Legal Articles on the Littleton Case
and Related Articles on
Gender Determination and Human Rights


Christie Lee Littleton v Mark Prange
 
Texas Court of Appeals: Hardberger CJ and Angelini and López JJ
 
27th October 1999
 
Yatoni Cole-Wilson
 
1st November 1999
 
In S-T v J [1998] 1 All ER 431 Ward LJ expressed the view at page 447 that powerful authority from the other common law jurisdictions as well as recent insight into the aetiology of transsexualism provided by researchers in the Netherlands might justify re-examination of Ormrod J's decision in Corbett v Corbett [1971] P 83. Ward LJ's observation is not surprising because Corbett's case depended on the expert evidence that was available 30 years ago. It is ironic that just as England is showing signs of retreating from Corbett Texas has lunged in the opposite direction.

The Facts

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.,

The Submissions

Mrs. Littleton argued that:

She argued that this case raised issues of public policy which could properly be decided by a jury.

The Judgment

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.

Comment

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:

"we are impelled to the conclusion that for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person's gender, psyche or psychological sex, then identity by sex must be governed by the congruence of those standards." The only answer to that reasoning offered by the Texas case was that MT was the only American authority upholding transpersons' marriages and that it had been superseded by Ladrach. The judgment in Littleton is also confused. After refusing to make law where, in a case of first impression, none existed the Court held as a matter of law that the claimant was male. The Court was also very badly informed. Only 5 cases are cited in the judgment: Corbett, Anonymous v Anonymous 325 NYS 2d 499 (NY Sup. Court 1971), MT v JT 355 A2d 204 (NJ Super 1976), In re Ladrach 513 NE 2d 828 (Ohio Probate 1987) and M v M. Neither A-G v Otahuhu Family Court [1995] 1 NZLR 603 nor S-T v J was mentioned. The judgment has denied a 48 year old person who for all other practical purposes functions as a woman of her only opportunity of obtaining redress for her enormous loss if the defendant was negligent. As it has also denied the doctor an opportunity to exonerate himself it is not fair even to him. It is good to reflect that the case would probably have been decided differently in England even if Corbett remains good law. Section 1 (1) (e) of the Inheritance (Provision for Family and Dependants) Act 1975 permits any person not being a spouse or child of the deceased who was maintained either wholly or partly by the deceased otherwise than for valuable consideration to claim for reasonable financial provision from the deceased's estate.

Source: http://www.lingwood.clara.net/cashr003.htm 


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