Christie, a transsexual, was not allowed by the Court to file a medical suit as a surviving

spouse because his marriage to Jonathon was deemed invalid. He was born male and
therefore his is invalid. Further, the Court cannot grant the petition in the absence of a law
enacted by the legislature governing the rights of surviving spouses of a same sex marriage.

Littleton v. Prange
Court of Appeals of Texas, Fourth District, San Antonio

Oct 27, 1999

9 S.W.3d 223 (Tex. App. 1999)Copy Citation

Download  
PDF

Check  
Treatment

No. 04-99-00010-CV

Filed October 27, 1999

Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 98-
CI-15220, Honorable Frank Montalvo, Judge Presiding.

Dale Hicks, and Jon A. Hyde for Appellant.

Thomas F. Nye, and Linda C. Breck for Appellee.

Sitting: Phil HARDBERGER, Chief Justice, Alma L. LÔPEZ, Justice, Karen ANGELINI,
Justice. Concurring opinion by: Karen ANGELINI, Justice, Dissenting opinion by: Alma
L. LÔPEZ, Justice.

OPINION
PHIL HARDBERGER, Chief Justice.

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 statutes, 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.

CONCURRING OPINION

KAREN ANGELINI, Justice, Concurring.

I concur in the judgment. Given the complete absence of any legislative guidelines for
determining whether Texas law will recognize a marriage between a male-to-female
transsexual and a male, this court is charged with making that determination. This case
involves no disputed fact issues for a jury to decide, but presents this court with pure
issues of law and public policy.

In his opinion, Chief Justice Hardberger has concluded, based on an analysis of other
cases considering this issue, that Texas law will not recognize Christie Lee Littleton's
marriage to John Mark Littleton. In doing so, Chief Justice Hardberger notes his
agreement with the Ladrach  decision, which indicates that this is a matter best left to
the legislature. He further notes, in accordance with the Corbett case, that because we
lack statutory guidance at this time, we must instead be guided by biological factors
such as chromosomes, gonads, and genitalia at birth. According to Chief Justice
Hardberger, such biological considerations are preferable to psychological factors as
tools for making the decision we must make. In this case, I must agree.

I note, however, that "real difficulties . . . will occur if these three criteria [chromosomal,
gonadal and genital tests] are not congruent." Corbett v. Corbett, 2 All E.R. 33, 48 (P.
1970). We must recognize the fact that, even when biological factors are considered,
there are those individuals whose sex may be ambiguous. See Julie A.
Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law
and Biology, 41 Ariz. L. Rev. 265 (1999). Having recognized this fact, I express no
opinion as to how the law would view such individuals with regard to marriage. We are,
however, not presented with such a case at this time. See Corbett, 2 All E.R. at 48-49.

The stipulated evidence in the case that is before us establishes that Christie Lee
Littleton was born Lee Edward Cavazos, Jr., a male. Her doctors described her as a
true transsexual, which is "someone whose physical anatomy does not correspond to
their sense of being or their sense of gender . . . ." Thus, in the case of Christie Lee
Littleton, it appears that all biological and physical factors were congruent and were
consistent with those of a typical male at birth. The only pre-operative distinction
between Christie Lee Littleton and a typical male was her psychological sense of being
a female. Under these facts, I agree that Texas law will not recognize her marriage to a
male.

DISSENTING OPINION

ALMA L. LÔPEZ, Justice, Dissenting.

Although the standard for reviewing a trial court's order for summary judgment is well-
settled in this state, that standard is not addressed in the majority's opinion. To prevail
on a motion for summary judgment, the movant must show that no genuine issue of
material fact 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). In the instant
case, this standard required Dr. Prange to prove that Christie Littleton was not the
surviving spouse of Jonathon Littleton. To disprove this element of the plaintiff's cause
of action, Dr. Prange produced only Christie's original birth certificate. This evidence,
the majority concludes, is enough to prove as a matter of law that Christie Littleton is a
male and that, as a result, Christie is not Jonathon's surviving spouse.

