Susan's Place Transgender Resources

Judge: Transgendered widow's marriage not valid

http://abclocal.go.com/ktrk/story?section=news/local&id=8150010 (http://abclocal.go.com/ktrk/story?section=news/local&id=8150010)
5/24/11

WHARTON, TX (KTRK) -- Nikki Araguz, the transgendered woman who was fighting for the survivor's benefits after the death of her firefighter husband, has apparently lost her legal fight.

The attorney for the firefighter's children and his first wife said a Wharton County judge has ruled that since Araguz was born male, her marriage to Thomas Araguz was not valid, and she is therefore not eligible for his death benefits.

more:  http://www.khou.com/news/Judge-Transgender-widows-marriage-to-Wharton-firefighter-was-not-valid-122532719.html (http://www.khou.com/news/Judge-Transgender-widows-marriage-to-Wharton-firefighter-was-not-valid-122532719.html)

more:  http://www.myfoxhouston.com/dpp/news/local/110524-transgender-widows-marriage-voided (http://www.myfoxhouston.com/dpp/news/local/110524-transgender-widows-marriage-voided)

:(

Deja vu.

Ugh.

She was allowed to get married, but can't collect after his death because she was born in a male body, yet again, was able to get married...ouch, that sucks. I can understand the exwife wanting the money, supposedly for the his children by her, but the later wife I think is still entitled to it. I think if they want to make it all work out both her and the ex have to come to some agreement, split the money down the middle, can't see that happening though.

So much for basic human rights then!  >:(

I have absolutely no idea how she can be legally married and then not be considered his wife.  ???

I'm very disappointed.  Shouldn't "What God has joined together let no man tear asunder" apply?

Teresa

Marriage should be defined as between two people and forget the gender altogether.

A dark day for the Texas trans comunity.

Hopefully she can prevail on appeal.

Best of luck Nikki.

:'(

I was not involved with the legal team on this one.  I also need to await the opportunity to read the Opinion before really being able to assess what appellate grounds exist.  I wholeheartedly maintain that the Court lacked subject matter jurisdiction in this matter given that the Family Code precluded an action to declare a marriage void after the death of either spouse...in other words, even if one wants to accept at face value that the marriage was, under Texas law, a same-sex marriage and that the family was aware before the death of Thomas Araguz, they lost their opportunity to have the marriage declared void upon Thomas' passing last July. 

I also don't lay claim to knowing Nikki the best of those in or around the Houston area, but I have had some meaningful time with her, and her physical well-being is my greatest concern at the moment.  I know this was a ruling that will have left her devastated just as any widow would be devastated to be told that their marriage never happened...

I'm just numb...and it isn't just from the copious amounts of alcohol consumed with a different friend who also lost a publicized case today (although that one was only a Motion to Recuse in a custody matter- something that pales in comparison).   

  Thanks, Ann on a perspective from one in the legal profession.  There are still things here needed to sorted out still.  I got a lawyer in my club that specializes in estates and wills.  He said that it is a good idea to have a will drawn out upon marriage, especially if there is (are) pension(s) and estates involved.  He's seen a lot of young widow(er)s miss out on a technicality that a will could clear up.  You and your spouse should state in that will that either or both was born a different sex and the other spouse was informed of this?  A good question here?   The Gays in my state won a ruling on government pensions here. 
  Joelene

:/

so this was the first hurdle but it can and will still be taken to a higher level? to overrule the state judge? or appeal the state judge? *lingo*. It seems off for this judge to state this considering the marriage was legit, I don't see how she can't be awarded the benefits. :S

Yes she can make an apeal.

Yes, it was announced beforehand that this would be appealed.  Good read on this, Ann.  Thank you for your expertise.  I am certainly no lawyer.  I was at a meeting with Phyllis Frye and Nikki where they talked about all of the aspects of this case, and while I could not be there in court, there are some things that are fertile grounds for appeal.  For instance, the common-law statues would seem to indicate that since they presented themselves as husband and wife after her surgery and legal gender change, the marriage certainly would have been valid at that point.  I was also told that there are aspects that might take this all the way to the Supreme Court.    Who knows, at this point?  I just hope and pray that she is victorious in the end.

