By Adolfo Pesquera and John Gutierrez-Mier
Express-News Staff Writers
Bexar County will issue a marriage license to two Houston women, and because one of them was born male, it's perfectly appropriate and legal, County Clerk Gerry Rickhoff says.
The couple are basing their request on Littleton vs. Prange, a case decided by the Texas 4th Court of Appeals last year that rejected a wrongful death lawsuit filed by a transsexual after her husband died.
Following the argument that "you can't have it both ways," Phyllis Frye the couple's lawyer who also represented the transsexual whose case the appeals court dismissed is using the appellate panel's opinion to get Jessica Wicks and Robin Manhart Wicks married.
Jessica Wicks, 53, is a male-to-female transsexual in love with a woman. She met Robin Manhart, now 44, three years ago, and the two began dating seriously a little more than a year ago. Robin legally changed her last name to Wicks this year, and they now are living together.
"Before Littleton vs. Prange, this was considered a same-sex marriage," Frye said. "There are going to be more and more couples like Jessica and Robin getting married."
The legal opportunity for the Wicks is one of many ripples spreading across the country from the October opinion that squelched a lawsuit by Christie Lee Littleton, a 48-year-old widow who formerly was a man.
When the San Antonio woman sued Dr. Mark Prange for malpractice after her husband's death, the 4th Court upheld a lower court decision that she wasn't entitled to sue because she had been in a same-sex marriage, not recognized as legal in Texas.
Using genetics as its standard, the panel of judges ruled 2-1 that chromosomes, not genitalia, were the determining factor in deciding a person's sex.
Since then, a number of cases have been filed across the country that both agree and disagree with Littleton, said Glynn Turquand, an Austin attorney who is representing a divorced female-to-male transsexual whose ex-wife is attempting to terminate his parental rights to their 5-year-old daughter.
The ex-wife cited the Littleton case in an attempt to get a Travis County district judge to declare that previously issued custody orders were based on a fraudulent marriage. The court ruled in the ex-husband's favor, allowing him to continue seeing his daughter, who was conceived through artificial insemination, Turquand said.
In the case of Jessica Wicks, the Harris County clerk's office should have issued her a marriage license when she applied for it in July, Frye said.
Wicks said she and her fiancιe were asked for their driver's licenses. The couple also produced birth certificates that showed Jessica was born male and Robin was born female.
"The person working the desk said she had to check with a supervisor. She came back and said, 'We can't issue a marriage license because you're a same-sex couple.' I showed her the Littleton opinion," Jessica Wicks said.
When the clerk stood firm, Wicks said she told her: "I want to make sure I understand. You're telling me I cannot marry either a male or a female."
Jessica Wicks said she stewed over the experience for a bit, then contacted Frye, who advised her to try Bexar County because that was where the Littleton opinion originated.
"I don't decide moral issues," Rickhoff, the Bexar County clerk, said this week. "It's not up to me to deny them their marriage license. In this instance, I'll be presented certified copies of their birth certificates and will present them with their license."
Rickhoff added that he consulted with the Bexar County district attorney's office and was instructed to issue the license in accordance with the 4th Court ruling.
Turquand, who specializes in family law, said the Littleton ruling is prompting more attorneys to pay careful attention to adoptions among same-sex couples and divorces of same-sex couples that involve children. It also is an argument being raised in probate cases by disgruntled heirs, he said.
But while the Wicks' marriage may be valid today, the same marriage may be out in the future, because the Littleton case still is being appealed, and the validity of the Littleton marriage could be reinstated down the road, Turquand said.
"The 4th Court ignored substantially all medical opinion as to what makes a man and what makes a woman," he said.
The Texas Supreme Court twice refused to hear the Littleton case, and it currently is being appealed to the U.S. Supreme Court.
Ultimately, it may not be the courts but the Texas Legislature that decides what a person's sex is, and that is what Frye is hoping to achieve.
In writing the 4th Court's majority opinion, Chief Justice Phil Hardberger also alluded to a legislative solution.
"Our responsibility in this case is to determine whether, in the absence of legislatively established guidelines, a jury can be called upon to decide the legality of such marriages. We hold they cannot."
