is a legal judgement from
Bexar County Texas. I was alerted to this document by a reader, and it
is an excellent example of the kind of precedents being established in
America with regard to transsexuals. This particular example is
useful, because it included within it references to other judgements
comparison. It is presented here, a public document, so that the
reader might gain insight into the current situation that faces them.
Christie Lee LITTLETON, Individually and
as Next Heir of Jonathon Mark Littleton,
Dr. Mark PRANGE,
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CI-15220
Honorable Frank Montalvo, Judge Presiding
Opinion by: Phil Hardberger, Chief Justice
Concurring opinion by: Karen Angelini, Justice
Dissenting opinion by: Alma L. López, Justice
Sitting: Phil Hardberger, Chief Justice
Alma L. López, Justice
Karen Angelini, Justice
Delivered and Filed: October 27, 1999
This case involves the most basic of questions. When is a man
and when is a woman a woman? Every schoolchild, even
of tender years, is confident he or she can tell the difference, especially if the person is wearing no clothes. These are
observations that each of us makes early in life and, in most cases, continue to have more than a passing interest in for the rest
of our lives. It is one of the more pleasant mysteries.
The deeper philosophical (and now legal) question is: can a
change the gender of a person with a scalpel, drugs and
counseling, or is a person's gender immutably fixed by our Creator at birth? The answer to that question has definite legal
implications that present themselves in this case involving a person named Christie Lee Littleton.
A complete stipulation of the facts was made by the parties in this case.
Christie is a transsexual. She was born in San Antonio in
1952, a physically
healthy male, and named after her father, Lee
Cavazos. At birth, she was named Lee Cavazos, Jr. (Throughout this opinion Christie will be referred to as "She." This is for
grammatical simplicity's sake, and out of respect for the litigant, who wishes to be called "Christie," and referred to as "she." It
has no legal implications.)
At birth, Christie had the normal male genitalia: penis,
testicles. Problems with her sexual identity developed early
though. Christie testified that she considered herself female from the time she was three or four years old, the contrary physical
evidence notwithstanding. Her distressed parents took her to a physician, who prescribed male hormones. These were taken,
but were ineffective. Christie sought successfully to be excused from sports and physical education because of her
embarrassment over changing clothes in front of the other boys.
By the time she was 17 years old, Christie was searching for a
who would perform sex reassignment surgery. At 23,
she enrolled in a program at the University of Texas Health Science Center that would lead to a sex reassignment operation.
For four years Christie underwent psychological and psychiatric treatment by a number of physicians, some of whom testified in
On August 31, 1977, Christie's name was legally changed to
Lee Cavazos. Under doctor's orders, Christie also began
receiving various treatments and female hormones. Between November of 1979 and February of 1980, Christie underwent
three surgical procedures, which culminated in a complete sex reassignment. Christie's penis, scrotum and testicles were
surgically removed, and a vagina and labia were constructed. Christie additionally underwent breast construction surgery.
Dr. Donald Greer, a board certified plastic surgeon, served as
of the gender dysphoria team at UTHSC in San
Antonio, Texas during the time in question. Dr. Paul Mohl, a board certified psychiatrist, also served as a member of the same
gender dysphoria team. Both participated in the evaluation and treatment of Christie. The gender dysphoria team was a
mutli-disciplinary team that met regularly to interview and care for transsexual patients.
The parties stipulated that Dr. Greer and Dr. Mohl would
their background, training, education and experience is
consistent with that reflected in their curriculum vitaes, which were attached to their respective affidavits in Christie's response
to the motions for summary judgment. In addition, Dr. Greer and Dr. Mohl would testify that the definition of a transsexual is
someone whose physical anatomy does not correspond to their sense of being or their sense of gender, and that medical
science has not been able to identify the exact cause of this condition, but it is in medical probability a combination of
neuro-biological, genetic and neonatal environmental factors. Dr. Greer and Dr. Mohl would further testify that in arriving at a
diagnosis of transsexualism in Christie, the program at UTHSC was guided by the guidelines established by the Johns Hopkins
Group and that, based on these guidelines, Christie was diagnosed psychologically and psychiatrically as a genuine male to
female transsexual. Dr. Greer and Dr. Mohl also would testify that true male to female transsexuals are, in their opinion,
psychologically and psychiatrically female before and after the sex reassignment surgery, and that Christie is a true male to
On or about November 5, 1979, Dr. Greer served as a principal
of the surgical team that performed the sex
reassignment surgery on Christie. In Dr. Greer's opinion, the anatomical and genital features of Christie, following that surgery,
are such that she has the capacity to function sexually as a female. Both Dr. Greer and Dr. Mohl would testify that, in their
opinions, following the successful completion of Christie's participation in UTHSC's gender dysphoria program, Christie is
medically a woman.
