Withholding the Franchise - Highly Suspect

This is a story from Texas, and how someone got to be denied the one thing that Democracies depend on. The Franchise. The Right to Vote.

Where to begin... start with a court case. One involving medical malpractice.

From Transsexualism and the Binary Divide: Determining Sex Using Objective Criteria by Dean of the Liberty University Law School, Matthew D. Staver.

Liberty University is a private, Baptist, Evangelical Christian university located in Lynchburg, Virginia. - Wikipedia

Background to the case, again from Wiki :

(Christie Lee) Littleton was born in San Antonio, Texas. She dropped out of school at age 15 and began living as a woman. In 1977 she began taking female hormones and legally changed her name to Christie Lee Cavazos. In 1980 she completed her surgical reassignment and had her state-issued identification changed to female. In the 1990s she met and married Jonathan Mark Littleton in Kentucky, later moving to San Antonio, where she worked at a salon and he worked as a window washer. After her husband's death, Littleton brought a medical malpractice suit against her husband's doctor, Mark Prange.

Now onto what Dean Staver says about the case, decided 10 years ago.

In Littleton v. Prange (9 S.W.3d 223 (Tex. App. 1999), cert. denied, 531 U.S. 872 (2000)) the Texas court found that a ceremonial “marriage” between a man and a transsexual born as a man, who was later surgically and chemically altered to have the physical characteristics of a woman, was not valid and thus void. The court queried: “[C]an a physician change the gender of a person with a scalpel, drugs and counseling, or is a person’s gender immutably fixed by a Creator at birth?” The court began the discussion by observing the following:

In our system of government it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of marriages involving transsexuals. . . .But this court has no authority to fashion a new law on transsexuals, or anything else. We cannot make law when no law exists: we can only interpret the written word of our sister branch of government, the legislature.

The Texas court found that the matter presented a “pure question of law and must be decided by this court.” The court then observed that Christie was created and born a male and her original Texas birth certificate clearly so stated. The court acknowledged that Christie amended the original birth certificate to change the sex and name during the pendency of the suit, but then pointed out that the trial court’s role in considering the petition is merely a ministerial one, which involves no fact-finding. “At the time of the birth, Christie was a male, both anatomically and genetically. The facts contained in the original birth certificate were true and accurate, and the words contained in the amended certificate are not binding on this court.” “There are some things we cannot will into being. They just are.” The court therefore held “as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathan was invalid, . . .”

And thus it was. No evidence was presented as to what Ms Littleton's Chromosomes actually were. Neither did the court consider such situations as this one:

A 46,XY mother who developed as a normal woman underwent spontaneous puberty, reached menarche, menstruated regularly, experienced two unassisted pregnancies, and gave birth to a 46,XY daughter with complete gonadal dysgenesis. - J Clin Endocrinol Metab. 2008 Jan;93(1):182-9. Epub 2007

Anyone with 46XY chromosomes had to be male, and anyone who looked male at birth had to have 46XY chromosomes.
But at least the court didn't direct that Christie Lee Littleton's birth certificate be changed back. It just took no judicial notice of it for the purposes of marriage.

Democrat 4th Circuit Appeal Judge Phil Hardberger went further though:

Citing Corbett v. Corbett, 2 All. E.R. 33 (P.1970), an English case, the Texas court concluded that “the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means.”

Thus those men with 5ARD who were born looking female, remain so, even if their genitalia changes so much as to enable them to father children.

The Texas registrar continued to ignore this eccentric ruling, and continued to amend birth certificates wherever the Federal 4th Circuit of Appeal's jurisdiction did not hold sway. They did so through the authority granted by the Texas Legislature, under Section 192.011 :

Sec. 192.011. AMENDING BIRTH CERTIFICATE . (a) This section applies to an amending birth certificate that is filed under Section 191.028 and that completes or corrects information relating to the person's sex, color, or race.

(b) On the request of the person or the person's legal representative, the state registrar, local registrar, or other person who issues birth certificates shall issue a birth certificate that incorporates the completed or corrected information instead of issuing a copy of the original or supplementary certificate with an amending certificate attached.

(c) The department shall prescribe the form for certificates issued under this section.

It very much depended on who you asked though, and whether you could find a friendly judge to order the registrar to make the correction. That very much depended on the Judge's religious beliefs. And the registrar's. From Dr Beckie Allison's guide to changing one's birth certificate in the USA:

Texas

Updated Information as of 2009

(Note: it may be worth the expense to have an attorney handle the TX procedure for you.)

