By David McLemore / The Dallas Morning News
SAN ANTONIO – Next month, two Harris County women will arrive in San Antonio seeking a marriage license at the county clerk's office. They fully expect to get one, their attorney said. The law is on their side.
They may be right.
Special to the DMN: Michael Stravato/ APJessica Wicks (left) and Robin Wicks think they'll get a marriage license because Jessica Wicks was born a man.
Texas law does not permit same-sex marriages. A recent opinion by the state 4th Court of Appeals, which negated the marriage of a San Antonio woman who was surgically changed from a man, however, may just open the door for Jessica Wicks and Robin Wicks' wedding day, says their attorney, Phyllis Randolph Frye of Houston.
While Robin has always been a woman, Jessica's Texas birth certificate shows she was born a male, named Grady Roland Wicks. Thus, using the recent court ruling, Robin and Jessica are of different genders under the law.
If everything goes as the couple plans, the courts and the Legislature will have to revise the laws governing how people are identified sexually, Ms. Frye said.
"Two women will show up to get a marriage license Sept. 6. Thanks to the 4th Court's recent opinion, legally it will be a male and a female," Ms. Frye said.
"The court said chromosomes matter, not genitals. It's a legal opinion built on a lot of false assumptions. If that's how they want it, fine. We want the county clerk in Bexar County to know that we're coming and we're going to obey the law."
Obeying the law is precisely what Bexar County Clerk Gerry Rickhoff plans to do as well.
"I do what is authorized by state law, and the law states that you are what the Creator made you at birth, not what you hold yourself out to be," Mr. Rickhoff said. "We ask anyone who shows up for a marriage license to provide identification that proves age and other qualifiers. If the parties then swear that all is true and correct, we issue a license."
In October, the 4th Court upheld a lower court gender ruling. It found invalid a wrongful-death suit filed by Christie Lee Cavazos Littleton, now 48, following the death of her husband because Ms. Littleton was actually a man.
Ms. Littleton had undergone a sex-change operation in 1979, about 10 years before her marriage in Kentucky to Mark Littleton, who died following complications of medical treatment in 1996.
In the majority opinion, 4th Court Chief Justice Phil Hardberger wrote, "Male chromosomes do not change with either hormonal treatment or sex reassignment surgery. Biologically, a post-operative female transsexual is still a male." Justice Karen Angelini concurred.
In a dissenting opinion, Justice Alma Lopez wrote that the state courts had already accepted Ms. Littleton's sex change when it amended her birth certificate to indicate she was a woman.
"Notably, neither federal nor state law defines how a person's gender is to be determined," Justice Lopez wrote. "Our state Legislature has not determined the guidelines that should govern the recognition of marriages involving transsexuals."
There is very little case law to use as guidelines in the matter of defining sexual identity, said Victoria Mather, a professor of family law at St. Mary's University Law School in San Antonio.
And laws governing transgender issues are particularly incoherent, Dr. Mather said.
"The law is always better when it goes with the intent of the people when it comes to interpersonal relationships," Dr. Mather said. "The 4th Court has said that genetics is the determinant factor in sexual identity. If these folks don't get a license, it only adds to the incoherence of the law."
The Texas Supreme Court has twice refused to hear the Littleton suit on appeal. The case is now pending before the U.S. Supreme Court, said Ms. Frye, who also represents Ms. Littleton.
In the case of Jessica Wicks and Robin Wicks, "Jessica was born a male but had always known she was a female," Ms. Frye said. "She underwent surgery and treatment to become a woman and has been a woman legally for more than a year.
"The main objective is to get Jessica and Robin married. She and Robin are very much in love, which is why they share the same last name," Ms. Frye said. "They sought a marriage in Harris County earlier this year and were turned down by the clerk, who cited the Texas Family Code barring same-sex marriages.
"But we're also trying to get the Legislature's attention. Justice Hardberger's opinion says the Wicks should be able to get that license," Ms. Frye said. "Nobody has to have a drop-drawer examination to get a wedding license. No one wants that. But there is a legal point to be made. We're talking about changing how people identify their own sexuality."
Which, Dr. Mather said, is something the law should pretty much leave up to people when it comes to interpersonal relationships.
"We've seen a complete revolution in the laws governing child support, adoption and what constitutes a family. We once had laws that barred marriage between races. But human beings tend to fall in love with whomever we want," Dr. Mather said.
"Texas has made it very clear it doesn't want to recognize same-sex marriages. But now, the state is struggling to define what same-sex means.
"As a matter of long-term coherence, it's a mistake to say, 'This is the rule, and the state will say what you'll be.' The people will decide. The law has to then catch up."
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