By Adolfo Pesquera
Express-News Staff Writer
Wednesday, Oct 27, 1999
Woman cannot be man-made, or so ruled two of three justices Wednesday in an appellate court opinion on a San Antonio transsexual's suit.
"This case involves the most basic of questions," remarked 4th Court of Appeals Chief Justice Phil Hardberger, who in answering the question denied Christie Lee Littleton any legal standing as a woman.
In a medical malpractice suit, she alleged her husband's death in 1996 was preventable and the result of a missed diagnosis.
Hardberger agreed with 285th District Court Judge Frank Montalvo in his ruling that Littleton's marriage to Jonathon Littleton was a same-sex marriage, therefore illegal.
The ruling denies Littleton any standing as the spouse and affirms the defense's claim that no operation changes the genetics of the male chromosome.
Cases involving transsexuals are the rarest of sex cases in courts of law. Only four similar cases exist in the world, the chief justice noted.
Dale Hicks, Littleton's attorney, said he was disappointed by the opinion "but not surprised."
Hicks said he hasn't conferred with Littleton, but "it has been my understanding all along that she desired to go to the Supreme Court of Texas if it came to that."
Justice Alma L. Lopez cast the dissenting vote. She claimed the majority ignored rules of civil procedure in accepting Littleton's original birth certificate. Littleton had the birth certificate amended by court order Aug. 14, 1998, to reflect her preferred gender.
To set aside a suit, a defendant must show that no genuine issue of material fact exists, Lopez stated. "Christie presented significant controverting evidence that indicated she was female," Lopez wrote. "Texas law recognizes that inaccuracies occur in recording gender. By permitting the amendment of an original birth certificate, law allows these inaccuracies to be corrected."
But there was no error in the original birth certificate, Hardberger argued. Littleton was born in 1952 as Lee Cavazos Jr. and was anatomically a male until the age of 27 when his male organs were amputated. The lower court's role in amending the certificate was ministerial and "involved no fact-finding or consideration of the deeper public policy concerns."
Hardberger acknowledged that science recognizes certain people as transsexuals, and that the operating physicians at the University of Texas Health Science Center, Donald Greer and Paul Mohl, testified that "Christie is medically a woman."
The chief justice also acknowledged that transsexuals are not homosexuals. Nevertheless, he concluded that "her female anatomy is all man-made. There are some things that we cannot will into being. They just are."
In concurring with Hardberger, Justice Karen Angelini wrote, "this case involves no disputed fact issues for a jury to decide, but presents this court with pure issues of law and public policy."
Hardberger's opinion on public policy concurred with oral arguments provided Sept. 2 by George Brinn, attorney for the defendant, Dr. Mark Prange. Brinn argued that juries are not asked to answer questions without appropriate instructions or guidelines.
"In our system of government, it is for the Legislature to determine what guidelines should govern the recognition of marriages involving transsexuals," Hardberger wrote.
Hicks argued that the Legislature already took up the issue, which twice this decade was brought to state committees by a gender lobby.
And in an opinion filed on Littleton's behalf by the Texas Gender Advocacy Information Network, its executive director, Sarah DePalma, said transsexuals at this year's legislative session were told their bill to legally streamline gender transitions died because representatives "were not convinced there was a need to address the issue." "The chromosomal argument made in this case and the potential it has to do irreparable harm to hundreds of transsexuals across the state is a grave concern to us," DePalma said. Of the four examples in case law cited, one came from England, another from New Zealand and two from the United States. Only one case upheld a transsexual marriage -- M.T. versus J.T. in a New Jersey superior court. The New Jersey case involved a man who paid for his mate's sex-change operation and lived with her as man and wife for two years.
When they separated she sued for support.
The lower court sided with the transsexual, stating: "If the psychological choice of a person is medically sound, not a mere whim, and irreversible sex reassignment surgery has been performed, society has no right to prohibit the transsexual from leading a normal life."
The New Jersey appellate court agreed.
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