However, state Rep. Robert Puente, D-San Antonio, said he does not foresee the Legislature approaching the issue in the next session, "unless we get a flood of these cases and the public asks that we address it."
For Jessica and Robin Wicks, a window of legal opportunity has allowed their independence to arrive. In that spirit they chose Sept. 16 widely celebrated in San Antonio as Mexico's independence day to hold their formal wedding here.
"It's going to be a big gala celebration," a beaming Jessica Wicks said.
Casey: 'I now pronounce you wife and
San Antonio Express-News
Decisions by San Antonio's 4th Court of Appeals rarely make good television, but I expect Jessica Wicks and Robin Wicks to change that in a week.
The two are coming to San Antonio next Wednesday to get a marriage license something they weren't able to do in Houston, their hometown.
Then they will hold a news conference on the courthouse steps, and I'm betting all the TV stations will be there.
The reason Jessica and Robin were turned down by a clerk at the Harris County Courthouse is that Jessica and Robin both look like women with and without their clothes on.
In Texas, marriage between two people of the same sex is illegal.
Most county clerks in Texas would take the same position as the Harris County clerk's office did in the case of Jessica and Robin Wicks, whose own sense of their union is such that Robin has already taken Jessica's last name.
But in Bexar County, they can expect a different reception. Here they will get their marriage license.
The reason is that Jessica Wicks was born a male. Her name was Grady.
She became Jessica when she had a sex change operation after years of belief that she had been meant to be a woman.
In Houston and most of the state, the sex change operation would enable her to marry a man.
In San Antonio and the 34 surrounding counties covered by the 4th Court of Appeals, she can't marry a man because that would be a same-sex marriage.
Of course you're confused.
Most of us are confused as to why some people are mentally and psychologically convinced that they need to live their lives as the sex other than the one they were born. But even if we can't understand it, some people are so powerfully wired with that notion that they go through treatment and surgery to change their sex.
But the State of Texas is confused as to how to deal with people who have had sex changes.
San Antonio's 4th Court of Appeals last year ruled that if you are born a male, you remain a male throughout your life.
No matter if you surgically trade in your outie for an innie.
No matter if through hormones or silicon you create curves and cleavage.
No matter if you dress, behave, and in every way take your place in society as a woman.
If you were born a boy, the law says you're a boy. And if you were born a girl, you're always a girl.
Summed up, the 4th Court said: "It's the chromosomes, stupid!"
Incidentally, that decision was not made in a case centered on anything so holy as matrimony. It had to do with money.
A widow sued a doctor for malpractice in connection with her husband's death. When lawyers for the doctor's insurance company found out the widow was born a boy, they successfully argued that the widow had been in a same-sex marriage meaning the marriage was illegal and she had no standing to sue.
But because the Texas Supreme Court has declined to hear an appeal of the case, it is the law only in this area.
Incidentally, there is no disagreement that it is the law in this area.
District Attorney Susan Reed sent a letter Wednesday to County Clerk Gerry Rickhoff confirming it.
Rickhoff had already come to that conclusion himself.
"The way I read the family code, a man and woman are coming to get a license," he said. "I base that on the 4th Court opinion."
Rickhoff added that he agreed with the 4th Court. "I choose to believe you are what your creator made you."
I agree with that, although it seems to me that the creator has a greater appreciation of variety and a more mischievous sense of humor than we have.
At any rate, for once, people who have had sex change operations and who traditionally have been the targets of disrespect and the butts of jokes seem to have an advantage over the rest of us.
Texas law, at least until the Legislature or the Supreme Court decides to take up the question, gives them total freedom as to marriage.
Under Texas law, it's not hard for people who have had sex change operations to get their driver's licenses changed to show their new sexual identity.
And under Texas law, a driver's license is enough documentation to obtain a marriage license. So is a birth certificate.
So a person who has had a sex change operation and wants to marry someone of the sex he or she used to be can go anywhere in Texas and get a marriage license simply by presenting his or her driver's license.
And if the surgically changed person wants to marry someone of the same sex he or she has become, he or she need only come to Bexar or surrounding counties and present his or her birth certificate to show he or she really isn't what appearances suggest.
And you thought this was a conservative state!
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