Tuesday, 20 July 2010

They had to destroy marriage in order to save it





From the Houston Chronicle:
The family of a Wharton firefighter who died battling a massive egg farm blaze is fighting to keep his widow from receiving death benefits, arguing that the 37-year-old had found out his bride of two years was born a man.
It's an open-and-shut case. By Littleton vs Prange (1999), in the Appellant Court of Texas, this woman is actually a man, and her marriage void.

Marriage Licences, Birth Certificates and legalities mean nothing when the victim is trans or intersexed.

A press release from the Transgender Foundation of America
Houston, Texas – July 19, 2010 – The Transgender Foundation of America (TFA) is sad to learn of the untimely death of Thomas Araguz III, a heroic firefighter who was killed in the line of duty. Additionally, we are saddened to learn of a second tragedy unfolding in Wharton County involving Araguz’s grieving widow and her in-laws.

Immediately after the death of Araguz, the in-laws came out of the woodwork in an effort to defame the marriage of a fallen hero. The in-laws have claimed that Mrs. Araguz is a post-operative male-to-female transgender woman and as such, they claim the marriage is invalid and that they are entitled to the married couple’s home, belongings and financial assets.

“It is an affront to common decency that Mrs. Araguz’s in-laws have turned this tragedy into a money-grab” said Cristan Williams, the Executive Director of TFA . “I have spoken with Nikki and I find the actions of her in-laws repugnant. I call upon common sense and decency to prevail in this case. Mrs. Araguz should be left alone to grieve the death of her heroic husband with the support of her friends and of her church.”

At the heart of this attempt to swipe the property and money of a grieving widow lies the assumption that the chromosomes of Nikki Araguz must be XY and that chromosomes equal sex, a long debunked test that virtually all medical experts and sports authorities have abandoned. In 1999, the Olympic Committee along with many other federations dropped chromosome testing as a viable sex test all together.

The flawed ideology Mrs. Araguz’s in-laws wish to use in their bid for the couple’s belongings is based on a 1999 San Antonio ruling that declares that the position of the court is that women like Mrs. Araguz may only marry other women, which would also deny the right of marriage to all intersexed citizens of the State of Texas.

“TFA hopes that the Texas judicial system will quickly dismiss this frivolous attempt to rob Mrs. Araguz of her rightful possessions” said Williams. “I cannot imagine the tremendous pain that she must be going through, being attacked by her own family during her time of mourning.”

10 comments:

chipuni said...

I appreciate you pointing to this information, and to the article. But I don't think that the case is completely open-and-shut.

According to your original article,

Thomas Araguz III separated from his wife after learning her history two months prior to being trapped in the fatal July 3 fire, according to attorney Chad Ellis, who is representing Araguz's parents in the lawsuit.
. . .
Thomas Araguz learned during a custody dispute with his ex-wife last spring that 35-year-old Nikki Araguz, whom he married in August 2008, was allegedly born as Justin Graham Purdue.
. . .
Nikki Araguz declined Sunday to discuss her gender history, and insisted that her husband knew everything about her personal life when they married in August 2008. She also said the couple was not separated.

"We had a completely honest marriage, a 100 percent loving, honest marriage," she said. "I am grieving the loss of my husband and best friend."

According to the family's lawyer, the two were separated and fighting over custody. According to the wife, they were together.

If the battle over custody were in a court, then the lawyer's statements can be verified. If they were separated, then Nikki might have less legal standing.

On the other hand, I am emphatically not a lawyer.

chipuni said...

Correction.

My wife is a lawyer, though in California -- not in Texas.

She says that I'm wrong; that they haven't divorced means that Mrs. Araguz is likely to still be the prime recipient of her late husband's estate.

I was wrong. My bad.

Kathrin said...

Zoe - it's _NOT_ an open and shut case, by any stretch of the imagination.

From the (newly revised) Texas family code here:


Sec. 2.005. PROOF OF IDENTITY AND AGE. (a) The county clerk shall require proof of the identity and age of each applicant.
(b) The proof must be established by:
(8) an original or certified copy of a court order relating to the applicant's name change or sex change;

The Littleton decision was based on the fact that the legislature had not considered the issue, and that birth certificates could only be amended to correct mistakes (per statue), which they felt this was not.

The fact that it is permissible as a form of identification shows that the legislature has considered the issue. The fact that one can have a "sex change" order indicates that it is fundamentally not immutable and fixed at birth (or it could not be changed), and the fact that they specifically permit it as a form of identification for purposes of marriage indicates that it is intended to be used for marriage.

Name changes are separate and distinct from sex changes, as such there is little utility in using such as proof of identity, as one could (presumably) use the name change order.

tgnonsense said...

It's an open-and-shut case. By Littleton vs Prange (1999), in the Appellant Court of Texas, this woman is actually a man, and her marriage void.

Marriage Licences, Birth Certificates and legalities mean nothing when the victim is trans or intersexed.

Zoe, the marriage status of post ops in Texas has been discussed in depth...surely you must realize that Kathrin is absolutely correct. Post ops are legally married in Texas all the time. If there is a rub at all in this case it would be (1) she was married in 2008 when, in fact, the Family Code was not changed until 2009, and (2) she was married two months before she had GRS.

The video of this girl comes across with quite a parsed story. I understand that she is hesitant to discuss her background, yet her replies to the answers comes across as posturing. I would think she had nothing to gain by going on the news.

I live in Texas, but was born and married in Louisiana. Louisiana has allowed post ops to marry since 1968 and specifically changed their birth certificate laws that same year to meet that end.

