Delgado V Araguz: Response To Petition For Review Filed On Behalf of Nikki Araguz

FILED
14-0404
11/12/2014 5:11:45 PM
tex-3158280
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
No. 14-0404
In the Supreme Court of Texas
HEATHER DELGADO, in her capacity a/n/f TREVOR ARAGUZ
and TYLER ARAGUZ, and SIMONA LONGORIA,
Petitioners,
v.
NIKKI ARAGUZ,
Respondent.
RESPONSE TO PETITION FOR REVIEW
Kent Rutter
State Bar No. 00797364
HAYNES AND BOONE, LLP
1221 McKinney St., Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Facsimile: (713) 547-2600
Alene Ross Levy

ALENE LEVY LAW FIRM, P.L.L.C.
1701 Hermann Drive #3403
Houston, Texas 77004
Telephone: (832) 831-3113
Phyllis Randolph Frye

Darrell Steidley
FRYE & ASSOCIATES, PLLC
3315 Mercer Street
Telephone: (713) 227-1717
Facsimile: (713) 522-2610
Kenneth E. Broughton
REED SMITH LLP
811 Main Street, Suite 1700
Houston Texas 77002
Telephone: (713) 469-3819
Facsimile: (713) 469-3899
Mitchell Katine
John Nechman
KATINE & NECHMAN L.L.P.
1111 North Loop West, Suite 180
Telephone: (713) 808-1000
Facsimile: (713) 808-1107
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF THE CASE ................................................................................ iv
STATEMENT OF JURISDICTION..........................................................................v
ISSUES PRESENTED............................................................................................ vii
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................1
ARGUMENT .............................................................................................................2
I.
There is no conflict among the courts of appeals. ...........................................2
II.
There is no need for statutory construction. ....................................................5
III.
Nikki presented uncontroverted expert proof that she had a sex

change as that term is used in Section 2.005. ................................................9
IV.
The court of appeals did not retroactively apply the 2009

amendment. ....................................................................................................12
V.
The Court should deny review because the central issue is likely to
become moot before this Court could address it. ..........................................12
PRAYER ..................................................................................................................14
CERTIFICATE OF COMPLIANCE .......................................................................17
CERTIFICATE OF SERVICE ................................................................................18
APPENDIX ..................................................................................................Tabs A-D
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TABLE OF AUTHORITIES
Cases
Acker v. Texas Water Commission,
790 S.W.2d 299 (Tex. 1990) ...............................................................................7
City of Rockwall v. Hughes,
246 S.W.3d 621 (Tex. 2008) ...........................................................................6, 7
Combs v. Roark Amusement and Vending, L.P.,
422 S.W.3d 632 (Tex. 2013) ...........................................................................6, 7
In re Estate of Araguz,
2014 WL 576085 (Tex. App.Corpus Christi Feb. 13, 2014, pet.
filed) ........................................................................................................... passim
In re Heilig,
816 A.2d 68 (Md. 2003) ......................................................................................5
Littleton v. Prange,
9 S.W.3d 223 (Tex. App.San Antonio 1999, pet. denied)..................... passim
St. Lukes Episcopal Hosp. v. Agbor,
952 S.W.2d 503 (Tex. 1997) ...............................................................................7
Tex. Lottery Commn v. First State Bank of DeQueen,
325 S.W.3d 628 (Tex. 2010) ...............................................................................6
Windsor v. United States,
133 S. Ct. 2675 (2013) .......................................................................................13
Statutes and Rules
TEX. CONST. art. I, 32(a) .........................................................................................5
TEX. FAM. CODE 2.001 ............................................................................................8
TEX. FAM. CODE 2.005 ................................................................................. v, vii, 4
TEX. GOVT CODE 311.021......................................................................................6
Tex. H.B. 3098 (Mar. 2011) ......................................................................................8
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TEX. R. APP. P. 9.4(i) ................................................................................................17

