Littleton v. Prange
Press Release 5/16/00 on case
PHYLLIS RANDOLPH FRYE
ATTORNEY AND COUNSELOR
|5707 Firenza Street
Houston, Texas 77035-5515
B.S. Civil Engineering, 1970, Texas
May 15, 2000
SEX NOT GENITALS, NOT HORMONES, NOT BRAIN, BUT CHROMOSOMES – RULING BY TEXAS SUPREME COURT – LIKELY THIS THURSDAY, MAY 18TH.
On May 18th, the Motion for Rehearing, Littleton v. Prange (Docket No. 99-1214) will be thirty days old and a ruling by the Texas Supreme Court is likely. If the Motion is denied, Attorney Alyson Meiselman and I will begin to appeal to the United States Supreme Court. If the Texas Supreme Court requests a brief, then we will begin that. If nothing happens on May 18th, we will take that as a sign that the Texas Supreme Court is considering the matter in more depth.
And well it should. Common law jurisdictions around the world are watching this case where the 4th Appeals Court (San Antonio) ruled last October (9 S.W.3d 228) that legal sex is no longer determined by a person's genitals, nor by their hormones nor by what their brain tells them from an early age. The 4th Appeals Court has reverted back to a thirty years old decision (Corbett) and ruled that sex is determined solely by chromosomes. Corbett has been discounted many times. As recently as 1991, a federal Veterans decision ruled in opposite fashion to the 4th Appeals Court over the same issue and the very same Texas laws. In 1994, a New Zealand court did the same.
If the 4th Appeals Court ruling is upheld, the State of Texas will look very silly. The 4th Appeals Court ruling will adversely effect more non-transsexuals than it will transsexuals. Tort law and family law will take a huge hit. It could even bring the federal courts back into the Texas prison system. It violates Texas law (and five of the American Medical Association's Code of Medical Ethics) on the confidentiality of genetic information, and it violates the Texas Constitution's ban on retroactive laws. It runs contrary to forty years of experience by the International Olympic Committee's verification of gender. See the attached article.
An extensive amount of helpful information is available at http://christielee.net . Mrs. Littleton, Attorney Meiselman and I are available to your inquiries at the above phone and e-mail.
Sincerely, Phyllis Randolph Frye
Available on http://christielee.net
(Note for older and slower browsers, a "Plain Vanilla" setting is available.)
HOME PAGE is the story with photos
HOME PAGE NEAR BOTTOM is the contact information for Attorneys Meiselman and Frye
LEFT SIDE: FILINGS THEN TOP SIDE: TX SUPREME - 2 is the Motion for Rehearing. This includes a note to the Honorable Texas Supreme Court as to why the lower court decision would be an embarrassment to the State of Texas. In the endnotes to the Motion are the following:
#2 - population of intersexed in Texas ranges from 20,000 to 800,000
#3 - the International Olympic Committee has ranged over this issue for 40 years
#8 - Adverse effects on the NON-transsexual community
#9 - violation of Texas law and Texas Constitution
#10 - violation of American Medical Ass'n, Code of Medical Ethics
#13 - why under Texas law, Mrs. Littleton's marriage is valid
#14 - 20 years of prior Texas actions that validate the marriage
LEFT SIDE: RULINGS THEN TOP SIDE: 4TH CT APP is the decision of the 4th Appeals Court (later published as 9 S.W.3d 228) which ruled that legal sex is not genitals, not hormones and not in the brain, but relied instead on the thirty year old Corbett decision to rule that legal sex is solely chromosomes
LEFT SIDE: LEGAL ARTICLES THEN TOP SIDE: VA DECISION is the 1991 federal decision that ruled opposite to the 4th Appeals Court on the very same issues of Texas law.
LEFT SIDE: LEGAL ARTICLES THEN TOP SIDE: NZ DECISION is the 1994 New Zealand decision over the same issues that completely discounts Corbett.
LEFT SIDE: MEDICAL ARTICLES THEN TOP SIDE: SEX V GENDER
LEFT SIDE: MEDICAL ARTICLES THEN TOP SIDE: SCIENCE & LAW
LEFT SIDE: MEDICAL ARTICLES THEN TOP SIDE: NATURE 95 which deals with brain sex.
LEFT SIDE: IN THE MEDIA THEN TOP SIDE: TX LAWYER 9/99
LEFT SIDE: IN THE MEDIA THEN TOP SIDE: SA E-N 4/9/00 which follows herein ------
Lawyer ponders effects of transsexual's case
By Adolfo Pesquera
San Antonio Express-News Staff Writer
A recent appellate court opinion intended to legally define what is a man and what is a woman will create havoc throughout society unless it is replaced with a better definition, a Houston trial attorney said.
The majority of the medical community and an international court agree with her.