To my knowledge, only three states have specifically shot down a post op's ability to marry. On the other hand, 47 states have either not addressed the issue or have (like New Jersey, Texas, Louisiana and others) ruled specifically that such marriages are legal.

A month or two ago, you brought up the same issue on Pam's House Blend...TO ME. It was rebutted there just as Kathrin and I are rebutting your same essential position here.

Why do you, as an Australian, keep perpetuating the myth that marriage licenses, marriages, birth certificates, etc of post ops are meaningless when those who actually live here in the States absolutely know different?

Zoe Brain said...

No challenge to the marriage of a trans person has failed since what, 1976? Not after all appeals? And the supremes have refused to grant certiori.

While there are many places where the venue is trans-friendly, all one has to do is go venue-shopping, and you'll find one that is not.

The decisions such as Littleton, Kantaras, Niall (IRCC) and Gardiner are monstrous, but much of the US Judiciary is now even further to the right.

Kathrin said...

> No challenge to the marriage of a trans person has failed since what, 1976? Not after all appeals? And the supremes have refused to grant certiori.

Marriages (DOMA aside) are a State thing, not a Federal affair.

The challenges may have succeeded, but look at how many trans people there are, and how many cases there have been. It simply isn't the kind of issue to show up in court all day.

US courts are structured to avoid litigation if possible - it takes a lot of time, money, etc. to run a case and it's appeals.

Put simply, these kinds of things won't show up in court if there isn't a good deal of money (or animus) involved, and even then will not make it far if they don't have a solid case.

As for the venue-shopping, you have it backwards. Sure, your home jurisdiction may be a pain to work with, but there are 50 states that one can get married in, and thanks to the Due Process clause, your home state has to recognize it.

There have been marriage cases in the past where people who could not get married in their home states (typically cousins). They are free to go to a jurisdiction that permits it, marry, and return.

DOMA (which is unconstitutional, but that's another discussion) attempted to change things a little by permitting states to disregard marriages which are not between "a man and a woman".

Right now, if you get married in TX (for example), are post-op, and use a "sex change order" to identify yourself, you can marry someone who is the same gender one was assigned at birth, and can not marry someone with the opposite gender. This is a marriage "between a man and a woman", and as such is valid in all 50 states, as DOMA does not attempt to apply.

Changing one's sex does not invalidate the marriage - the issue gets to be when the marriage is determined to have been void from the beginning as it violated restrictions.

Of course, nothing _requires_ one to change your sex and records. Texas doesn't like gay marriage, so if you are a post-op FTM transsexual, they would rather you marry a woman, and vice-versa. Otherwise, it looks like a gay marriage, and they don't like that.

Jenvieve said...

Zoe,

I'm surprised to see you, of all people, buying in to such simplifications. The Littleton case was specifically written to only apply to the jurisdiction it was issued in - that would be the parts of Texas from San Antonio to Brownsville to El Paso. The rest of the state is a different jurisdiction. Talk to Phyllis Frye, for gosh sakes. (BTW, I heard she's taken on this case).
My understanding is that while cases in other US jurisdictions have attempted to use Littleton as a precedent, that's met with mixed results.

Jenvieve said...

Plus, the facts of this case differ substantially from Littleton in that her birth certificate was issued in California, where significantly different rules apply.

Monica Roberts said...

Zoe, one marriage case in the States that went in our favor was New Jersey's MT vs JT in 1976.

The New Jersey case involved a man who paid for his mate’s SRS and lived with her as man and wife for two years. When they separated she sued for support.

The lower court sided with the transsexual, stating: “If the psychological choice of a person is medically sound, not a mere whim, and irreversible sex reassignment surgery has been performed, society has no right to prohibit the transsexual from leading a normal life.”

It was also upheld in New Jersey appellate court.

translegalhistorian said...

In addition to the 1976 New Jersey intermediate appellate court opinion in M.T. v. J.T., there is the 2004 Louisiana intermediate appellate court in Pierre v. Pierre. I'm not licensed in either state, so I am unclear as to what the subsequent treatment by each state's Supreme Court means.

Sadly, we all fall into a sea of negativity regarding what 'the majority rule' is regarding recognition of transition.

I have said this more times than I can count, and I will say it again: NEVER concede that there is a negative 'majority rule' among the states of the U.S. regarding transition recognition. While the bulk of case law is negative, almost all of them (including M.T. v. J.T.) either involve states that have no statute which can easily be read as recognizing transition (N.J. does now, but it did not in 1976; the same for Oregon, which did not have one at the time of the K. v. Health Division case, but does now) or involve situations where the transsexuakl spouse did not fit the requirements of the statute at the time of the marriage (as was the case with the Simmons case in Illinois, a state which has had a transsexual birth certificate statute since 1955.) We must act (and this would be acting legitimatelu) as though the reason that there are not hundreds - or even thousands - of published court decision in the United States in line with M.T. v. J.T. is that, in the 26 states that have transsexual birth certificate statutes, it is not an issue that can be legitimately disputed and, therefore, never results in published opinions on the matter.

I recommend perusing my law review article published recently in the Touro Journal of Race, Gender and Ethnicity: http://www.tourolaw.edu/JournalRGE/Issues/Vol5Issue1/Rose_Final.pdf

Also, an earlier article, published in the Ohio Northern University Law Review - "Is the Renaissance Still Alive in Michigan? Or Just Extrinsic? Transsexuals’ Rights After National Pride at Work" - unfortunately is no longer accessible on the open net