Christie married a man by the name of Jonathon Mark Littleton
in 1989, and she lived with him until his death in
1996. Christie filed a medical malpractice suit under the Texas Wrongful Death and Survival Statute in her capacity as
Jonathon's surviving spouse. The sued doctor, appellee here, filed a motion for summary judgment. The motion challenged
Christie's status as a proper wrongful death beneficiary, asserting that Christie is a man and cannot be the surviving spouse of
The trial court agreed and granted the summary judgment. The
judgment notes that the trial court considered the
summary judgment evidence, the stipulation, and the argument of counsel. In addition to the stipulation, Christie's affidavit was
attached to her response to the motion for summary judgment. In her affidavit, Christie states that Jonathon was fully aware of
her background and the fact that she had undergone sex reassignment surgery.
The Legal Issue
Can there be a valid marriage between a man and a person born
as a man,
but surgically altered to have the physical
characteristics of a woman?
Overview of Issue
This is a case of first impression in Texas. The underlying
law is simple enough. Texas (and Kentucky, for that matter),
like most other states, does not permit marriages between persons of the same sex. See Tex. Fam. Code Ann. § 2.001(b)
(Vernon 1998); Ky. Rev. Stat. Ann. §402.020 (1)(d) (Banks-Baldwin 1999). In order to have standing to sue under the
wrongful death and survival statues, Christie must be Jonathon's surviving spouse. Tex. Civ. Prac. & Rem. Code Ann. §§
71.004, 71.021 (Vernon 1977). The defendant's summary judgment burden was to prove she is not the surviving spouse.
Referring to the statutory law, though, does not resolve the issue. This court, as did the trial court below, must answer this
question: Is Christie a man or a woman? There is no dispute that Christie and Jonathon went through a ceremonial marriage
ritual. If Christie is a woman, she may bring this action. If Christie is a man, she may not.
Christie is medically termed a transsexual, a term not often
the streets of Texas, nor in its courtrooms. If we look at
other states or even other countries to see how they treat marriages of transsexuals, we get little help. Only a handful of other
states, or foreign countries, have even considered the case of the transsexual. The opposition to same-sex marriages, on the
other hand, is very wide spread. Only one state has ever ruled in favor of same-sex marriage: Hawaii, in the case of Baehr v.
Lewin, 852 P.2d 44 (Haw. 1993). All other cases soundly reject the concept of same-sex marriages. See, e.g., Dean v.
District of Columbia, 653 A.2d 307 (D.C.1995); Jones v. Hallahan, 501 S.W.2d 588 (Ky.1973); Baker v. Nelson, 191
N.W.2d 185 (Minn.1971), aff'd, 409 U.S. 810 (1972); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). Congress
has even passed the Defense of Marriage Act (DOMA), just in case a state decides to recognize same-sex marriages.
DOMA defines marriage for federal purposes as a "legal union
one man and one woman," and provides that no state
"shall be required to give effect to any public act, record, or judicial proceeding of any other state respecting a relationship
between persons of the same sex that is treated as a marriage under the laws of such other State...or a right or claim arising
from such relationship." Defense of Marriage Act, Pub. L. No. 104-109, § 2(a), 110 Stat.2419 (1996) (codified as amended
at 28 U.S.C.A.§ 1738C (West Supp.1997). So even if one state were to recognize same-sex marriages it would not need to
be recognized in any other state, and probably would not be. Marriage is tightly defined in the United States: "a legal union
between one man and one woman." See id. § 3(a).
