Judge: Transgendered widow's marriage not valid

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

more:  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.