Tex. S.B. 723 (Mar. 2011) .........................................................................................8
Secondary Sources
Act of April 4, 1997; 75th Leg. R.S., ch. 7, 1, 1997 TEX. GEN. LAWS 7 ................3
Dale Carpenter, How soon could same-sex marriage be decided by the
Supreme Court?, WASH. POST, Nov. 6, 2014 ....................................................14
Dictionary.com ...........................................................................................................7
Ed Whelan, Kennedys Stealth Victory, NATL REVIEW ONLINE, Oct. 6,
2014....................................................................................................................14
Jim Vertuno, GOP Lawmakers Try to Reverse Law on Transgendered,
WASH. TIMES, Apr. 25, 2011 ...............................................................................9
Lyle Dennison, Many more same-sex marriages soon, but where?,
SCOTUSBlog.com, Oct. 6, 2014.......................................................................13
Marcia Coyle, Marriage Showdown Seems Inevitable, NATL LAW
JOURNAL, Nov. 10, 2014 ............................................................................. 13, 14
Merriam-Webster.com ...............................................................................................7
TheFreeDictionary.com .............................................................................................7
To Preserve Marriage and Democracy, NATL REVIEW ONLINE, Nov. 10,
2014 (unsigned editorial) ...................................................................................13
- iii -
STATEMENT OF THE CASE

Nature of the Case:
After firefighter Thomas Araguz died in the line of

duty, his mother, Petitioner Simona Longoria, sought
to invalidate his marriage to Respondent Nikki
Araguz by filing an Application for Letters of
Administration, Application for Determination of
Heirship, Petition to Declare Marriage Void,
Application for Temporary Restraining Orders and
Motion for Transfer to District Court. (1CR10.)
Petitioner Heather Delgado intervened as next friend
of Thomass two sons, filing her own petition to
declare the marriage void. (1CR36.) Nikki answered
and filed a counterclaim to declare her marriage valid.
(1CR300.)
Trial Court:
Judge Randy Clapp, 329th District Court, Wharton

County.
Trial Court Disposition:
Petitioners filed motions for summary judgment, and

Nikki filed a no-evidence motion for summary
judgment. (1CR146, 267; 5CR1523.) In response to
petitioners motions, Nikki presented uncontroverted
expert medical testimony that she is a transsexual
female who was fully female at least a decade
before her marriage to Thomas. (7CR1854-58
(Appendix D).) Instead of submitting controverting
evidence, petitioners argued only that under Littleton
v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio
1999, pet. denied) (Appendix B), Texas does not
recognize a transsexual persons sex change. The
trial court agreed and granted summary judgment for
petitioners. (7CR1869.)
Court of Appeals:
Nikki appealed to the Thirteenth Court of Appeals.

The members of the panel were Chief Justice Rogelio
Valdez, Justice Nelda V. Rodriguez, and Justice Nora
L. Longoria.
- iv -
Disposition on Appeal:
In a unanimous opinion authored by Chief Justice

Valdez, the court of appeals reversed the trial courts
summary judgment for petitioners. Citing the Texas
Legislatures 2009 amendment of section 2.005 of the
Texas Family Code (Appendix C), the court of
appeals rejected petitioners argument that Texas does
not recognize a sex change and recognized that
Littleton v. Prange had been legislatively overruled.
In re Estate of Araguz, 2014 WL 576085 (Tex.
App.Corpus Christi Feb. 13, 2014, pet. filed)
(Appendix A).
The court of appeals affirmed the denial of Nikkis
no-evidence motion for summary judgment and held
that, despite the uncontroverted testimony of her
expert, Nikki was not entitled to rendition of judgment
because she had not filed a traditional motion for
summary judgment. Accordingly, the court remanded
this case to the trial court for further proceedings
consistent with its opinion. 2014 WL 576085, at *14.
STATEMENT OF JURISDICTION
Petitioners state three grounds for this Courts jurisdiction. Nikki disputes all
three grounds. First, while this case involves a statute, its meaning is clear and
leaves no room for statutory interpretation. Second, the decision below does not
conflict with Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999,
pet. denied), because that decision was legislatively overruled by the 2009
amendments to the Family Code. Third, the court of appeals has not committed any
error of law of such importance to the states jurisprudence that it should be
corrected. The court of appeals committed no error, and in any event, it is likely
-v-
that the issue decided by the court of appeals will soon be rendered moot by
developments in federal court.
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ISSUES PRESENTED
1.
The decision below does not conflict with Littleton v. Prange,

