By Adolfo Pesquera
Express-News Staff Writer
An operation changed Christie Lee Littleton's gender in the eyes of her husband, now an appeals court must decide if it made her a woman in the eyes of the law.
The case of whether she is a widow came to court after Littleton's husband died and she sued a doctor for malpractice.
But his malpractice attorney came up with the "chromosomal" defense ‹ Littleton had no right to sue because same-sex marriages are illegal in Texas.
In arguments Thursday before the Fourth Court of Appeals, Littleton's attorney sought to persuade the panel that there's a legal distinction between same-sex partners and a couple in which one has undergone a sex-change operation.
"I think the (genital) amputation is a pretty significant line, Mr. Chief Justice," Littleton's attorney, Dale Hicks, told Chief Justice Phil Hardberger.
The issue must be decided if Littleton, 47, is to pursue the suit against the doctor she claims erred in diagnosing her husband's illness. Jonathan Littleton died in 1996 at age 35 of a pulmonary embolism.
Hicks noted the case has wide broad implications.
"This is not an uncommon thing," Hicks said of transsexual marriages, adding that a ruling declaring the Littletons' marriage as one of a same-sex couple would "void all these existing marriages."
As the plaintiff sat quietly, dressed in a beige business suit, Justice Alma Lopez asked the defense attorney for Dr. Mark Prange whether medical science had arrived at a definition for a transsexual.
"We are born with an essence. It goes to the cellular level," George Brin responded. "It cannot be altered by a scalpel."
Brin first argued that the Littletons' union was a same-sex marriage before 288th District Court Judge Frank Montalvo.
The district court judge agreed in November to Brin's motion to dismiss the case.
Brin argued Thursday that the Legislature, not a jury, should decide the issue.
"The Legislature has already decided on the issue," Hicks countered.
Hicks noted that state law allows people to change their gender on their birth certificate.
Littleton had her birth certificate amended by a district judge, in what Hicks described as an uncontroversial "ministerial function." "Mr. Littleton was totally aware about her, loved her and married her," Hicks said.
Littleton had her sex-change operation in 1979, 10 years before she met her husband.
The procedure involved a psychiatric diagnosis, hormonal treatments and surgeries that included penile amputation, Hicks noted.
"It certainly does not appear that a person can walk off the street and make that decision from one day to the next," Lopez said.
But when Hardberger asked Brin what weight the operations should be given, Brin said: "To say an opening made is a vagina is inaccurate. Chromosomally, the person does not change. It does not rise to the level of a true alteration of gender."
What harm is there, asked Justice Karen Angelini, in allowing Littleton legal standing as the spouse? [Ed.: Note here that Angelini initially appears to favor upholding Christie Lee's marriage -- six weeks later, she jumped the fence to Hardberger's opinion.]
"There is harm in a public policy sense," Brin insisted, "in making an exception without the underlying study and analysis."
The courts, Brin continued, are not in a position to give a jury the guidance they need to decide definitions of gender.
But if only the female-born, Hicks asked, are to be given legal standing in marriages to males, "what do we do with a hermaphrodite, what do we do with persons who wait 10, 20 years before deciding which way they're going to go?"
Transsexuals, Hicks said, exist as a segment of society.
"They are going to have lives," Hicks said. "They are going to marry. We are condemning Mrs. Littleton and people like her to live outside the bounds and norms of society."
The justices are expected to issue their opinion within the next two months.
Thursday, Sep 2,1999
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