Quote from: Muffin on May 24, 2011, 10:18:11 PM
:/

so this was the first hurdle but it can and will still be taken to a higher level? to overrule the state judge? or appeal the state judge? *lingo*. It seems off for this judge to state this considering the marriage was legit, I don't see how she can't be awarded the benefits. :S

Generally in Texas, there is an opportunity for an additional bite at the apple at the trial court level (rarely successful in either civil or criminal matters) after which the appeal would, in this case, go to the 13th Court of Appeals at Corpus Christi.  Texas has 14 different Courts of Appeal, with the County where the action took place dictating where the appellate filing would be made.

If Nikki were unable to prevail at the 13th CoA, then she would have the option of appealing to the Texas Supreme Court. 

I have not seen a lot of cases on either the civil or criminal side out of the 13th, so I really cannot speak to the current tenor of the bench there (although of those I have read, they seem to be reasonable...moreso than the feeling I hold of the 1st and 14th that cover the Houston area).  I know that we had some major wins at the Texas Supreme Court on some compensation cases where the client had been released on actual innocence claims and the State was trying to argue that they were not entitled to the sums in question). 

Simple logic here (I know law often fails in this category):  All documentation submitted to the state was legal and valid.  In other words, neither party forged any documents they submitted that the state required for application for a marriage license.  The state issued the license.  The marriage ceremony was performed.  The state accepted that as the next necessary step and validated the marriage as legal.  Therefore the couple were legally married in the eyes of the state.

Now is the judge saying the state made a mistake?  What if the one of the party was not of sound mind at the time of the ceremony?  Could that party go to court and say the state made a mistake and have the marriage voided?  (I'm sure there are better scenarios but I think I made my point.)  If the judge voids this marriage, a new legal precedent could be set that could be a nightmare for the state and the courts.

Quote from: Kristi on May 24, 2011, 11:01:35 PM
Yes, it was announced beforehand that this would be appealed.

I'd opine that an appeal was going to have taken place no matter HOW the ruling had come down.  Neither party was going to just walk away and let yesterday be the end of things. 

QuoteGood read on this, Ann.  Thank you for your expertise.  I am certainly no lawyer.  I was at a meeting with Phyllis Frye and Nikki where they talked about all of the aspects of this case, and while I could not be there in court, there are some things that are fertile grounds for appeal.  For instance, the common-law statues would seem to indicate that since they presented themselves as husband and wife after her surgery and legal gender change, the marriage certainly would have been valid at that point.  I was also told that there are aspects that might take this all the way to the Supreme Court.    Who knows, at this point?

Much of my analysis is from the outside looking in.  We don't do a lot of civil work in our office, and even that involvement tends to deal with some 1983 work in a very narrow area.  The bulk of our work is in the post-conviction realm.  But, some of what makes me good in that area tends to translate to being a policy wonk when I do some digging on, shall we say, more personal matters.   

QuoteI just hope and pray that she is victorious in the end.

As do I...and I hope it occurs with minimal residual harm to the children (whose concern the family seems not to really have had at heart).

One of the things that was said was that Nikki does not have female internal parts.  But many women have had ovariohysterectomies, are they now not women?  And how do they know what her chromosomes are?  Did they test her?  Or are they 'assuming' she has XX?

As Ann said an appeal was going to be filed, regardless of who the judge decided for.

But this ruling will be used by many anti-trans cases from now on.

Quote from: Janet Lynn on May 25, 2011, 09:29:11 AM
One of the things that was said was that Nikki does not have female internal parts.  But many women have had ovariohysterectomies, are they now not women?  And how do they know what her chromosomes are?  Did they test her?  Or are they 'assuming' she has XX?

I'm not sure if there was testing done and if so, whether it was ever offered into evidence. 

