Gender Identity Under Texas Law.
Littleton v. Prang
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
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
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.
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.”
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.
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
held that “dating relationship” applies to both same-sex and opposite-sex relationships.
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.
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.
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