9 S.W.3d 223 (Tex. App.San Antonio 1999, pet. denied),
because that decision was legislatively overruled by the 2009
amendment to Family Code section 2.005.
2.
The court of appeals did not, as petitioners contend, hold that the
2009 amendment to Family Code section 2.005 legislatively
overhaul[ed] . . . this states marriage law. Instead, the court of
appeals recognized that the 2009 amendment is consistent with the
Texas prohibition against same-sex marriage because the
amendment provides that a person who has had a sex change is
eligible to marry a person of the opposite sex such that the
marriage is between one man and one woman as set forth in the
Texas Constitution.
3.
The 2009 amendment to Family Code section 2.005 applies here,

because Nikki presented uncontroverted evidence that she has had
a sex change as that term is used in the amendment.
4.
The court of appeals did not, as petitioners contend, retroactively

apply the 2009 amendment to Family Code section 2.005 to
validate a void marriage performed before the amendment took
effect. Instead of validating the marriage, the court of appeals
remanded for determination of a fact issue regarding the timing of
Nikkis sex change.
5.
The central issue in this case will likely become moot before this
Court could address it. It is widely anticipated that the United
States Supreme Court will hold, before its current Term ends in
June 2015, that state laws invalidating same-sex marriages violate
the United States Constitution. If this occurs, Nikkis marriage will
be valid regardless of her sex.
6.
The State of California has determined that Nikki has been female
since birth, and her California judgment and birth certificate are
entitled to full faith and credit in Texas. (Unbriefed issue.)
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STATEMENT OF FACTS
Petitioners Statement of Facts ignores the uncontroverted testimony of
Nikkis medical expert, who explained in detail Nikkis diagnosis of gender
dysphoria and her successful completion of treatment for that condition. See
Araguz, 2014 WL 576085, at *1-2, 10-12. Those facts are correctly stated in the
opinion of the court of appeals.
SUMMARY OF THE ARGUMENT
The central premise of petitioners argument is incorrect. Section 2.005 of
the Family Code, as correctly interpreted and applied by the court of appeals, does
not contravene or undermine Texass prohibition against same-sex marriage.
Instead, the statute brings clarity to the question of which marriages involving
transsexual Texans are same-sex marriages, and which are opposite-sex marriages.
Rejecting the holding of Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San
Antonio 1999, pet. denied), the legislature amended section 2.005 to codify its
entirely reasonable judgment that a marriage between a transsexual woman and
another woman is a same-sex marriage, while a marriage between a transsexual
woman and a man is an opposite-sex marriage.
Petitioners second issue, which concerns the supposedly retroactive
application of the 2009 amendment to section 2.005, presents nothing for this
Courts review. Contrary to petitioners argument, the court of appeals did not
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retroactively apply the 2009 amendment to validate a void marriage performed

before the amendment took effect. Instead of validating the marriage, the court of
appeals remanded the case to the trial court for determination of a fact issue
regarding the timing of Nikkis sex change.
Finally, there is a practical reason why this Court should deny review. It is
widely anticipated that the United States Supreme Court will hold, before its
current Term ends in June 2015, that state laws invalidating same-sex marriages
violate the United States Constitution. If this occurs, Nikkis marriage will be valid
regardless of her sex, and this case will be resolved before this Court has had an
opportunity to address it.
For all of these reasons, the Court should deny the petition for review.
ARGUMENT
I.
There is no conflict among the courts of appeals.

Citing Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999,
pet. denied), petitioners begin their argument with the premise that Nikki is
immutably a male and the decision below therefore conflicts with Littleton.
However, Littleton was legislatively overruled by the legislatures 2009
amendment of section 2.005 of the Family Codean amendment that was
encouraged by the Littleton court itself. See Littleton, 9 S.W.3d at 230, 231, 232;
Araguz, 2014 WL 576085, at *8-9.
-2-
When Littleton was decided in 1999, section 2.005 directed county clerks to
issue marriage licenses to applicants who provided a certified copy of the
applicants birth certificate or . . . some certificate, license or document issued by
this state or another state, the United States, or a foreign government. Act of April
4, 1997; 75th Leg. R.S., ch. 7, 1, 1997 TEX. GEN. LAWS 7. In that case, Christie
Littleton presented testimony from two experts that she had undergone a sex
change and was psychologically, psychiatrically and medically female. 9 S.W.3d at
224-25. However, while stipulating to the truth of the expert testimony, the
defendant argued that Texas law did not recognize a sex change. Finding nothing
to the contrary in Texas law, Chief Justice Hardberger agreed with that argument.
In doing so, however, Chief Justice Hardberger emphasized the need for legislative
guidance:
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.
9 S.W.3d at 230. Justice Karen Angelini, concurring, similarly referred to 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. Id. at
231. Justice Lopez, dissenting, likewise emphasized that [o]ur state legislature has
-3-
not determined guidelines that should govern the recognition of marriages