Public antipathy toward same-sex marriages notwithstanding,
remains: is a transsexual still the same sex after a
sex-reassignment operation as before the operation? A transsexual, such as Christie, does not consider herself a homosexual
because she does not consider herself a man. Her self-identity, from childhood, has been as a woman. Since her various
operations, she does not have the outward physical characteristics of a man either. Through the intervention of surgery and
drugs, Christie appears to be a woman. In her mind, she has corrected her physical features to line up with her true gender.
"Although transgenderism is often conflated with
characteristic, which defines transgenderism, is not sexual
orientation, but sexual identity. Transgenderism describes people who experience a separation between their gender and their
biological/anatomical sex." Mary Coombs, Sexual Dis-Orientation: Transgendered People and Same-Sex Marriage, 8
UCLA Women's L.J. 219, 237 (1998).
Nor should a transsexual be confused with a transvestite, who
a man who attains some sexual satisfaction from
wearing women's clothes. Christie does not consider herself a man wearing women's clothes; she considers herself a woman
wearing women's clothes. She has been surgically and chemically altered to be a woman. She has officially changed her name
and her birth certificate to reflect her new status. But the question remains whether the law will take note of these changes and
treat her as if she had been born a female. To answer this question, we consider the law of those jurisdictions who have
previously decided it.
The English case of Corbett v. Corbett, 2 All E.R. 33
to be the first case to consider the issue, and is
routinely cited in later cases, including those cases from the United States. April Ashley, like Christie Littleton, was born a male,
and like Christie, had undergone a sex-reassignment operation. Id. at 35-36. April later married Arthur Corbett. Id. at 39.
Arthur subsequently asked for a nullification of the marriage based upon the fact that April was a man, and the marriage had
never been consummated. Id. at 34. April resisted the nullification of her marriage, asserting that the reason the marriage had
not been consummated was the fault of her husband, not her. Id. at 34-35. She said she was ready, willing, and able to
consummate the marriage. Id.
Arthur testified that he was "mesmerised" by April upon
and he dated her for three years before their marriage. Id.
at 37. He said that she "looked like a woman, dressed like a woman and acted like a woman." Id. at 38. Arthur and April
eventually married, but they were never successful in having sexual relations. Id. at 39. Several doctors testified in the case, as
they did in the current case. See id. at 41.
Based upon the doctors' testimony, the court came up with four
for assessing the sexual identity of an individual. These
(1) Chromosomal factors;
(2) Gonadal factors (i.e., presence or absence of testes or ovaries);
(3) Genital factors (including internal sex organs); and
(4) Psychological factors.
Id. at 44.
Chromosomes are the structures on which the genes are carried
in turn, are the mechanism by which hereditary
characteristics are transmitted from parents to off-spring. See id. at 44. An individual normally has 23 pairs of chromosomes in
his or her body cells; one of each pair being derived from each parent. See id. One pair of chromosomes is known to
determine an individual's sex. See id. The English court stated that "[T]he biological sexual constitution of an individual is fixed
at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or
surgical means. The respondent's operation, therefore, cannot affect her true sex." Id. at 47. The court then reasoned that since
marriage is essentially a relationship between man and woman, the validity of the marriage depends on whether April is, or is
not, a woman. Id. at 48. The court held that the criteria for answering this question must be biological and, having so held,
found that April, a transsexual, "is not a woman for the purposes of marriage but is a biological male and has been so since
birth," and, therefore, the marriage between Arthur and April was void. Id. at 48-49. The court specifically rejected the
contention that individuals could "assign" their own sex by their own volition, or by means of an operation. Id. at 49. In short,
once a man, always a man.
The year after Corbett was decided in England, a case
validity of a marriage in which one of the partners was
transsexual appeared in a United States court. This was the case of Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y.
Sup. Ct. 1971).
This New York case had a connection with Texas. The marriage
of the transsexual occurred in Belton, while the
plaintiff was stationed at Fort Hood. Id. at 499. The purpose of the suit was to declare that no marriage could legally have
taken place. Id. The court pointed out that this was not an annulment of a marriage because a marriage contract must be
between a man and a woman. Id. at 501. If the ceremony itself was a nullity, there would be no marriage to annul, but the court
would simply declare that no marriage could legally have taken place. Id. The court had no difficulty in doing so, holding: "The
law makes no provision for a 'marriage' between persons of the same sex. Marriage is and always has been a contract between
a man and a woman." Id. at 500.
