Table of Contents Table of Contents
Previous Page  18 / 48 Next Page
Information
Show Menu
Previous Page 18 / 48 Next Page
Page Background

18

Gender Identity Under Texas Law.

In

Littleton v. Prang

,

57

the appellate court held that a person’s gender

was not changed by a sex change operation, and that the designation of gender on the birth certificate

controlled over a sex-change operation. That view of the law was confirmed in

Mireles v. Mireles

.

58

However,

in 2009, the Legislature amended Section 2.005(8) of the Family Code to provide that proof of identity

for purposes of obtaining a marriage license could consist of “an original or certified copy of a court order

relating to the applicant’s name change or sex change . . . .” This impliedly says that a court can judicially

recognize a change in gender for purposes of marrying.

In February of 2014, the Corpus Christi Court of Appeals decided

In the Estate of Thomas Trevino Araguz

III, Deceased

,

59

a case involving a marriage between a man (Thomas) and another man (Nikki) who was

born with male genitalia but claimed to have a female brain, and who said she was miss-typed on her birth

certificate. The facts showed that Thomas married Nikki at a time when both Thomas and Nikki had male

sex organs. After the marriage ceremony, Nikki underwent surgery which removed her male sex organs

and created female sex organs. The trial court dismissed Nikki’s surviving spouse claims in probate on

the grounds that Thomas and Nikki had a same-sex marriage that was prohibited under Texas law. The

Corpus Christi Court of Appeals reversed, saying a fact issue was presented as to whether Nikki was male

or female at the time of the marriage ceremony and thereafter. The appellate court held that genitalia at

birth or at the time of marriage is not determinative of gender, and that Nikki’s expert testimony that she

was “medically and psychologically” a female created a fact issue that precluded summary judgment.

60

In

doing so, the appellate court credited Nikki’s medical expert’s opinion that “sexuality per se is a complex

phenomenon which involves a number of underlying factors . . . includ[ing] chromosomes, hormones, sexual

anatomy, gender identity, sexual orientation, and sexual expression.”

61

The import of the Corpus Christi Court

of Appeals’ decision is that a person’s self-perceived gender identity can prevail over physical attributes in

determining whether a person is male or female. The court specifically said that a sex-change operation is

not determinative. On September 4, 2015, the Texas Supreme Court denied appellate review of the decision.

At this point in time, there is no definitive indication of how and when a sex change, mentioned in Family

Code Section 2.005(8), becomes legally effective. The fact that Section 2.005(8) mentions a “court order

relating to sex change” suggests that the law does not recognize the sex change until a court issues an order

to that effect. A bright line such as that would have the advantage of eliminating guesswork over when a

person’s gender changes from the initial gender assignment reflected in the birth certificate.

Family Violence

The Texas Family Code’s family violence provisions protect individuals in same-sex relationships just as in

traditional marital relationships. Texas Family Code Section 71.004 defines “family violence” as an act by a

member of a family or household. Texas Family Code Section 71.003 defines “family” as including “individuals

related by consanguinity or affinity,” individuals who are former spouses, individuals who are parents of the

same child, and a foster child and foster parent. Texas Family Code Section 71.005 defines “household” as

“a unit composed of persons living together in the same dwelling, without regard to whether they are related

to each other.” Texas Family Code Section 71.0021 defines “dating violence” as an act against someone

with whom the actor has or had a dating relationship. Texas Family Code Section 71.0021(b) defines “dating

relationship” as “a continuing relationship of a romantic or intimate nature.” The court in

Ochoa v. State

,

62

held that “dating relationship” applies to both same-sex and opposite-sex relationships.

Parent-Child Issues

Marriage equality should not affect the standing to litigate parent-child claims. The claim that a child

cannot be adopted by two persons of the same sex was rejected in a 2007 case.

63

Parents automatically

have standing to litigate parental rights of their children and the definition of a parent in the Texas Family

Code is independent of marital status.

64

If only one adult in a same-sex relationship is the natural or adoptive

parent of a child, the adult who is not a parent will have to meet the standing requirements of non-parents in