Go to:

http://www.dshs.state.tx.us/vs/reqproc/amendment.shtm

and open Form VS-170, it's in PDF format.

Print it out and fill it out.

You will need to send the following documents:
1. Filled out form VS-170
2. ORIGINAL COURT ORDER for your name and gender change (one that has the original stamp on it; if you have only one copy, get another one first from the court)
3. A notarized copy of your SRS letter, from your surgeon
4. A photocopy of your driver's license
5. Applicable fees in money order, as listed on the website

From the Dept. of Vital Statistics:
Quote:

"Medical/Surgical Sex Changes require a certified copy of a Court Ordered Gender Change. I verified with a supervisor over our amendments department that the documentation we require to file the gender change on the birth record is a certified copy of the court order that specifically states to change the current gender (male/female) listed on the birth record to the new gender. The court order must be a specific court ordered gender change. Once our office receives these court orders our legal department first reviews them to see if they are acceptable to us as documentation for filing the gender change on the birth record."

Send it to the following address:

Texas Vital Statistics
Department of State Health Services
1100 W. 49th Street
Austin, TX 78756-3191

You HAVE to send this by UPS or FedEx, they will not accept it from the USPS (=post) and only expedited service. Don't send it to the PO Box address, it will take 2 to 3 months for them to start on it. They will send it back via Express mail or UPS.

Their phone number is 1-888-963-7111.

Keep calling them to find out the status of your request.
Expect to get different answers from different people.

This is, of course, NOT a guarantee that you will get your birth certificate amended, but this is how others have done it.

Good luck!

Please note: Although there is apparently no official policy change, there are areas of Texas where the officials are simply refusing to follow the listed procedure. This has been going on since the Littleton case was decided by the Texas supreme court. At this time you may not be able to change your Texas B.C., but some persons as of summer 2006 are successful by hiring an attorney to take them through the process.

Formerly, Texas would change both name and sex, and will issue a new birth certificate rather than amend the old one.

You will need an original or certified copy of the court order for your name change AND your sex change (court order for both), and an original letter from your SRS surgeon. You must enclose a copy of the old birth certificate, and specify exactly what you want changed. The fees are $15.00 to file, $15.00 for changing the information on the birth certificate, and $11.00 for each copy of the new birth certificate.

Debra Owens or Sandra Cooper
State Registrar (512) 458-7366
Bureau of Vital Records and Health Statistics

US Constitutional lawyers will immediately start fuming about the 14th amendment, "equal treatment for those equally situated" and so on, but let us lay that aside for now. That's what the situation was.

Now let's step back a bit, and look at some legislation recently passed by the Texas State Legislature. The Voter Photo ID Bill (SB 362). A harmless enough bill, that supposedly just prevents fraudulent ID theft in voting. Supposedly. But this is the actual effect:

“Identity Matters!” — TX State Sen, Florence Shapiro (R-Plano)

Both the transgender community and I couldn’t agree with the good senator more! For well over a decade, the transgender community has been pushing for passage of a name and gender change bill that would make the process much easier (alleviating the need for attorneys, courts, the idiosyncratic judges and their individual “discretion,” and especially the cost!) And for well over a decade, the legislature has ignored us. People transitioning, who have an ID in one gender but live as the other, will effectively be disallowed the vote per the Voter ID bill.

As Sen. Shapiro said in debate on the Senate floor, “we’re just trying to make sure everyone’s identification matches.” Sen. Fraser as well reiterated, declaring “I just want to make sure this person is who they say they are!” Basically it means if a black man walks in with the voter registration and an ID of someone who is obviously white, they don't vote. Similarly, if a 25 year old skate punk with long hair walks in with the voter registration and an ID of a 70-year old woman, he doesn't vote.

Now think of the prospect of someone named Kathy who's gone through transition from female to male and after a year's worth of testosterone has a full beard, the beginnings of a receding hairline and maybe some chest hair peaking over the collar. If Kathy still has the female ID, even though living as a male, do you think Kathy will vote under the new law? No. If I walked in with my former male voter certificate and my male ID, but appearing notably female in body and appearance, will I be allowed a vote under the Voter ID act? No.

The legislature passed it immediately. The argument seemed to be that the actual harm was minimal, that transition did not last forever (though it may seem like it), and that the birth certificate would, in the normal course of events, soon be corrected. A debateable point, for the vote should never be withheld, even for one election: but at least arguably rational, if unfair.

No-one thought of those with some Intersexed conditions with the same problem, but they'd be covered too, as soon as they got their ID corrected.