Factually, the New York case was less complicated than
the instant case, because there had been no sexual
change operation, and the "wife" still had normal male organs. Id. at 499. The plaintiff made this unpleasant discovery on his
wedding night. Id. The husband in Anonymous was unaware that he was marrying a transsexual. Id. In both Corbett and the
instant case, the husband was fully aware of the true state of affairs, and accepted it. In fact, in the instant case, Christie and her
husband were married for seven years, and, according to the testimony, had normal sexual relations. This is a much longer
period of time than any of the other reported cases.
The next reported transsexual case came from New Jersey. This
only United States case to uphold the validity of a
transsexual marriage. In M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976), a transsexual wife brought an action for
support and maintenance growing out of her marriage. The husband interposed a defense that his wife was male, and that their
marriage was void (and therefore he owed nothing). Id. M.T., the wife, testified she was born a male, but she always
considered herself a female. Id. M.T. dated men all her life. Id. After M.T. met her husband-to-be, J.T., they decided that
M.T. would have an operation so she could "be physically a woman." Id.
In 1971, M.T. had an operation where her male organs were
a vagina was constructed. Id. J.T. paid for the
operation, and the couple were married the next year. Id. M.T. and J.T. lived as husband and wife and had sexual intercourse.
Id. J.T. supported M.T. for over two years; however, in 1974, J.T. left the home, and his support of M.T. ceased. Id. The
lawsuit for maintenance and support followed.
The doctor who had performed the sex-reassignment operation
Id. at 205-06. He described a transsexual as a person
who has "a great discrepancy between the physical genital anatomy and the person's sense of self-identity as a male or as a
female." Id. at 205. The doctor defined gender identity as "a sense, a total sense of self as being masculine or female; it
pervades one's entire concept of one's place in life, of one's place in society and in point of fact the actual facts of the anatomy
are really secondary." Id. The doctor said that after the operation his patient had no uterus or cervix, but her vagina had a
"good cosmetic appearance" and was "the same as a normal female vagina after a hysterectomy." Id. at 206.
The trial court, in ruling for M.T. by finding the marriage valid, stated:
It is the opinion of the court that if the psychological
choice of a
person is medically sound, not a mere whim, and irreversible
sex reassignment surgery has been performed, society has no right to prohibit the transsexual from leading a normal life. Are we
to look upon this person as an exhibit in a circus side show? What harm has said person done to society? The entire area of
transsexualism is repugnant to the nature of many persons within our society. However, this should not govern the legal
acceptance of a fact.
Id. at 207. The appellate court affirmed, holding:
If such sex reassignment surgery is successful and the
transsexual is, by virtue of medical treatment, thereby
possessed of the full capacity to function sexually as male or female, as the case may be, we perceive no legal barrier,
cognizable social taboo, or reason grounded in public policy to prevent the persons' identification at least for purposes of
marriage to the sex finally indicated.
Id. at 210-11.
Ohio is the last state that has considered this issue. See In
32 Ohio Misc.2d 6, 513 N.E.2d 828 (Ohio Probate
Ct. 1987). Ladrach was a declaratory judgment action brought to determine whether a male who became a post-operative
female was permitted to marry a male. Id. at 829-30. The court decided she may not. Id. at 832.
Like Christie, Elaine Ladrach started life as a male. Id. at
she had the transsexual operation which removed the
penis, scrotum and testes and constructed a vagina. Id. The doctor who performed the operation testified that Elaine now had a
"normal female external genitalia." Id. He admitted, however, that it would be "highly unlikely" that a chromosomal test would
show Elaine to be a female. Id. The court cited a New York Academy of Medicine study of transsexuals that concluded :
"...male to female transsexuals are still chromosomally males while ostensibly females." Id. at 831. The court stated that a
person's sex is determined at birth by an anatomical examination by the birth attendant, which was done at Elaine's birth. Id. at
832. No allegation had been made that Elaine's birth attendant was in error. Id. The court reasoned that the determination of a
person's sex and marital status are legal issues, and, as such, the court must look to the statutes to determine whether the
marriage was permissible. Id. The court concluded:
This court is charged with the responsibility of interpreting
of this state and judicial interpretations of these statutes.