If there is/was going to be a legislative push to be made as a response to this decision, then the valid argument in lobbying becomes one of requiring chromosome testing of ALL applicants for a marriage license in Texas.  Further, if the definition used judicially of what makes a man or a woman is going to be based on status at birth, then there needs to be a concomitant requirement that ALL Texas births incorporate a requirement of genetic testing.  It is NOT something that will happen this session since the 82nd Regular Session is about to close and I would not envision it being taken up in the Special Session that seems to be all but inevitable at this juncture.  Legislation of that magnitude is also not something one wants cobbled together at the last moment and rushed through without running through all manner of sounding boards with peeps accustomed to picking apart proposed legislation (yet another thing I do given that much of our work can hinge on a permissive 'may' versus an obligatory 'shall' or other such technicality). 

Does that seem ludicrous?  On the one hand, certainly.  On the other hand, it seems that the tenor is a presumption that a marriage may ONLY incorporate one 46,XX and one 46,XY and everyone else is denied access to the legal privilege of marriage.  Of course the moment that the Legislature tries to do that, then you get into the Constitutional ramifications that lead to statutory fail. 

At the moment, the Family Code does NOT define a man nor define a woman.  It simply says that marriage is between one man and one woman.  There is a provision that precludes recognition of 'same sex' marriages or civil unions, but again, no provision for the determination of sex by statute. 

QuoteBut this ruling will be used by many anti-trans cases from now on.

Not necessarily.  As horribly wrong as I feel Judge Clapp's ruling is (and all I have seen discussed is the draft), the reality is that, at this very moment, the only people truly screwed by THIS particular ruling are those subject to the jurisdiction of the 329th Judicial District Court in Wharton County (which obviously includes Nikki).  It is NOT binding upon the balance of the State just as Littleton is not controlling beyond the jurisdictional limits of the 4th Court of Appeals at San Antonio (an area covering 32 counties in South Texas, many of which are not heavily populated outside of perhaps Bexar County and Guadalupe County).  Can it be considered by other Courts as a persuasive holding?  Sure.  But they are not bound by it any more than, as an example, the 14th Court of Appeals at Houston is bound by a holding in the 12th Court of Appeals at Texarkana except and unless the 12th's holding was later affirmed by the CCA in Austin. 

There is a lot of bad case dicta out there in ALL areas of practice.  Competent counsel will ALWAYS be aware of what is out there and will expect the crap to be pulled out of the books.  In our recent win at the CCA, the State sought to cling to dicta from a case decided just months earlier that produces a completely bass-ackwards result and the CCA called them out on the fact that it was disingenous to interpret the 5th Circuit's holding in that particular manner (we knew what the State would do with that case because we had also been involved with the case from the 5th).  But each of those two cases also involved appellants who had less than stellar factual histories. 

Pretty client histories rarely tend to be the ones you draw when getting useful caselaw.  In order to make the law work, one tends to have to be able to demonstrate that it applies equally, no matter how many warts the factual background might contain.  And that holds true no matter whether one is working within the civil realm or the criminal realm.   

Quote from: Ann Onymous on May 25, 2011, 10:05:35 AM
I'm not sure if there was testing done and if so, whether it was ever offered into evidence. 

It is NOT something that will happen this session since the 82nd Regular Session is about to close and I would not envision it being taken up in the Special Session that seems to be all but inevitable at this juncture. 

No kidding!  Our stupid governor would not even call a special session early to deal with our education crisis.  I certainly cannot imagine him calling a special session to deal with this.

Quote from: Ann Onymous on May 25, 2011, 10:05:35 AMDoes that seem ludicrous?  On the one hand, certainly.  On the other hand, it seems that the tenor is a presumption that a marriage may ONLY incorporate one 46,XX and one 46,XY and everyone else is denied access to the legal privilege of marriage.  Of course the moment that the Legislature tries to do that, then you get into the Constitutional ramifications that lead to statutory fail. 

In a sadistic way I hope they try to do just that.  I know this is what they want.  Anyone different from them needs to be denied their constitutional rights.    I just have my doubts they would be so transparent.  They do know that this would expose their true agenda, and would never be so above board.

