2 sides of law
By Karen M. Goulart
PGN Staff Writer
© 2000 Philadelphia Gay News
Phyllis Randolph Frye was hoping to retire soon.
After 25 years as an out transgender activist and more than two decades practicing law, she was looking forward to making space for the next generation of community leaders. Instead she finds herself at the center of two of the highest profile, and most complicated, trans-rights cases in the nation.
One case left a client devastated, the other was cause for celebration. But both require the other for any lasting judicial satisfaction.
Frye will participate in the fourth "International Congress on Crossdressing, Sex and Gender," which will be held Oct. 5-8 at the Warwick Hotel, 17th and Locust streets.
Frye took on the appeal of Christie Lee Cavazos Littleton.
In the course of a malpractice suit over the death of her husband, Mark, Littleton reportedly was shut out of a settlement agreement because the doctor's insurance company said she was a man. The court agreed.
Littleton had been through all the hoops of legally "becoming" the woman she knew she was, had been living as a woman most of her life, was legally Mark's wife for seven years. But the decision of San Antonio's 288th District Court effectively wiped that all away. Presumably, Littleton was born with male chromosomes, therefore, in the eyes of Texas law, she was a man, and as such, her marriage was rendered invalid.
An appeal to the ruling was made to the Texas Supreme Court. Frye suspected that the judges there, although conservative, would see the same bigotry she saw at the core of the ruling.
"After the case was decided in October of '99. and I read it, I thought this is such a bad law and it is so patently bigoted that surely even the conservative elected Republican on the Texas Supreme Court will hear the case," Frye said. "And even if they didn't, there wasn't a whole lot I could do about it."
The Texas Supreme Court refused to hear the case March. But there was something Frye could do about it.
The Texas Human Rights Foundation contacted Frye, seeking a lawyer to take the case to the U.S. Supreme Court. Not involved in federal or appellate law, Frye contacted trans attorney Alyson Meiselman of Maryland, who agreed to take the case if Frye stayed as local attorney.
Frye and Meiselman sifted through it, looking for any remaining legal remedies in Texas before appealing to federal court. They discovered there was time to beg the Texas Supreme Court to extend the deadline for a second appeal.
Frye decided at this time to take the opposite approach of Littleton's previous lawyers. Where they hid Littleton from the media, Frye wanted to put her in the spotlight.
But the second appeal was denied in May. Littleton hired Frye and Meiselman to prepare another appeal in the case. Frye, Meiselman and a legal team of local and national attorneys and academics filed the writ in July. A response could come as soon as November.
Meanwhile, Littleton's case would prove a good thing for another transgender woman.
Jessica Wicks had once hired Frye when Wicks corrected the gender on her state identification. During the summer, Frye received a call from Wicks asking for legal help: Wicks wanted to marry her lover, Robin. Frye was less than eager to assist.
Jessica and Robin Wicks had gone to the county clerk's office in Houston with copies of their original birth certificates. Having heard of the Littleton case, and knowing that Littleton's gender had partially been legally determined by her original birth certificate, the couple saw an opportunity to be legally married because Jessica's birth certificate showed her to be male, and Robin's said she was female. They had no luck.
According to Frye, the couple was told because they were two women, that Jessica could not marry Robin, and because of the Littleton decision, Jessica could not marry a man, either. It angered the very private couple enough to contact Frye.
Frye decided to take the case, but only certain conditions.
"I said before you do this, there's a big conflict of interest you have to understand, if I can get you married, fine, but I have to use the celebrity and novelty of your issue to gain interest and focus media attention on the wrongness of the Littleton decision," Frye said.
The media and the San Antonio county clerk's office were notified in advance that Frye and the Wick's were coming Sept. 6 to get the license. The strategy worked. The clerk was "as nice as could be," Frye said, and gave the license without hesitation. The media were also on hand 10 days later when Jessica and Robin Wicks celebrated their wedding.
With the precarious success of the Wicks' union, Frye is now calling on couples to come to Texas to do the same thing. And has in the process become aware of places where similar actions have already taken place.