A San Antonio transsexual's loss of standing in a wrongful death suit against her late husband's doctor appeared to be a fascinating but isolated situation with little significance outside a small community of people who choose to have their sex surgically altered.
But as the case has drawn attention, said her attorney, Phyllis Frye, it is becoming more apparent that the implications can touch everyone.
Christie Lee Cavazos Littleton, now 48, underwent sexual reassignment in 1979. Ten years later, she was injured in a car accident and had to go to Lexington, Ky., for bladder reconstruction.
There she met Jonathon Mark Littleton, an auto assembly line worker. While she was recovering, the two became friends, fell in love and obtained a marriage license in Kentucky. But in 1996, Mark Littleton became ill and died.
"It's a funny thing," Littleton said. "When I met my husband, he was taking care of me. Holding my hand in bed, changing my bandages. We met and ended it the same way."
Littleton's wrongful death suit against the doctor for medical malpractice was thrown out of 288th District Court on the grounds that Littleton was really a man and same-sex marriages are illegal.
The 4th Court of Appeals upheld the trial court's decision in October. In its opinion, Chief Justice Phil Hardberger sided with the doctor's insurance company and said, "Male chromosomes do not change with either hormonal treatment or sex reassignment surgery. Biologically, a post-operative female transsexual is still a male."
In March, the Texas Supreme Court informed Littleton's attorney it would not hear her case. He told Littleton, then removed himself as her attorney.
She missed a deadline for filing a motion to reconsider before she could hire Frye.
Frye was granted an extension Tuesday and has until April 18 to file a new motion.
"Every heterosexual involved in a wrongful death suit, a divorce, anything involving community property, insurance benefits, stands to lose something," Frye said.
"If this ruling stands, and right now it is the law of the land, attorneys will have to seek chromosome tests. If they don't, their client can turn around and sue them for malpractice."
Genetic testing would add to the legal cost, but under the present legal system it can't even be done. State law prohibits the use of genetic information by a state agency, including judges.
Littleton never was given a test to discover whether she was genetically a man. The court simply assumed she was because she once had male organs.
But it's not that simple. Just ask the international athletic community.
Allegations that certain countries were seeking unfair advantage in athletic competition by disguising men as women led to genetic testing for sex verification in 1967.
Known as the baccal smear, an athlete's mouth is swabbed, and a sex chromatin test is supposed to reveal whether the athlete is XX (female) or XY (male). Inconsistencies immediately surfaced.
In 1967, Polish sprinter Eva Klobukowska was eliminated from the European Cup, banned from competition and publicly humiliated worldwide, all because she had an XXY result, one chromosome too many to be declared a woman. A few years later, she became pregnant and gave birth to a healthy baby.
"One in every 400 competitors was eliminated in the Atlanta Olympic Games, even though there was nothing unusual about them anatomically," said Cheryl Chase, director of the Intersex Society of North America.
Three dozen medical conditions create sexual ambiguity in the human species, Chase said. These conditions affect between 1 percent and 2 percent of the general population, or in Lone Star terms between 190,000 and 380,000 Texans.
"If the Texas court's finding about who is eligible to marry is allowed to stand, many intersex people will not be allowed to marry anyone," Chase said.
The hard facts of science, said Brian Derrick, a biologist at the University of Texas at San Antonio who has been studying brain anatomy as a better indicator of sex, is that there are anatomical men with female chromosomes and vice versa.
That makes everyone suspect and the potential target of genetic testing.
"From a psychological and medical perspective, Littleton is a woman and always has been a woman," Derrick said.
Courts throughout the United States have rarely granted transsexuals the status they prefer.
The one notable exception was Renee Richards, the transsexual tennis star who in 1976 defeated the United States Tennis Association's attempt to ban her when the New York Supreme Court ruled there was "overwhelming medical evidence that (Richards) is now a female."
But outside the United States, and within the athletic community, sex definitions are changing.
Kristina Sheffield, a transsexual, sued the United Kingdom in the European Commission of Human Rights after she was repeatedly forced to identify herself as a male in judicial and commercial matters.
The commission ruled in 1997 that her privacy had been violated and noted that "there was a clear trend toward the legal acknowledgment of gender reassignment in ... Germany, Italy, the Netherlands, Sweden and Turkey."
Whichever way the Texas Supreme Court rules on Littleton, the case won't end there. The issue is too important, Frye said.
"I have an appellate attorney in Virginia [sic, Maryland] waiting for my phone call," she said. "If need be, we'll take it to the U.S. Supreme Court."
The courts may be confused as to what Littleton is, but the widow and self-employed beautician goes on with her life confident that she must prevail.
"I'm a woman," Littleton said. "Anybody can see that's all there is to it."
(Saturday, Apr 8, 2000, ©© copyright to San Antonio Express-News, Published with photo on page 7B, of the Sunday, April 9, 2000, home edition.)
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