If the court voids the marriage that means the marriage was never valid.  Assuming the couple filed a joint tax return with the IRS (same sex marriage is not recognized at the federal level), could the IRS come back and now say those tax returns were invalid (and maybe fraudulent) and therefore any benefit the couple gained through filing as a married couple was gained falsely?  Could the IRS prosecute Nikki and the estate of her husband for filing a false return?  Could they fine or imprison Nikki?

This is the kind of thing that the courts invalidating state approved legal documents could have.

Quote from: Julie Marie on May 25, 2011, 02:37:25 PM
If the court voids the marriage that means the marriage was never valid.  Assuming the couple filed a joint tax return with the IRS (same sex marriage is not recognized at the federal level), could the IRS come back and now say those tax returns were invalid (and maybe fraudulent) and therefore any benefit the couple gained through filing as a married couple was gained falsely?  Could the IRS prosecute Nikki and the estate of her husband for filing a false return?  Could they fine or imprison Nikki?

This is the kind of thing that the courts invalidating state approved legal documents could have.

would not envision IRS implications for previous years...the tasks associated with unraveling the finances are probably not worth it for the IRS especially in light of the fact that there is no manner by which a Tax Court could find that there was a deliberate effort made to evade tax liability.  Remember, it is the deliberate evasion that tends to result in the prosecutions.  And only the really egregious cases result in pen time...and those usually require two comma amounts of deliquency. 

We have a client on a post-conviction matter who just made a payment on her taxes that brought the remaining liability to ~$800K and the IRS has not even begun to try and threaten criminal prosecution.  Other clients have been in similar liability positions and have never received a letter from the IRS.  And it is those sorts of instance upon which I base a presumption that, at least as it pertains to the IRS, Nikki can breathe easy.

But, in the scenario I painted, the IRS could prosecute, if they wanted to.  Correct?

Quote from: Julie Marie on May 25, 2011, 03:42:37 PM
But, in the scenario I painted, the IRS could prosecute, if they wanted to.  Correct?

In theory, they could prosecute ANYONE who was found to have a deficiency in their filing.  When you put the amount at potential issue into context and balance against the number of audits conducted annually, it just ain't happening...the amount at issue is likely far less that *I* owed when they decided some years after the fact that they did not like my math and wanted a very large sum.  And despite all of *that* go-round they never seemed to bat an eye for the year my ex and I filed jointly.

I was just poking around the the appellate websites to check on the current status of the Atty General's appeal in Naylor (the Travis Co same-sex divorce).  Saw an amicus brief was filed last week (well, closer to two weeks ago) by noted 'phobe and author of the Texas legislation against same-sex marriage.  His Constitutional arguments muddy the water as it relates to Nikki's case because I had forgotten that the Texas Constitution discusses marriage between a 'man' and a 'woman.'  That is NOT the same thing, legally speaking, as having declared it as being between a 'male' and a 'female.' 

They do then revert to the statute that precludes recognition of same-sex marriages, but because they cannot draft a brief worth a damn, they muddy the waters so much that even the Justices will have heads spinning. 

Hopefully mods won't have an issue with the links to the .pdf as they appear on the Court's website (Texas Supreme Court allows viewing of the electronic briefs)...

http://www.supreme.courts.state.tx.us/ebriefs/11/11011402.pdf (http://www.supreme.courts.state.tx.us/ebriefs/11/11011402.pdf)  (13 page amicus brief received on 5/13)
http://www.supreme.courts.state.tx.us/ebriefs/11/11011401.pdf (http://www.supreme.courts.state.tx.us/ebriefs/11/11011401.pdf)  (105 page Petition for Review filed by the Atty General on 3/21)

There are some nuggets in there that I feel could be successfully used in appellate efforts on Nikki's behalf, although no ruling will be forthcoming for some time from the TxSupCt if past cases are any indication. 

Quote from: Lisbeth on May 24, 2011, 06:02:03 PM
Deja vu.

March 15, 2002:
Kansas Supreme Court Says Transsexual Marriage Invalid; Rejects Claim for $2.5 Million
http://www.genderadvocates.org/News/GardinerAP.html (http://www.genderadvocates.org/News/GardinerAP.html)

This was the first court ruling to invalidate a post-op TS marriage. Now Texas has followed Kansas.