Except.... well, it appears that the Dallas Area Transport Company - DART - a publicly owned enterprise - wanted to save a few cents on their medical insurance bills. Well, that's the most charitable interpretation. That, or a particularly nasty and virulent case of transphobia. Here's a witness, Pamela Curry, commenting on the situation:

She was told by a VP of H-R this is the bible belt we are not going to allow you to marry and put your husband on insurance.

So if keeping health insurance risk to a minimum is the issue. Then even straight cisgendered couples should be very concerned. What happens when they go to adopt a special needs kid. The company not wanting to allow the high risk kid on insurance can challenge and block the adoption.

As further evidence of the separate and not equal treatment she received. After her return from Montreal her first post op followup at OB was denied care because the company listed her as a MALE. They changed her insurance marker as Male with Sex Change, but they refuse to mark her as Female.

This case qualifies as Twilight Zone material on many faces.

What????

Judge reversed order after transit agency fought longtime employee’s gender-marker change last year

DART stands accused of bigotry and transphobia after attorneys for the local transit agency intervened in family court last year to challenge a gender-marker change granted to an employee.

According to court records, a transgender DART employee obtained a court order in February 2009 directing all state agencies to correct their records by changing her gender-marker from male to female, including on her birth certificate.
...
In their motion for a rehearing, DART attorneys Harold R. McKeever and Hyattye Simmons argued that Texas law grants registrars, not judges, the authority to amend birth certificates. They also argued that birth certificates could be amended only if they were inaccurate at the time of birth.

“It’s not a DART issue, it’s a point of law,” Lyons told Dallas Voice this week, in response to the allegations of bigotry. “The lawyers concluded that the birth certificate could not be altered by law, unless there was a mistake made when the birth certificate was completed, and again, the judge changed the order before we even wound up going into court with it.”

Asked about DART’s LGBT-related employment policies, Lyons said the agency’s nondiscrimination policy includes sexual orientation but not gender identity/expression.
...
Curry, who helped the employee file her pro se petition for a gender-marker change, said the employee has worked for DART for more than 20 years and has an outstanding performance record.

The employee began to come out as transgender in 2003 and had gender reassignment surgery more than three years ago, Curry said. Curry said DART supervisors have at various times told the employee that she couldn’t have long hair, couldn’t wear skirts to work and couldn’t use women’s restrooms at work.

The employee has responded by showing up at work in her uniform so she doesn’t have to change and using public restrooms on her bus route, Curry said.

Supervisors have also told the employee she can’t talk to the media and can’t join political groups, such as Stonewall Democrats, Curry said.

“She’s intimidated and she’s scared,” Curry said. “One supervisor even suggested to her that if she doesn’t lay off it, they will mess up her retirement.”

All the DART lawyers had to do was mention the Littleton vs Prange decision. In the face of that, it would take a courageous Judge to say that the ruling had no effect.

Such abominable and discriminatory treatment, if it happened to a suspect class, would be illegal. Harassment, overt and blatant. But as transsexuals are not a suspect class, it isn't. It's still abominable, inhuman, detestable, discriminatory - but not actually against the law.

Here's Wiki yet again on the subject.

Strict scrutiny is applied to regulations that affect groups that fall under a "suspect classification." The US Supreme Court has mentioned a variety of criteria that, in some combination, may qualify a group as a suspect classification, but the Court has not declared that any particular set of criteria are either necessary or sufficient to qualify.

Some of the criteria that have been cited include:

* The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.
* The group is a "discrete" or "insular" minority.
* They possess an immutable and/or highly visible trait.
* They are powerless to protect themselves via the political process

For example, being effectively denied the opportunity to vote, via a poll tax or other means.

Now IANAL - I Am Not A Lawyer. A Lawyer wouldn't have used Wiki, she would have quoted the articles the Wiki entries were based on, the original sources. Caselaw, precedents, legal decisions, legislation, and much else besides, to bolster her case.

But a Lawyer would be unlikely to know about such medical syndromes as the one in the Journal of Endocrinal Metabolism, nor indeed about 5alpha-reductase-2 deficiency (5alpha-RD-2) and the similar syndrome 17beta-hydroxysteroid dehydrogenase-3 deficiency (17beta-HSD-3). And to draw the strands of jurisprudence, human rights and medicine together.

Maybe it does take a Rocket Scientist to show that this is Suspect. Highly Suspect. And just maybe, it it was put before them in a clear, concise and professional manner by a lawyer, a court, even the Supreme Court of the USA, might agree.