involving transsexuals. Id. at 232.
By holding that Texas law did not recognize a sex change, Littleton held
that if a transsexual woman were to marry a man, the marriage would be an invalid
same-sex marriage. But the Littleton holding had a curious effect. It cleared the
path for a transsexual woman to marry another woman, resulting in a marriage
whichdespite appearancesunder Littleton would be deemed an opposite-sex
marriage. Uncertain about the legislatures intent, Texas County and District
Clerks Association soon joined the three Littleton justices in requesting guidance
from the legislature. It recommended a wide-ranging clean up bill that proposed
the amendment of section 2.005, among other provisions in the Family Code.
In 2009, the legislature responded to the requests for guidance by amending
section 2.005. The legislature replaced the global reference to some certificate,
license or document with a list of 19 specific documents that may be presented to
prove ones identity when applying for a marriage license. TEX. FAM. CODE.
2.005. Rejecting the Littleton holding that Texas does not recognize a sex
change, the legislature specified that proof of a sex change is one document on
which an applicant may rely to prove his or her identity and obtain a marriage
license. Id. Thus, Texas joined the majority of states in recognizing the reality that
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an individual can have a sex change. See In re Heilig, 816 A.2d 68, 83-84 (Md.
2003).
After examining the amendment to section 2.005, the court of appeals
correctly held that Littleton has been legislatively overruled and an individual
who has had a sex change is eligible to marry a person of the opposite sex. 2014
WL 576085 at *9.
II.
There is no need for statutory construction.

Petitioners claim this case requires the construction of section 2.005 and that
the court of appeals construed the statute in error. They argue that the court of
appeals interpretation of section 2.005 redefine[d] the marriage relationship,
assumes that . . . the legislature intended to change the constitution and
redefine[d] the terms man, woman, and same sex. (Pet. at 11, 12.)
Those allegations are unsupported by the courts opinion. Instead of
changing the constitution, the court of appeals upheld and applied it, holding that
under section 2.005, a person who has had a sex change is eligible to marry a
person of the opposite sex such that the marriage is between one man and one
woman, as set forth in the Texas Constitution. 2014 WL 576085, at *8-9 (citing
TEX. CONST. art. I, 32(a)). Thus, based on the unambiguous statutory language,
the court construed the legislatures amendment to section 2.005 in harmony with
-5-
Texass laws prohibiting same-sex marriage, just as it is required to do by the Code

Construction Act. Id. (citing TEX. GOVT CODE 311.021).
Petitioners also contend that the legislature did not intend section 2.005 to
govern the issuance of marriage licenses. (Pet. at 10-15.) While petitioners concede
that at first glance the words sex change may imply that identity refers to
sexual identity, they insist that the word identity should nevertheless be
construed to exclude sexual identity.
But petitioners cite no ambiguity or any other basis for questioning the
meaning of identity. As the court of appeals noted, words not given a technical
or particular meaning shall be read in context and construed according to the rules
of grammar and common usage. 2014 WL 576085, at *8 (citing TEX. GOVT
CODE 311.021). When a statutes words are unambiguous and yield but one
interpretation, the judges inquiry is at an end. We give such statutes their plain
meaning without resort to rules of construction or extrinsic aids. Combs v. Roark
Amusement and Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013); accord Tex.
Lottery Commn v. First State Bank of DeQueen, 325 S.W.3d 628, 635, 637 (Tex.
2010) (quoting City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008)).
The term identity has been used in the Family Code since its adoption in
1979, and it has been used in Chapter 2 and section 2.005 since its recodification in
1997. The meaning of the word has never been questioned and is universally
-6-
accepted. Dictionaries define the term identity as meaning the condition of