While a birth certificate would ordinarily establish a person's gender conclusively,

Christie presented significant controverting evidence that indicated she was female.
This evidence was so substantial that it raised a genuine issue of material fact about
whether she was Jonathon's surviving spouse. In an ordinary summary judgment case,
such controverting evidence would prevent this court from concluding that the movant
had met its burden on a motion for summary judgment. But in this rather extraordinary
case, the majority has determined that there are no significant facts that need to be
determined and concluded that Christie is a male as a matter of law. Despite this
conclusion, there is no law to serve as the basis of this conclusion.

The absence of controlling law precludes a judgment as a matter of law in this case.
Notably, neither federal nor state law defines how a person's gender is to be
determined. Our state legislature has not determined the guidelines that should govern
the recognition of marriages involving transsexuals. Particularly material to this case,
the legislature has not addressed whether a transsexual is to be considered a surviving
spouse under the Wrongful Death and Survival Statutes. In an ordinary  case, the
absence of such law would prevent this court from concluding that the movant was
entitled to judgment as a matter of law. In the instant case, however, the majority relies
on the absence of statutory law to conclude that this case presents a pure question of
law that must be decided by this court rather than to allow the case to proceed to trial;
that is, whether Christie is male or female.

On its surface, the question of whether a person is male or female seems simple
enough. Complicated with the issues of surgical alteration, sexual identity, and same-
sex marriage, the answer is not so simple. To answer the question, the
majority assumes that gender is accurately determined at birth. Consider the basis for
such a determination. Traditionally, an attending physician or mid-wife determines a
newborn's gender at birth after a visual inspection of the newborn's genitalia. If the child
has a penis, scrotum, and testicles, the attendant declares the child to be male. If the
child does not have a penis, scrotum, and testicles, the attendant declares the child to
be female. This declaration is then memorialized by a certificate of birth, without an
examination of the child's chromosomes or an inquiry about how the child feels about its
sexual identity. Despite this simplistic approach, the traditional method of determining
gender does not always result in an accurate record of gender.

Texas law recognizes that inaccuracies occur in determining, or at least recording,

gender. By permitting the amendment of an original birth certificate upon satisfactory
evidence, Texas law allows these inaccuracies to be corrected. Tex. Health Safety
Code Ann. 191.029 (Vernon 1992). Indeed, Christie's gender was lawfully corrected by
an amended birth certificate months before the trial court ruled on Dr. Prange's motion
for summary judgment. Notably, the amended birth certificate reflects the original filing
date of April 10, 1952, the original date of birth, and an issuance date of August, 14,
1998. Retention of the original filing date indicates that the amended birth certificate has
been substituted for the original birth certificate in the same way an amended pleading
is substituted for an original pleading in a civil lawsuit.

Under the rules of civil procedure, a document that has been replaced by an amended
document is considered a nullity. Rule 65 provides that the substituted instrument takes
the place of the original. Tex.R.Civ.P. 65. Although neither a state statute nor case law
address the specific effect of an amended birth certificate, many cases address the
effect of an amended pleading. See Randle v. NCNB Texas Nat'l Bank, 812 S.W.2d
381, 384 (Tex.App.-Dallas 1991, no writ) (striking of second amended pleading restored
first amended pleading); Wu v. Walnut Equip. Leasing Co., 909 S.W.2d 273,
278 (Tex.App.-Houston [14th Dist.] 1995) (unless substituted instrument is set aside,
the instrument for which it is substituted is no longer considered part of the
pleading), rev'd on other grounds, 920 S.W.2d 285 (Tex. 1996). Under this authority, an
amended instrument changes the original and is substituted for the original. Although a
birth certificate is not a legal pleading, the document is an official state document.
Amendment of the state document is certainly analogous to an amended legal pleading.
In this case, Christie's amended birth certificate replaced her original birth certificate. In
effect, the amended birth certificate nullified the original birth certificate. As a result,
summary judgment was issued based on a nullified document. How then can the
majority conclude that Christie is a male? If Christie's evidence that she was female was
satisfactory enough for the trial court to issue an order to amend her original birth
certificate to change both her name and her gender, why is it not satisfactory enough to
raise a genuine question of material fact on a motion for summary judgment? 