Every anti-same-sex marriage individual, group or organization says marriage is only between one man and one woman.  I've never heard any use the terms male or female.  By legal definition, man and woman could vary from state to state.  Since many things are assumed, it's quite possible many states, if not most or all, have nothing in law that defines man or defines woman.  I'm pretty sure in most cases the medical definition of male and female is assumed to apply to man and woman, respectively.

The implications here are great and this could end up being something very interesting to watch.

Ann, since Nikki was previously married and later divorced before marrying Thomas, would her first marriage now also be considered never to have been valid?  And if so, could Nikki sue the state for her legal expenses in having to pay for a divorce in a marriage that never existed?

The more you look into this the more it seems the state's best option is to just make this thing go away.  Sure, it will upset the phobes, but in the long run it could be a lot easier and cheaper for the courts to figure out a way to keep Nikki's marriage valid but not rule on it being so.

Quote from: Julie Marie on May 25, 2011, 10:04:51 PM
Ann, since Nikki was previously married and later divorced before marrying Thomas, would her first marriage now also be considered never to have been valid?  And if so, could Nikki sue the state for her legal expenses in having to pay for a divorce in a marriage that never existed?

The more you look into this the more it seems the state's best option is to just make this thing go away.  Sure, it will upset the phobes, but in the long run it could be a lot easier and cheaper for the courts to figure out a way to keep Nikki's marriage valid but not rule on it being so.

On the first issue, I would have to look at how the Bill was originally worded...some legislation is retroactive while others are prospective and apply ONLY to the affected matters following the effective date of the legislation.  Obviously my area of focus has historically been in matters associated with defense-related issues in the criminal realm, and I have seen a smattering of retroactive legislation with most of it being prospective so as to avoid ex post facto claims.  But even there, I don't know that the cost-benefit analysis would make it worth pursuing such a claim...it is not unlike a current client who got absolutely screwed on a CVF assessment that does not appear to be consistent with the law at the time of the offense- however, it would cost them as much to litigate the issue as they stand to gain with a favorable ruling on the matter.  And while there is the whole 'right is right, wrong is wrong' component of the equation, litigation STILL costs money...

As to the second issue, never underestimate the amount of time and effort the State will waste to avoid doing the right thing.  We had a number of significant wins against a particular State agency last year and have already had a few more this year, some of which included a federal judge awarding us fees and holding the Chair of a particular agency personally liable.  Yet despite those wins, the State has continued to screw people over in the same manner, basically daring us to sue them yet again...

Other examples are found in some of the cases related to compensation for the actual innocence claims.  A few of the ones they went kicking and screaming on were where someone was on parole and was revoked precisely for the offense that they were later found to be actually innocent on many years later.  But for the new offense, a presumption carries that they would not have been returned to prison.  Yet it took the intervention of the Texas Supreme Court to do the right thing. 

I wish there had been some manner by which the Court could have come up with a decision that was held in abeyance with the suggestion that the parties agree to an amicable split of the proceeds, a significant percentage of which would be held in trust for the benefit of the children.  I still maintain that the Court could also have decided it lacked jurisdiction in the matter, not unlike we saw in the Naylor/Daly divorce when the AG appealed it to the 3rd Court of Appeals...

more comments from bilerico:  http://www.bilerico.com/2011/05/widow_nikki_araguz_denied_death_benefits_by_texas.php (http://www.bilerico.com/2011/05/widow_nikki_araguz_denied_death_benefits_by_texas.php)

Quote from: Ann Onymous on May 25, 2011, 10:05:35 AM

At the moment, the Family Code does NOT define a man nor define a woman.  It simply says that marriage is between one man and one woman.  There is a provision that precludes recognition of 'same sex' marriages or civil unions, but again, no provision for the determination of sex by statute. 

Quote

But this ruling will be used by many anti-trans cases from now on.