being oneself and not another, 1 the distinguishing character or personality of an
individual,2 and the set of behavioral or personal characteristics by which an
individual is recognizable. 3
Because the statute is unambiguous and identity has but one interpretation,
petitioners bid for statutory construction does not support their petition for
review. See St. Lukes Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.
1997); Combs, 422 S.W.3d at 635; Hughes, 246 S.W.3d at 626. When a statute is
clear and unambiguous, courts need not resort to rules of construction or extrinsic
aids to construe it, but should give the statute its common meaning. Agbor, 952
S.W.2d at 505. That is precisely what the court of appeals did, and that courts
interpretation does not present any error for this Court to review.
Moreover, the direct opposite of petitioners argument is true: as this Court
held in Acker v. Texas Water Commission, A statute is presumed to have been
enacted by the legislature with complete knowledge of the existing law and with
reference to it. 790 S.W.2d 299, 301 (Tex. 1990). Texass constitutional
Dictionary.com, Identity, http://dictionary.reference.com/browse/identity?s=t. All websites

cited in this petition were last visited on November 12, 2014.
2
Merriam-Webster.com, Identity, http://www.merriam-webster.com/dictionary/identity.
TheFreeDictionary.com, Identity, http://www.thefreedictionary.com/identity.
-7-
amendment and statutes that prohibit same-sex marriage are directly concerned
with the sexual identity of applicants for a marriage license. See, e.g., TEX. FAM.
CODE 2.001 (A license may not be issued for the marriage of persons of the
same sex.). Therefore, the sexual identity of persons applying for a marriage
license under section 2.005 is a critical issue. Because section 2.005 expressly
describes the documents that a person may rely on to prove his or her identity
when applying for a marriage license, it is a foregone conclusion that identity as
used in that particular statute must include sexual identity. No other interpretation
makes sense.
Indeed, the effect of section 2.005 is a fact about which both sides of the
transsexual marriage debateexcept for petitionersagree. In March 2011, two
bills were introduced that would have reversed the 2009 amendment. See Tex. S.B.
723, 82d Leg., R.S. (proposing to remove the words or sex change from section
2.005(b)); Tex. H.B. 3098, 82d Leg., R.S. (same). It has been widely reported that
the purpose of the bills was to reinstate Littleton:
Two years after Texas became one of the last states to
allow transgendered people to use proof of their sex
change to get a marriage license, [the two bills] . . .
would prohibit county and district clerks from using a
court order recognizing a sex change as documentation to
get married, effectively requiring the state to recognize a
1999 state appeals court decision [Littleton v. Prange]
that said in cases of marriage, gender is assigned at birth
and sticks with a person throughout their life even if they
have a sex change.
-8-
Jim Vertuno, GOP Lawmakers Try to Reverse Law on Transgendered, WASH.

TIMES, Apr. 25, 2011 (available at www.washingtontimes.com/news/2011/apr/25/
gop-lawmakers-try-to-reverse-law-on-transgendered/). Both bills failed to pass.
Thus, the legislature reaffirmed its view that a marriage between a transsexual
woman and a woman is an invalid same-sex marriage, while a marriage between a
transsexual woman and a man is a valid opposite-sex marriage. The meaning of
section 2.005 is clear, and the purported need for this Court to construe it is nonexistent.
III.
Nikki presented uncontroverted expert proof that she had a sex

change as that term is used in Section 2.005.
Curiously, although Petitioners acknowledge that Nikki is a transgendered
woman (Pet. at ix), they insist that they are not conceding that Nikki is now, or
ever was, a female (Pet. at ix n.1, 1) and mischaracterize Nikki as a man who
merely claims to be a woman (Pet. at 14). That mischaracterization is in conflict
with the uncontroverted evidence in the record concerning Nikkis sexa detailed
affidavit from Dr. Collier Cole, a Clinical Full Professor at the University of Texas
Medical Branch in Galveston and a leading expert on the diagnosis and treatment
of gender identity issues, including gender dysphoria. (Appendix D.)
Gender dysphoria relates to an individuals gender identitythat personal
private sense of being male or female. Id. Individuals with gender dysphoria
recognize early in life that their gender identity is not in line with their anatomy at
-9-
birth. This is possible, Dr. Collier explained, because sexuality per se is a

