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Gender Determination and Human Rights
The claimant, Christie Littleton ("Mrs. Littleton"), was a transwoman who successfully underwent gender re-assignment treatment including surgery in accordance with recognized clinical standards between 1977 and 1980. In 1989 she married one Jonathan Mark Littleton ("the deceased") in Kentucky in 1989 and lived with him until his death in 1996. The deceased died while receiving medical treatment from the defendant, Dr. Mark Prange ("Dr. Prange"). Mrs. Littleton brought proceedings against Dr. Prange as the deceased's widow under Texas's wrongful death and survival statute. Dr. Prange applied successfully to the 288th Judicial District Court of Bexar County to strike out her claim on the ground that she had not been married lawfully to the deceased. Mrs. Littleton appealed to the Texas Court of Appeals. It appears from the judgment of Hardberger CJ and Angelini J that in Texas the facts pleaded by the respondent are taken to be true and all reasonable inferences are indulged in that party's favour. In Texas, unlike England, it was possible for Mrs. Littleton to amend her birth certificate and she took advantage of that opportunity. It was common ground that Mrs. Littleton was and always had been psychologically and psychiatrically female. An eminent plastic surgeon and an eminent psychiatrist were prepared to testify that following gender reassignment surgery she was also medically female. However, there was no reference to the Dutch research that made such an impression on Ward LJ.,
Mrs. Littleton argued that:
She argued that this case raised issues of public policy which could properly be decided by a jury.
- Dr. Prange had failed to discharge the burden of proving that Mrs. Littleton was male at the time of her marriage to the deceased either as a matter of fact or law;
- he had failed to prove that her marriage was void; and
- the judgment should be reversed on the grounds that she had raised a triable issue.
The Court dismissed the appeal (López J dissenting). Mrs. Littleton was not the deceased's widow and could not bring a fatal accident claim under the wrongful death statute. Section 3 (a) of the Defence of Marriage Act defined marriage for federal purposes as "a legal union between one man and one woman" and that was also the law of Texas and Kentucky. As a matter of law Mrs. Littleton was male and as a male she could not be married to another male. Even though Mrs. Littleton had been surgically and chemically altered to be a woman and lawfully changed her name and birth certificate, the common law would not treat her as if she had been born a female. The judiciary was not entitled to make law where no law exists. Its duty was to interpret the written word of the legislature. It was up to the legislature to change the law.
Compared to MT v JT or even Corbett the reasoning in this case is remarkably shallow. Ormrod J arrived at is decision after an exhaustive analysis of the scientific material which, as a medical man as well as a lawyer, he understood better than most. The Appellate Division of the New Jersey Superior Court in MT v JT considered the very nature and purpose of marriage:
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