Not necessarily.  As horribly wrong as I feel Judge Clapp's ruling is (and all I have seen discussed is the draft), the reality is that, at this very moment, the only people truly screwed by THIS particular ruling are those subject to the jurisdiction of the 329th Judicial District Court in Wharton County (which obviously includes Nikki).  It is NOT binding upon the balance of the State just as Littleton is not controlling beyond the jurisdictional limits of the 4th Court of Appeals at San Antonio (an area covering 32 counties in South Texas, many of which are not heavily populated outside of perhaps Bexar County and Guadalupe County).  Can it be considered by other Courts as a persuasive holding?  Sure.  But they are not bound by it any more than, as an example, the 14th Court of Appeals at Houston is bound by a holding in the 12th Court of Appeals at Texarkana except and unless the 12th's holding was later affirmed by the CCA in Austin. 

I have been wanting to run an aspect of the decision by others for their thoughts. Ann as you are versed in many of the specifics of the case I would welcome your input.

As stated, Littleton v. Prange may have been considered as case law, but would not be applicable to the matter under discussion

On September 1, 2009 lawmakers changed the Texas family code (Texas Family Code § 2.005(b) to permit an applicant for a marriage license to use a sex change court order to nullify the birth certificate gender. The new law also allowed a driver's license to serve as proof of identity and age.

Thus "Texas law now states that you can get a marriage license after a sex change".

Therefore to me the issues that needed to be adjudicated were:

1. Can the September 2009 ruling be applied to the August 2008 marriage of Nikki Araguz to Thomas Araguz?

2. Was Nikki Araguz legally a female under Texas law at the time of her marriage?

And not to presuppose your response, but I deduce that this answer from a different question may be apropos:

Quote

....I would have to look at how the Bill was originally worded...some legislation is retroactive while others are prospective and apply ONLY to the affected matters following the effective date of the legislation.  Obviously my area of focus has historically been in matters associated with defense-related issues in the criminal realm, and I have seen a smattering of retroactive legislation with most of it being prospective so as to avoid ex post facto claims.

Quote from: peggygee on June 06, 2011, 05:49:13 PM
As stated, Littleton v. Prange may have been considered as case law, but would not be applicable to the matter under discussion

On September 1, 2009 lawmakers changed the Texas family code (Texas Family Code § 2.005(b) to permit an applicant for a marriage license to use a sex change court order to nullify the birth certificate gender. The new law also allowed a driver's license to serve as proof of identity and age.

Thus "Texas law now states that you can get a marriage license after a sex change".

Therefore to me the issues that needed to be adjudicated were:

1. Can the September 2009 ruling be applied to the August 2008 marriage of Nikki Araguz to Thomas Araguz?

2. Was Nikki Araguz legally a female under Texas law at the time of her marriage?

And not to presuppose your response, but I deduce that this answer from a different question may be apropos:

Ironically enough, it is the Warren Chisum amicus brief in the Naylor case (the Travis County same-sex divorce now in the Texas Supreme Court courtesy of the Atty General's challenge) that could provide some interesting challenge material on appeal because it reminded me that the Texas Constitution is at odds with the statute as it relates to the definition of marriage.  Under the Texas Constitution, Nikki is and was clearly a 'woman' at the time of the marriage even if the courts want to split linguistic definitions on whether she is/was female at the time she married Thomas.  The obvious hurdle comes with proving up on appeal that issues not presented were the result of IAC as opposed to a deliberate trial strategy...and if that cannot be shown, it becomes infinitely more difficult to properly address the case on appeal.   

Without going into the specifics of Nikki's personal background, she has been legally female since long before the marriage to Thomas.  However, definitions of certain legal matters sometimes vary based upon the forum in question and it is not uncommon to look at grammatical constructs and legislative histories when arguing a particular fact pattern.  Strictly speaking, Texas statute does not speak to what requirements exist to define one as legally male or female and as a result, you get legislation from the bench like we saw with the two notable Texas cases (yes, issues of activist judges run both good and bad depending on which side of the equation one is on at the time). 

This was NOT Nikki's first marriage in Texas and there was a prior divorce, granted ironically enough by the very same judge who has presided over the pending case. 