Since the case at bar is apparently one of first impression in Ohio, it is this court's opinion that the legislature should change the
statutes, if it is to be the public policy of the state of Ohio to issue marriage licenses to post-operative transsexuals.
Id. The court denied the marriage license application. Id.
In an unreported case, a court in New Zealand was convinced
that a fully
transitioned transsexual should be permitted to marry
as a member of his new sex because the alternative would be more disturbing. See Mary Coombs, Sexual Dis-Orientation:
Transgendered People and Same-Sex Marriage, 8 UCLA Women's L.J. 219, 250 & n. 137 (1998) (citing M. v. M.
(unreported) 30 May 1991, S. Ct. of NZ). That is, if a post-operative transsexual female was deemed a male, she could marry
a woman, in what would to all outward appearances be a same-sex marriage. Id. The question would then become whether
courts should approve seemingly heterosexual marriages between a post-operative transsexual female and a genetic male,
rather than an apparent same-sex marriage between a post-operative transsexual female and a genetic female. Id.
The appellee cites K. v. Health Division of Human Resources,
1070 (Or.1977), in his brief. That case dealt with
whether a post-operative transsexual male could alter his birth certificate to change the designated gender. Id. The court held
that the issue was a matter of public policy to be decided by the Oregon legislature. Id. at 376. The legislature did respond to
the issue, and Oregon now has a statutory provision that enables a person whose sex has been changed by surgical procedure
to amend his or her birth certificate. Or. Rev. Stat. § 432.235(4) (West 1999). Other states have similar statutory provisions or
have interpreted their statutes to permit such an amendment to a birth certificate. See In re Ledrach, 513 N.E.2d at 832
(noting fifteen states have permitted a post-operative change of sex designation on birth records).
Christie challenges the trial court's summary judgment on four
(1) Prange did not carry his summary judgment burden of
proving, as a matter of law, that Christie's marriage was between persons of the same sex; there is no summary judgment
evidence that Christie was male at the time of her ceremonial marriage to Jonathon Littleton, the deceased; (2) Prange did not
carry his burden of proving, as a matter of law, that Christie was male at the time of her ceremonial marriage to Jonathon
Littleton, the deceased; sex at birth is not the test for determining the sex of a true post-operative transsexual for purposes of
marriage; (3) Prange did not carry his summary judgment burden of proving, as a matter of law, that Christie's marriage is void;
there is no summary judgment evidence that rebuts the presumption of validity of marriage; and (4) the summary judgment
should be reversed because, at the very least, Christie produced summary judgment evidence raising a genuine issue of material
fact that precludes summary judgment.
In an appeal from a summary judgment, we must determine
movant has shown that no genuine issue of material
facts exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690
S.W.2d 546, 548-49 (Tex. 1985); Ray v. O'Neal, 922 S.W.2d 314, 316 (Tex. App.--Fort Worth 1996, writ denied). In
determining whether a material fact issue exists to preclude summary judgment, evidence favoring the nonmovant is taken as
true, and all reasonable inferences are indulged in favor of the nonmovant. Nixon v. Mr. Property Management Co., 690
S.W.2d at 548-59. Furthermore, any doubt is resolved in the nonmovant's favor. Id.
As previously noted, this is a case of first impression in
involves important matters of public policy for the state of
Texas. The involvement of juries in the judicial process provides an important voice of the community, but we do not ask a jury
to answer questions without appropriate instructions or guidelines. In fact, cases are reversed when juries have not been
provided proper instructions.
In our system of government it is for the legislature, should
to do so, to determine what guidelines should govern the
recognition of marriages involving transsexuals. The need for legislative guidelines is particularly important in this case, where the
claim being asserted is statutorily-based. The statute defines who may bring the cause of action: a surviving spouse, and if the
legislature intends to recognize transsexuals as surviving spouses, the statute needs to address the guidelines by which such
recognition is governed. When or whether the legislature will choose to address this issue is not within the judiciary's control.
