to perform sex reassignment surgery for her. She enrolled in a program at the University of Texas Health Science Center that culminated in her sex reassignment procedure, legally changing her name in 1977 to Christie Lee Cavazos, and undergoing surgical procedures between November 1979 and February 1980. Doctors involved in her treatment offered affidavit testimony that she was a "true transsexual" whose gender dysphoria could only be resolved by living as a woman.
In 1989, Christie married Jonathon Mark Littleton in Kentucky. Jonathon was fully aware of her background. The marriage lasted seven years until Jonathon's death, allegedly due to the negligence of Dr. Prange. Christie brought an action under the Texas Wrongful Death Act, which authorizes a surviving spouse to seek compensation for the injury caused by the death of their spouse. Dr. Prange opposed the case by arguing that because Christie was born as a man, she could not be legally married to Jonathon and thus was not a surviving spouse qualified to bring a wrongful death action.
In his opinion for the majority of the panel, Justice Hardberger reviewed the history of litigation over the status of transsexuals in England and the U.S., and concluded that, apart from a 1976 New Jersey decision, _M.T. v. J.T._, 355 A.2d 204 (1976), there was no support in U.S. law for the proposition that a post-operative transsexual has legally accomplished a change of sex. Hardberger also emphasized the strong opposition in Texas to same-sex marriage, noting a recently-enacted statute specifically rejecting any recognition of same-sex marriages, and also cited the federal Defense of Marriage Act, which purports to relieve the states of any constitutional obligation to recognize same-sex marriages performed in other jurisdictions (although, curiously, Hardberger did no more than mention DOMA, avoiding any real analysis of its application to this case or possible constitutional flaws).
Expressing aversion to letting a Texas jury try to determine as a matter of fact whether Christie is a man or a woman, Hardberger insisted that the issue could be decided on summary judgment as a matter of law based on uncontested facts. This seems strange, since Christie's sex is a highly contested fact in the case. But for Hardberger, genetics is destiny, unalterably so. Based on the facts submitted by the parties, Hardberger concluded that Christie is a transsexual, and that through surgery "a transsexual male can be made to look like a woman, including female genitalia and breasts," but that the internal organs remain male and the male chromosomes are not changed by the surgery or other treatment. "Biologically, a post-operative female transsexual is still a male." Concluded Hardberger, "Some physicians would consider Christie a female; other physicians would consider her still a male. Her female anatomy, however, is all man-made. The body that Christie inhabits is a male body in all aspects other than what the physicians have supplied."
Hardberger refused to accord any significance to the fact that Christie had applied for and received a court order "correcting" her birth certificate to show her female name and gender, finding that her original birth certificate was correct when it was issued. "The trial court that granted the petition to amend the birth certificate necessarily construed the term `inaccurate' to relate to the present, and having been presented with the uncontroverted affidavit of an expert stating that Christie is a female, the trial court deemed this satisfactory to prove an inaccuracy. However, the trial court's role in considering the petition was a ministerial one. It involved no fact-finding or consideration of the deeper public policy concerns presented. . . The facts contained in the original birth certificate were true and accurate, and the words contained in the amended certificate are not binding on this court."
Concluded Hardberger, "We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse."
In a brief concurrence, Justice Karen Angelini premised her vote on the lack of legislative guidelines for dealing with transsexuals.
Dissenting, Justice Alma L. Lopez argued that Christie's original birth certificate was no longer a valid document upon which the court could premise any factual conclusion. Lopez insisted that Christie had introduced sufficient "controverting evidence that indicated she was female" to create a contested issue of material fact, thus precluding a summary judgment. According to Lopez, the absence of any controlling law in the jurisdiction argued in favor of holding a real trial, and not granting summary judgment and attempting to rule on difficult factual questions as a matter of law. "Under the rules of civil procedure," she wrote, "a document that has been replaced by an amended document is considered a nullity. . . Under this authority, an amended instrument changes the original and is substituted for the original. Although a birth certificate is not a legal pleading, the document is an official state document. . . . In this case, Christie's amended birth certificate replaced her original birth certificate. . . . As a result, summary judgment was issued based on a nullified document. How then can the majority conclude that Christie is a male? If Christie's evidence that she was female was satisfactory enough for the trial court to issue an order to amend her original birth certificate to change both her name and her gender, why is it not satisfactory enough to raise a genuine question of material fact on a motion for summary judgment."
The opinions are perhaps most notable for their complete avoidance of discussing the precise issue that was really before the court: how to construe the wrongful death act in order to effectuate its purpose of compensating a surviving spouse for the loss of her life partner? In this case, what should really matter is Christie's gender as she lived her life, and not her genetic sex. Christie lived as Jonathon's wife, with the legal sanction of the state of Kentucky, for seven years. As such, she was exactly the sort of person intended to be allowed a cause of action for the loss of a spouse. There are many state court decisions around the country acknowledging surviving spouse-type claims on behalf of persons who, it was determined, were in marriages that were legally defective, but the defects of the marriages were held in many instances not to overcome the strong policy reasons for allowing the claim. The court's failure to entertain any sort of sophisticated distinction between sex and gender role produced a decision that seems inconsistent with purposes of the wrongful death statute. A.S.L.
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