complex phenomenon which involves a number of underlying factors including
chromosomes, hormones, sexual anatomy, gender identity, sexual orientation, and
sexual expression. 2014 WL 576085, at *10.
Increased awareness of this condition and advances in medicine and
psychiatry led to the development of treatment programs, including the Standards
of Care developed by the World Professional Association of Transgender Health in
1980. These standards describe the real life experience, which is the major
technique used to confirm a diagnosis of and the treatment protocol for gender
dysphoria. Dr. Cole described the real life experience as
a period of time, a minimum of one year, where the
individual begins living in the desired gender role. It is
during this period of time that an individual will undergo
hormone therapy to become more male or female in
appearance, will begin living and working [solely] in that
gender role, will deal with family and relationships, and
then move towards making legal changes in terms of
ones name and gender designation on routine
identification through the courts. After a successful
transition an individual may pursue gender reassignment
surgery to redesign the genitals . . . .
2014 WL 576085, at *10.
Dr. Cole further explained how those standards apply to an individual with
Nikkis background. Nikki perceived herself as female beginning in early
childhood. 2014 WL 576085, at *11. Indeed, she reports wearing female clothes
- 10 -
essentially all of her life. She often was perceived by others as female. Id. When
Nikki turned 18 in 1993, her physician started her on feminizing hormone therapy.
Id. From there she continued living as female in the real world. Her family was
supportive of her gender dysphoria; she had both friendly and intimate
relationships over the years, and she was successful in various work endeavors,
where she always presented herself as female. Id. When Nikki was 21, she
successfully changed her name in the Harris County courts. Id.
Based on these facts, Dr. Cole concluded that Nikki was female at the time
she and Thomas were married:
In my professional opinion she had successfully
completed the real life experience in the late 1990s as
described in the Standards of Care. She then began
saving money to pursue sex reassignment surgery which
was completed in October 2008. In summary, Ms.
Araguz successfully completed the current medicallyaccepted steps for treating the condition of gender
dysphoria as described above. . . . I regard her medically
and psychologically as female.
2014 WL 576085, at *11.
Despite this uncontroverted evidence, petitioners insist that Nikki is male
based on her birth certificate. If petitioners were correct, then Nikkialthough
recognized by experts in gender dysphoria as medically, physically and
psychologically a womanwould be entitled to a Texas marriage license only if
she sought to marry another woman. But petitioners are not correct, as the court of
- 11 -
appeals determined when it held that Dr. Coles testimony raised a fact issue as to
whether Nikki had undergone a sex change.
IV.
The court of appeals did not retroactively apply the 2009 amendment.
Petitioners incorrectly state that the court of appeals found that 2009
amendments could retroactively validate Nikkis void 2008 marriage. (Pet. at 17.)
In truth, the court made no such ruling. Instead, the court held that Nikki was not
entitled to rendition of judgment because she had not filed a cross-motion seeking
a traditional summary judgment. Accordingly, the court reversed the summary
judgment granted to petitioners and remanded the case to the trial court for
resolution of a fact issue concerning the timing of Nikkis sex change. 2014 WL
576085, at *14. Thus, petitioners arguments about the retroactive application of
the statute are not supported by the record and present nothing for review.
V.
The Court should deny review because the central issue is likely to
become moot before this Court could address it.
Finally, the Court should deny review because the central question in this
case is likely to become moot before this Court could address it. The question of
Nikkis sex is relevant only because, under current Texas law, her sex will
determine whether her marriage to Thomas was an opposite-sex marriage or a
same-sex marriage that is invalid under the Family Code and the Texas
Constitution. It appears likely, however, that recent developments in federal law
- 12 -
will place opposite-sex marriages and same-sex marriages on an equal footing,