"I've been trying to tell every one who is a transman and has a gay boyfriend or transwoman and has a lesbian girlfriend, if they want to, to take a vacation, come on down to Texas, get a license, wait three days, then get married," Frye said.
While Frye sees the Wicks case as advancing trans and gay rights, her feelings are mixed as the U.S. Supreme Court ponders taking on Littleton's appeal. Although there are many people, she said, who support her work, there are some who view it as shameless promotion that sacrifices the legal standing of some trans people for others.
"I'm getting a lot of nasty e-mail from previously closeted post-surgical transsexuals because me and Allyson are standing up and fighting the fight, trying to expose the Littleton case for the horrible thing it is," Frye said.
Frye said the positive mail outnumbers the negative mail by a wide margin, but she has been hurt by some of it, and angered that people are blaming her instead of becoming active in their own communities.
Frye admits it's not a perfect solution, and that she's not sure what to expect as a final outcome for the two cases. But she believes very strongly that these actions had to be taken.
What she and Meiselman are hoping is that the Supreme Court says that while legal sex is a valid jury question, it should be decided after hearing all relevant facts, including up-to-date medical facts.
"My guess is [the marriages] may have to be litigated somewhere down the road, but because that is a civil matter and not a criminal matter, and the marriages were legal when they were formed, they should remain legal," Frye said.
Frye explained to Wicks that if the Littleton decision is overruled, the Wicks may have to defend their marriage.
It was a risk they were willing to take.
No gay help
More disheartening than the barbs of trans critics is the lack of response from the gay and lesbian legal community to what she sees as an opportunity to advance in the fight for gay marriage.
"The only reason I can figure is because some of these gay and lesbian legal organizations are still carrying some transphobic baggage, they refuse to accept that trans folks started the stonewall rebellion in 1969 and they sure as hell don't want transgender folks to help them open the doors to same sex marriage."
Whatever the decision of the Supreme Court, Frye said she is ready to finally hit the sidelines. If the writ is denied she'll help out however she can in taking the case to the Texas legislature. If it is accepted, it will be Meiselman who does the arguing in court. She's more than ready to let the many other trans activists step into the spotlight with "the wonderful work" they're doing.
"In late December '99, I was getting ready to do the annual newsletter ... when I didn't know the Littleton case was going to blow up, and I was thinking, it's so neat to be in the position that I'm not needed," Frye said with a laugh. "It's really nice not to be necessary anymore; it means I did a really good job."
Attorney Phyllis Frye can see the irony of how a Texas law has both helped and harmed two of her clients.
The trans-rights activist is at the heart of two ongoing legal battles involving a Texas law that defines people by their chromosomes. This law, of course, forever hinders trans residents, no matter their transitions.
Two of Frye's cases highlight the absurdity of this law. In one, a women was declared to be a man - because she was born male - despite the fact that she has been living her life as a woman and had a seven-year marriage to a man. It's the chromosomes, a Texas court ruled.
The other case, using the above Littleton decision, takes advantage of the chromosomes argument, and allowed two women, one of whom was born male, to marry legally in Texas. It's the first time a same-sex couple has been married legally in the Lone Star State.
Frye recognizes and appreciates the absurdity of this complicated dance that, at once, challenges the ornery Texas statute and uses it. And if she wins either, one of her clients will lose.
It's important to realize that at the heart of the law is a fundamental disregard for trans people. When law bases a privilege - in these cases, the privilege to marry - on the chromosomes one is born with, it excludes gender-identity minorities. This population is then forever denied the right to express themselves - to live freely. This law would rather they live a lie.
When you think about it, it's similar to a law preventing gays, lesbians and bisexuals from living openly, a la "don't ask, don't tell."
This is, of course, unacceptable, and Frye's quest in these opposing cases points out the absurdity of the law.
While her and her clients' efforts are laudable, it's disappointing that prominent gay and lesbian civil-rights organizations are not supporting - at least not very loudly - these Texas cases.
Although they are distinct communities with varying goals and problems, there are more similarities than differences among us. There should be no pecking order for justice and equality.
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