Many Texans are so afraid of gay, lesbian, bisexual and especially transgender persons that what would be simple probate matters to others turn into media fodder for us.
The Nikki Araguz case going on in Wharton County is another example of how the systematic disenfranchisement of members of my community has turned one woman's private pain into a very public indignity. Firefighter Thomas Araguz died, and his wife and children would normally receive his death benefits. Perhaps like many in-laws who do not approve of their children's choice of spouse, Araguz's parents do not want their daughter-in-law to receive anything. They have hired a lawyer who is using a 1999 San Antonio appeals court case, Littleton v. Prange, to argue that Nikki Araguz was not Thomas Araguz's wife because there was no marriage. Littleton held that even if one's gender has been surgically corrected, one nonetheless remains the gender identified on his/her birth certificate. In other words, Littleton says that gender cannot be legally changed for the purposes of marriage.
Many transwomen and transmen in Texas are married to their partners, many of whose birth certificates reflect the same gender as their spouses. In El Paso, a same-sex couple recently requested a marriage license. These two women have presented appropriate documents with birth certificates showing that one of them was identified as male at birth.
The request has been forwarded to Attorney General Greg Abbott for a ruling. Not surprisingly, Abbott has avoided controversy by delaying his ruling pending an outcome in the Wharton County case. This is a no-win case for Abbott, whose supporters overwhelmingly oppose both same sex and transgender marriage.
If he issues an opinion consistent with Littleton, these two women could marry. However, if he rules they cannot marry because they are of the same sex, he would be acknowledging the rights of transgender persons to be recognized as they view themselves. This brings us to some of the chaos caused because we do not allow same-sex marriage in the state of Texas. If same-sex marriage were allowed, the couple in El Paso would not be left hanging waiting for a court decision in Wharton County.
The Texas Legislature may have already overruled Littleton. As of 2009, the Texas Family Code expressly lists a "court-order relating to the applicant's … sex change" as an identifying document that may be presented to obtain a marriage license. It is unlikely that our Legislature would recognize the authority of courts to grant sex-changes but want our county clerks to ignore the actual sex change in deciding the gender of an applicant for a marriage license. The only reasonable interpretation of this law is that gender can be legally changed for purposes of marriage.
The press has been filled for weeks with tabloid-style details of Nikki Araguz's past, no doubt in an attempt to discredit her. True or not, none of these issues would be relevant to her right to receive her share of her husband's benefits but for the fact that she was born in the wrong body.
One day, Texas, like five other states, the District of Columbia, and many countries around the world, will grant its gay, lesbian, bisexual and transgender citizens equal protection under the law, including the right to marry. When that happens, the dramas of dysfunctional families, even our families, will unfold around the dinner table, and perhaps in the quotidian business of the probate court, instead of in the media spotlight.
Gonzalez is an associate professor of English at the University of Houston and an out lesbian. She specializes in Mexican-American literature and sexuality. She is one of the founders of the GLBT studies minor and the LGBT Resource Center at the University of Houston.
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