The September 2009 revision to statute is not a ruling.  It is law that simply defined the documentation sufficient to prove identity to the Clerk at the time of application for the license.  I failed to see at the time and still fail to see why it needed to be added to the list- after all, a drivers license or other government ID suffices for someone to get married in Texas.  And if one has had SRS, it stands to reason there would have been corresponding changes already made on other documents.  The change to statute does nothing to address the real issue of definitions and I would be reluctant to try and bootstrap an entire argument around an identification document clause.  As to whether it could be backdated would all depend on how the statute was worded...as noted, some are prospective while others are applied retroactively.  I would envision that change as having been a prospective action, but, as I indicated, I have never looked at the original text as approved by Governor Goodhair. 

The biggest problem has been that she was represented by people that wanted to try a CAUSE.  To me, that is problematic because it takes away from the real issue in the case, specifically addressing a suit related to ONE marriage and the estate problem that has followed the tragic death of a spouse.  Not all litigation should be about looking at greater goods and all the other theoretical crap.  The best interests of the CLIENT *absolutely must* take the front seat and should be the ONLY thing that competent counsel is trying to defend or represent... 

Wow .. interesting .. now how many of us are attorney's on this board? 

Quote from: Ann Onymous on June 07, 2011, 09:36:42 AM
Ironically enough, it is the Warren Chisum amicus brief in the Naylor case (the Travis County same-sex divorce now in the Texas Supreme Court courtesy of the Atty General's challenge) that could provide some interesting challenge material on appeal because it reminded me that the Texas Constitution is at odds with the statute as it relates to the definition of marriage.  Under the Texas Constitution, Nikki is and was clearly a 'woman' at the time of the marriage even if the courts want to split linguistic definitions on whether she is/was female at the time she married Thomas.  The obvious hurdle comes with proving up on appeal that issues not presented were the result of IAC as opposed to a deliberate trial strategy...and if that cannot be shown, it becomes infinitely more difficult to properly address the case on appeal.   

Without going into the specifics of Nikki's personal background, she has been legally female since long before the marriage to Thomas.  However, definitions of certain legal matters sometimes vary based upon the forum in question and it is not uncommon to look at grammatical constructs and legislative histories when arguing a particular fact pattern.  Strictly speaking, Texas statute does not speak to what requirements exist to define one as legally male or female and as a result, you get legislation from the bench like we saw with the two notable Texas cases (yes, issues of activist judges run both good and bad depending on which side of the equation one is on at the time). 

This was NOT Nikki's first marriage in Texas and there was a prior divorce, granted ironically enough by the very same judge who has presided over the pending case. 

The September 2009 revision to statute is not a ruling.  It is law that simply defined the documentation sufficient to prove identity to the Clerk at the time of application for the license.  I failed to see at the time and still fail to see why it needed to be added to the list- after all, a drivers license or other government ID suffices for someone to get married in Texas.  And if one has had SRS, it stands to reason there would have been corresponding changes already made on other documents.  The change to statute does nothing to address the real issue of definitions and I would be reluctant to try and bootstrap an entire argument around an identification document clause.  As to whether it could be backdated would all depend on how the statute was worded...as noted, some are prospective while others are applied retroactively.  I would envision that change as having been a prospective action, but, as I indicated, I have never looked at the original text as approved by Governor Goodhair. 

The biggest problem has been that she was represented by people that wanted to try a CAUSE.  To me, that is problematic because it takes away from the real issue in the case, specifically addressing a suit related to ONE marriage and the estate problem that has followed the tragic death of a spouse.  Not all litigation should be about looking at greater goods and all the other theoretical crap.  The best interests of the CLIENT *absolutely must* take the front seat and should be the ONLY thing that competent counsel is trying to defend or represent...

Ann, thank you for your response and input.

And I concur with your assessment of the case becoming one that many would hope set new precedent, ala Roe v. Wade, Brown v. Board of Education, Miranda v. Arizona, and many other landmark court decisions.

Indeed in our tabloid obsessed world the trial took on a life of it's own. Perhaps if the case had been represented with the best interests of the client, as you pointed out, then a different verdict may have been rendered.