Granted the issues raised by this case are best addressed by the legislature. In the
absence of law addressing those issues, however, this court is bound to rely on the
standard of review and the evidence presented by the parties. Here, the stipulated
evidence alone raises a genuine question about whether Christie is Jonathon's surviving
spouse. Every case need not be precedential. In this case, the court is required to
determine as a matter of law whether Christie is Jonathon's surviving spouse, not to
speculate on the legalities of public policies not yet addressed by our legislature. Under
a focused review of this case, a birth certificate reflecting the birth of a male child
named Lee Cavazos does not prove that Christie Littleton is not the surviving spouse of
Jonathan Littleton. Having failed to prove that Christie was not Jonathon's surviving
spouse, Dr. Prange was not entitled to summary judgment. Because Christie's summary
judgment evidence raises a genuine question of material fact about whether she is the
surviving spouse of Jonathon Littleton, I respectfully dissent.

Littleton v. Prange
From Wikipedia, the free encyclopedia

Jump to navigationJump to search

Littleton v. Prange

Court Fourth Court of Appeals of Texas

Full case Christie Lee LITTLETON, Individually and as Next Heir of

name Jonathon Mark Littleton, Appellant, v. Dr. Mark

 PRANGE, Appellee.

Decided October 27, 1999

Citation(s) 9 S.W.3d 223

Case opinions

Decision by Phil Hardberger

Littleton v. Prange, 9 S.W.3d 223 (1999), is a 1999 lawsuit that voided a marriage

where one of the individuals was a transgender woman, Christie Lee Littleton.
The Fourth Court of Appeals of Texas ruled that, for purposes of Texas law, Littleton
was considered male, and that Littleton's marriage to a man was therefore invalid.
Texas law did not recognize same-sex marriage, at the time of the ruling.[1][2]

Contents

 1Background
 2Case
 3In fiction
 4See also
 5References
 6External links

Background[edit]
Christie Lee Littleton was assigned male at birth, in San Antonio, Texas in 1952.
Littleton dropped out of school at age 15 and began living as a woman. In 1977 Littleton
began taking female hormones and legally changed her name to Christie Lee Cavazos.
In 1980, Littleton underwent surgical reassignment and had the requisite state-issued
identification changed to female.[3] In the 1990s Littleton met and married Jonathan Mark
Littleton in Kentucky, later moving to San Antonio.

Case[edit]
After her Jonathan Littleton's death, Littleton brought a medical malpractice suit against
her husband's doctor, Mark Prange.[4] The defense attorney argued that the marriage
was invalid because Littleton was a biological male. On appeal, Chief Justice Phil
Hardberger relied on the fact that "Texas statutes do not allow same-sex marriages"
and that "male chromosomes do not change with either hormonal treatment or sex
reassignment surgery" in handing down his judgment 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." [5]
The decision made it legal for a cis woman to marry a trans woman who had undergone
sex reassignment surgery and transitioned to female as long as the two partners were
assigned opposite sexes at birth.[6][7]

In fiction[edit]
Littleton v. Prange is cited in the fictional 2010 Drop Dead Diva episode "Queen of
Mean".[8] In the episode, lawyers for a post-operative trans woman cite the case to prove
that her marriage to a cis woman, entered into before she transitioned, was valid,
allowing her to inherit her deceased wife's estate. [citation needed]

See also[edit]

 LGBT rights in Texas

 Same-sex marriage in Texas

References[edit]

