Believing that some things - like birth gender - "just are," a Texas appeals court has ruled a transwoman's marriage invalid and denied her standing to sue for malpractice in her husband's death.
A transwoman's medical malpractice lawsuit in the death of her husband of seven years was thrown out October 27 by a 2 - 1 Texas appeals court ruling, on the grounds that hers was an illegal same-sex marriage. The court gave no credit to the amended birth certificate the widow had obtained on the grounds that her original birth certificate had not been inaccurate. Plaintiff Christie Lee Littleton is expected to appeal to the state Supreme Court.
In their ruling the justices posed the question "Can a physician change the gender of a person with a scalpel, drugs and counseling, or is a person's gender immutably fixed by our Creator at birth?" Littleton was aware from early childhood of discomfort with her male body, and treatment with male hormones was attempted but not helpful. As soon as she could, she enrolled in a four-year multidisciplinary program which culminated in three separate surgeries for complete sex reassignment. Her husband Jonathan Littleton was fully aware of her history at the time that they married. However in the view of the appeals court, Littleton's transition wasn't enough to transcend her birth gender. "At the time of birth," the ruling said, "Christie was a male, both anatomically and genetically. 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. There are some things we cannot will into being. They just are. Conclusion: 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 Jonathan was invalid, and she cannot bring a cause of action as his surviving spouse."
Two justices believed that since the questions were issues of law rather than fact, it was up to the court to decide them as best it could under existing legislation and public policy, and it upheld a lower court's summary judgment dismissing Littleton's malpractice lawsuit. The third justice believed that the question of Christie's sex should have gone to trial.
Their ultimate determination regarding Littleton's gender turned on the justices' understanding that "Transsexual medical treatment does not create the internal sexual organs of a woman (except for the vaginal canal)," although medical testimony compared Littleton's physical condition to that of a typical woman following a hysterectomy. "Some physicians would consider Christie a female; other physicians would consider her still a male. Her female anatomy, however, is all man-made," they said.
The court found only a handful of precedents worldwide concerning the marriages of transsexuals; none of those marriages had the duration of Littleton's, the most recent of the precedents was 1987, and most were unfavorable to transsexuals. Although the court stated clearly that Littleton is a transsexual, lacking legislative guidance it chose to observe a chromosomal definition of sex and reject Littleton's status as "medically a woman" (as experts testified) since "her female anatomy is all man-made." [Ed. note: No state routinely tests the chromosomal makeup of applicants for marriage licenses, and there are several medical conditions in which individuals may appear to be of one sex despite having the chromosomal makeup of the other.] In developing its position, the court also specifically cited the federal so-called Defense of Marriage Act of 1996, allowing states to ignore legal same-gender marriages another state may someday perform.
Texas transgender activists approached the state legislature this year for the third time to clarify their status under the law, and were told that such legislation was unnecessary. The appeals court ruling may help to underscore the necessity for legislators next year, although it is clearly not a politically attractive issue; they are concerned at possible ramifications of the decision for issues such as health insurance and employability, as well as marriage.
November 1999, © copyright PlanetOut
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