It would be intellectually possible for this court to write a
for when transsexuals would be recognized as having
successfully changed their sex. Littleton has suggested we do so, perhaps using the surgical removal of the male genitalia as the
test. As was pointed out by Littleton's counsel, "amputation is a pretty important step." Indeed it is. But this court has no
authority to fashion a new law on transsexuals, or anything else. We cannot make law when no law exists: we can only interpret
the written word of our sister branch of government, the legislature. Our responsibility in this case is to determine whether, in
the absence of legislatively-established guidelines, a jury can be called upon to decide the legality of such marriages. We hold
they cannot. In the absence of any guidelines, it would be improper to launch a jury forth on these untested and unknown
There are no significant facts that need to be decided. The
have supplied them for us. We find the case, at this stage,
presents a pure question of law and must be decided by this court.
Based on the facts of this case, and the law and studies of previous cases, we conclude:
(1) Medical science recognizes that there are individuals
self-identity is in conflict with their biological and
anatomical sex. Such people are termed transsexuals.
(2) A transsexual is not a homosexual in the traditional sense
word, in that transsexuals believe and feel they are members
of the opposite sex. Nor is a transsexual a transvestite. Transsexuals do not believe they are dressing in the opposite sex's
clothes. They believe they are dressing in their own sex's clothes.
(3) Christie Littleton is a transsexual.
(4) Through surgery and hormones, a transsexual male can be
look like a woman, including female genitalia and
breasts. Transsexual medical treatment, however, does not create the internal sexual organs of a women (except for the vaginal
canal). There is no womb, cervix or ovaries in the post-operative transsexual female.
(5) The male chromosomes do not change with either hormonal
or sex reassignment surgery. Biologically a
post-operative female transsexual is still a male.
(6) The evidence fully supports that Christie Littleton, born
wants and believes herself to be a woman. She has made
every conceivable effort to make herself a female, including a surgery that would make most males pale and perspire to
(7) Some physicians would consider Christie a female; other
would consider her still a male. Her female anatomy,
however, is all man-made. The body that Christie inhabits is a male body in all aspects other than what the physicians have
We recognize that there are many fine metaphysical arguments
about here involving desire and being, the essence of life
and the power of mind over physics. But courts are wise not to wander too far into the misty fields of sociological philosophy.
Matters of the heart do not always fit neatly within the narrowly defined perimeters of statutes, or even existing social mores.
Such matters though are beyond this court's consideration. Our mandate is, as the court recognized in Ladrach, to interpret the
statutes of the state and prior judicial decisions. This mandate is deceptively simplistic in this case: Texas statutes do not allow
same-sex marriages, and prior judicial decisions are few.
Christie was created and born a male. Her original birth
an official document of Texas, clearly so states. During the
pendency of this suit, Christie amended the original birth certificate to change the sex and name. Under section 191.029 of the
Texas Health and Safety Code she was entitled to seek such an amendment if the record was "incomplete or proved by
satisfactory evidence to be inaccurate." Tex. Health & Safety Code Ann. § 191.029 (Vernon 1992). The trial court that
granted the petition to amend the birth certificate necessarily construed the term "inaccurate" to relate to the present, and having
been presented with the uncontroverted affidavit of an expert stating that Christie is a female, the trial court deemed this
satisfactory to prove an inaccuracy. However, the trial court's role in considering the petition was a ministerial one. It involved
no fact-finding or consideration of the deeper public policy concerns presented. No one claims the information contained in
Christie's original birth certificate was based on fraud or error. We believe the legislature intended the term "inaccurate" in
section 191.028 to mean inaccurate as of the time the certificate was recorded; that is, at the time of birth. At the time of birth,
Christie was a male, both anatomically and genetically. The facts contained in the original birth certificate were true and
accurate, and the words contained in the amended certificate are not binding on this court. There are some things we cannot
will into being. They just are.
We hold, as a matter of law, that Christie Littleton is a
male. As a
male, Christie cannot be married to another male. Her
marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse.
We affirm the summary judgment granted by the trial court.