1. ^ Engel, David; McCann, Michael (April 24, 2009).  Fault Lines: Tort Law as Cultural Practice.
Stanford University Press. pp.  149–. ISBN 9780804771207. Retrieved November 17,  2012.
2. ^ Littleton v. Prange, No. 99-1214 (Tex. May 18, 2000)
3. ^ Celia Kitzinger & Sue Wilkinson (2006). Genders, sexualities and equal marriage
rights. Lesbian and Gay Psychology Review
4. ^ Dahir, Mubarak (October 10, 2000). Genetics vs. love. The Advocate
5. ^ Littleton v. Prange, 9 SW3d 223
6. ^ Pesquera, Adolfo (September 7, 2000). Lesbian couple get license to wed Transsexual
ruling clears the way. San Antonio Express-News
7. ^ Lindell, Chuck (August 10, 2010).  "Abbott declines transgender marriage question". Austin
American-Statesman. Archived from  the original on July 16, 2011. Retrieved  November 17, 2012.
8. ^ "Queen of Mean".  Drop Dead Diva. Event occurs at 27:39. GRAYSON, IN LITTLETON vs.
PRANGE, Wasn't christie littleton's marriage invalidated because she was identified as a male on her
birth certificate and she couldn't marry another male?

External links[edit]

 Opinion by Chief Justice Phil Hardberger, Concurring Opinion by Justice Karen

Angelini, Dissenting Opinion by Justice Alma López at the Texas Fourth Court of Appeals
website
 Court opinion at Google Scholar
 Story of Christie Lee Littleton, personal website

hide

 v

 t

 e
 LGBT in Texas

Culture Austin

Dallas–Fort Worth
By city
Houston

San Antonio

Black Tie Dinner

Bunnies on the Bayou

Dallas Black Pride

Dallas Pride

Houston Gay and Lesbian Film Festival

Events
Houston Gay Pride Parade

Houston Splash

QCinema

QueerBomb Dallas

Tarrant County Pride

Places Venues Blur Bar

Brazos River Bottom

Briar Patch

Chances Bar

Eagle Houston

EJ's Bar & Grill

F Bar
Guava Lamp

Just Marion & Lynn's

Mary's

Meteor

Michael's Outpost

Montrose Mining Company

Neon Boots Dancehall & Saloon

The Pink Elephant

Rich's Houston

Ripcord

South Beach
 Sue Ellen's

Bishop Arts District, Dallas

Hyde Park

Montrose, Houston

Oak Lawn, Dallas

Pink Dolphin Monument

Westbury, Houston

 The A-List: Dallas

 Bayou City Women's Chorus

 Dallas Voice

 Gay Men's Chorus of Houston

Media  Houston Voice

 The Nuntius & Our Community

 OutSmart

 Regal Crest Enterprises

 Turtle Creek Chorale

1977 Houston Anita Bryant protests

Lutheran High School North controversy

Marriage of Billie Ert and Antonio Molina
History
Murder of Paul Broussard

Rainbow Lounge raid

Walt Whitman Community School

Organizations Atticus Circle

Cathedral of Hope

Dallas Metropolitan Community Church

Equality Texas

GLBT Aggies

Gulf Coast Archive and Museum

Houston GLBT Community Center

 Houston GLBT Political Caucus

Lesbian Health Initiative of Houston

Montrose Center

Oak Lawn Library

Phil Johnson Historic Archives and Research Library

Queer Liberaction

Transgender Archive

Transgender Education Network of Texas

Transgender Foundation of America

By Recognition of same-sex unions

topic Same-sex marriage

Baker v. Wade (1985)

Dallas Principles

Defense of Marriage Act

De Leon v. Perry (2015)
Rights
Gay Student Services v. Texas A&M University (1984)

Houston, Texas Proposition 1

In re Marriage of J.B. and H.B. (2009)

James Byrd, Jr. Hate Crimes Act

Lawrence v. Texas (2003)

Littleton v. Prange (1999)

Texas Proposition 2 (2005)

Categories: 

 LGBT in Texas
 1999 in United States case law
 United States transgender rights case law
 Trans women
 United States same-sex union case law
 Texas state case law
 1999 in Texas
 Transgender marriage