Commentary on the Littleton Case

Ramifications of Texas 4th Court of Appeals Ruling in Littleton v. Prange

Rather than following legislative mandate and court precedent upholding validity of the Texas Health and Safety Code which places determination of an individual's gender squarely in the medical arena, the Texas 4th Court of Appeals moved itself into the position of consummate medical authority (an odd twist of possibly practicing medicine without a license). The court's opinion flies in the face of logic and according justice in the most basic of human rights, clearly placing the status of individuals who have legally amended gender markers under the specifications of the Texas Health and Safety Code into legal limbo and generating a deep quagmire of legal uncertainty for a large number of intersexed people. Hardberger patently thumbs his nose at the Texas Health and Safety Code (attempting to define code intent in unclear paraphrase) as well as the decisions of numerous Texas District Court judges across Texas along with the supporting findings of medical authority in these cases. The court's decision effectively overturns hundreds of district court rulings without specifically addressing those court orders, and thus fails the test of substantively according due process for those individuals affected--the court's ruling goes far beyond the case of Littleton v. Prange itself. Justices Hardberger and Angelini have clearly let personal biases color their decisions, negating the concept of justice being blind to personal partiality.

Chief Justice Hardberger, in obvious efforts to placate religious extremists (the capitalized "Creator" in the opinion's second paragraph gives him away), cites the Defense of Marriage Act (DOMA) for a large basis of his opinion, subsequently twisting his opinion to fit into a DOMA context. In so doing he ends up validating legal marriages between two people who publicly appear to be of the same gender -- the only requirement for the two people is that one has XX chromosomes and the other XY. Hardberger has now in essence made it a requirement for the county clerks in Texas to investigate chromosomal makeup of individuals seeking marriage licenses before granting a license! To further muddy the water, Hardberger does not include gender status of individuals with XXY, X0, XYY, or several other combinations, nor does he consider people with indeterminant or mixed primary sexual characteristics, people born without gonadal characteristics, and even muddies the gender status of women who have had complete hysterectomies. In the final bizarre twist where Hardberger calls in fire on his own position, he in fact has quite literally and apparently obliviously defined a new "suspect class" in cases of discrimination. Let the ACLU class action suits begin!

Justice Angelini does not really offer any new insights in her concurring opinion; rather, she largely parrots Hardberger's opinion--her opinion is threaded more with personal emotional beliefs rather than pure legal fact. To her credit in her dissenting opinion, Justice López recognizes the extreme simplicity of the case with the fundamental need to support existing Texas statutes and accord proper legal gender markers to all individuals based on medical authority. She also recognizes that there is sparse existing legislation in regard to gender determination and correctly asserts that in absence of such law, the evidence presented by Littleton is of sufficient weight to accord equal rights on the basis of her present legal, medically determined gender. 

Oddly, Hardberger and Angelini have made it legal for people who possess female secondary sex characteristics to go topless in public (as long as they have XY chromosomes)! Hardberger and Angelini have added a whole new complexity for both Texas county clerks and law enforcement by issuing a judgment without considering the far-reaching legal and social ramifications of their actions.

Tere Frederickson, Paralegal
October 1999

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