This case involves the most basic of questions. When is a man 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 physician
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.
Factual Background
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, scrotum and
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 physician
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
this case.
On August 31, 1977, Christie's name was legally changed to Christie
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 a member
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 testify that
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
female transsexual.
On or about November 5, 1979, Dr. Greer served as a principal member
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 Kentucky
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
another man.
The trial court agreed and granted the summary judgment. The summary
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 statutory
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 heard on
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 between
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, the question
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 homosexuality, the
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 is simply
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.
Case Law
The English case of Corbett v. Corbett, 2 All E.R. 33 (P.1970), appears
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 meeting her,
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 criteria
for assessing the sexual identity of an individual. These
are:
(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 which,
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 involving the
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 ceremony
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 Corbett, and
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 is the
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 removed and
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 testified.
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 postoperative
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 re Ladrach,
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 830. Eventually,
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 the statutes
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.
Other Authorities
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, 560 P.2d
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).
Discussion
Christie challenges the trial court's summary judgment on four issues:
(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 whether the
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 Texas. It
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 it choose
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 protocol
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
waters.
There are no significant facts that need to be decided. The parties
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 whose sexual
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 of the
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 made to
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 treatment
or sex reassignment surgery. Biologically a
post-operative female transsexual is still a male.
(6) The evidence fully supports that Christie Littleton, born male,
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
contemplate.
(7) Some physicians would consider Christie a female; other physicians
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
supplied.
We recognize that there are many fine metaphysical arguments lurking
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 certificate,
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.
Conclusion
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.
PHIL HARDBERGER,
CHIEF JUSTICE
PUBLISH
