4th Court of Appeals Confronts Transsexuals; Marital Rights

Nathan Koppel
Texas Lawyer
September 10, 1999

The 4th Court of Appeals in San Antonio heard oral arguments Sept. 2 in a case of first impression involving the marital right of transsexuals and the right of people to alter their gender legally.

At issue in Littleton v. Prange is whether a transsexual can legally marry a person of the same sex in which the transsexual was born. Same-sex marriages are not permitted anywhere in the United States, but attorneys for Christie Lee Littleton, a male-to-female transsexual, argue that she was not a man when she married Jonathan Mark Littleton in 1989.

According to briefs filed by both parties in Littleton, there is only one reported decision in the United States addressing the validity of such a marriage.

In 1976, in M.T. v. J.T., a New Jersey Superior Court upheld a marriage between a male and a transsexual who had surgically changed her external sexual anatomy from male to female.

"An acorn doesn’t become a maple tree. You can try as you might but it will become an oak tree," says Brian Fahling, a senior trial attorney with the conservative American Family Association, based in Washington, D.C. "People who want to quarrel with that are quarreling not only with reason and science but the thousands of pages in our life experience."

Katrina Rose, a columnist with Texas Triangle, which deals with gay, lesbian, bisexual and transgender issues, counters: "I have yet to hear a religious conservative address the fact that there are at least six or seven chromosomal patterns not just two. That totally blows away their position that [gender] is black and white."

The San Antonio court should legally recognize the medical fact that gender is not irrevocably set at birth, argues Rose, a transsexual, who practiced law in Houston before recently moving to Minnesota.

According to stipulated facts in Littleton,Christie Littleton underwent three sex-change operations in 1979 and 1980.

Nearly nine years later, she married her husband and was issued a Kentucky marriage license.

After her husband died in 1996, Littleton filed suit alleging his death was caused, in part, by the negligence of Mark A. Prange, a San Antonio doctor. Prange moved for summary judgment on the ground that Littleton was not entitled to survival spouse benefits because she is a man and her marriage is therefore void.

Judge Frank Montalvo, of the 288th District Court in San Antonio, granted the summary judgment motion in 1998, and Littleton appealed.

Fourth Court Chief Justice Phil Hardberger and Justices Alma Lopez and Karen Angelini will decide the appeal.

At the oral argument, Littleton’s attorney, Dale Hicks of San Antonio, struck first, making it known that he was not out to champion gay rights or same-sex marriages.

The central issue, he suggested, was whether Littleton had offered enough evidence that she had legally altered her sex to allow a jury to decide whether she was a woman when she got married.

The fact that she underwent her sex-change operation at the University of Texas Health Science Center was proof positive, he continued, that the state knows about and sanctions the procedure.

"So you think this is a jury issue?" Angelini asked.

"Unfortunately, yes," Hicks said, noting that he did not relish facing the religious and moral biases a jury might have against Littleton.

Hardberger jumped in, noting that he could see the merit in having the jury, as a reflection of society’s mores, weigh in on whether Littleton is a woman.

"But these are awfully untested waters," he added.

He asked Hicks what legal guideposts judges could give to a jury to help them resolve exactly when a person can be deemed to have changed his or her gender.

"What is the test? If you have had the operation . . . all the [hormonal] drugs and chemicals and counseling?"

The determining factor, suggested Hicks, a partner in the Law Offices of Maloney & Maloney, should be whether someone has undergone a sex-change operation.

"I think the amputation [of the male external genitals] is a pretty significant line," he said.

"So do I," Hardberger responded.

While Hicks tried to quell any notion that he was a radical liberal, Prange’s attorney, George Brin, seemed at pains to show he was sensitive to the plight of transsexuals.

"These are difficult issues and I don’t . . . want to be small-minded about a loving relationship," he announced.

Still, he argued, society’s ban on same-sex marriages is based on the Judeo-Christian notion that procreation and child rearing are the primary objectives of marriage. These moral underpinnings, he said, would clearly nullify the marriage.

In response to Hardberger’s question about how much weight to afford Littleton’s sex-change operation, Brin stated, "To say an opening capable of receiving a penis is a vagina . . . is medically inaccurate. Chromosomally, there is no change. No amount of alteration of genitalia can change that."

Brin, of San Antonio’s Brin & Brin, repeatedly argued that the issue in the case — whether there should be a retreat from the traditional concept of marriage — is a matter of public policy that must be resolved by the Legislature.

In rebuttal, Hicks zeroed in on Brin’s call for legislative control.

The court will fashion public policy whatever it decides, even if it merely affirms the summary judgment, he argued.

"If this court says transsexuals may not marry, it will . . . be voiding every transsexual marriage in the state."

Whatever the 4th Court holds, attorneys for both sides say the case will ultimately be decided by the Texas Supreme Court.

Notes lawyer Rose: "If it goes up there, it won’t be pretty."

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