rendering the issue of Nikkis sex moot.
In the wake of Windsor v. United States, 133 S. Ct. 2675 (2013), five federal
courts of appeals, 31 federal district judges, and 15 state courts have held that state
laws invalidating same-sex marriage violate the United States Constitution. The
issue is currently pending before the Fifth Circuit, which will hear oral argument
the week of January 5, 2015 and could issue a decision as soon as February 2015.
Moreover, it is widely presumed by experts on both sides of the issue that the
United States Supreme Court will soon grant certiorari to resolve the issue on a
national basis, 4 will hold that the state laws invalidating same-sex marriage violate
the United States Constitution,5 and will do so soon. Those following the issue
See, e.g., Marcia Coyle, Marriage Showdown Seems Inevitable, NATL LAW JOURNAL,
Nov.
10,
2014
(available
at
http://www.nationallawjournal.com/courts-litigation/
id=1202675901948/Pressure-Mounts-for-a-Marriage-Equality-Decision-Marriage-ShowdownSeems-Inevitable?mcode=1202615549854&curindex=3&slreturn=20141010210400) (A federal
appellate court decision upholding state bans on same-sex marriages makes U.S. Supreme Court
review of the fundamental constitutional issue nearly inevitable . . . .); To Preserve Marriage
and Democracy, NATL REVIEW ONLINE, Nov. 10, 2014 (unsigned editorial) (available at http://
www.nationalreview.com/article/392425/preserve-marriage-and-democracy-editors) (its hard
to see how the Supreme Court can ignore the issue).
5
Because the Court has denied certiorari in cases in which federal court of appeals have
found a constitutional right to same-sex marriageclearing the way for same-sex marriages to
proceed in many states across the countrya subsequent decision holding that no such right
exists would create legal chaos. Lyle Dennison, Many more same-sex marriages soon, but
where?, SCOTUSBlog.com, Oct. 6, 2014 (available at http://www.scotusblog.com/2014/10/
many-more-same-sex-marriages-soon-but-where/). In the words of National Review writer Ed
Whelan, it is difficult to imagine that the Court would let the current judgments against
marriage go permanently into effect in those states and then rule in cases from other states that
(continued)
- 13 -
have been advised that you might want to plan on tuning in to your favorite 24hour news channel at 10 a.m. (EDT) on Monday, June 29, 2015. 6
Throughout this litigation, Nikki has maintained that even if she were
deemed male under Texas law, her marriage to Thomas will be validated under the
United States Constitution. That event, which appears to be imminent, will render
the question of Nikkis sex moot and will finally resolve this case, in all likelihood
before this Court could issue a decision. For this additional reason, the Court
should deny review.
PRAYER
For all the foregoing reasons, respondent Nikki Araguz respectfully requests
that this Court deny the petition for review. In the alternative, Nikki requests that
the Court either affirm the judgment in its entirety, or affirm the judgment in part
there is no constitutional [same-sex marriage] right. Ed Whelan, Kennedys Stealth Victory,

NATL REVIEW ONLINE, Oct. 6, 2014 (available at http://www.nationalreview.com/benchmemos/389633/kennedys-stealth-victory-ed-whelan). Similarly, James Campbell, senior legal
counsel with the Alliance Defending Freedom, has explained: What we have now is in the
Fourth Circuit and Seventh Circuit, there is judicially mandated same-sex marriage and smack in
the middle is the Sixth Circuit where four states are allowed to define marriage. . . . The court
doesnt look fondly on that lack of uniformity. Marcia Coyle, Marriage Showdown Seems
LAW
JOURNAL,
Nov.
10,
2014
(available
at
Inevitable,
NATL
http://www.nationallawjournal.com/courts-litigation/id=1202675901948/Pressure-Mounts-for-aMarriage-Equality-Decision-Marriage-Showdown-Seems-Inevitable?mcode=1202615549854&
curindex=3&slreturn=20141010210400) (quoting Campbell).
6
Dale Carpenter, How soon could same-sex marriage be decided by the Supreme Court?,
WASH. POST, Nov. 6, 2014 (available at http://www.washingtonpost.com/news/volokhconspiracy/wp/2014/11/06/how-soon-could-same-sex-marriage-be-decided-by-the-supremecourt/).
- 14 -
and, as requested by petitioners, remand the case to the court of appeals for it to
consider Nikkis remaining points of error. (Pet. at 18.)
Respectfully submitted,
HAYNES AND BOONE, LLP
/s/ Kent Rutter

Kent Rutter
1221 McKinney Street, Suite 2100
Telephone: (713) 547-2000
Facsimile: (713) 547-2600
kent.rutter@haynesboone.com
Alene Ross Levy
ALENE LEVY LAW FIRM, P.L.L.C.
1701 Hermann Drive #3403
Telephone: (832) 831-3113
alene@alenelevylaw.com
Kenneth E. Broughton
REED SMITH LLP
811 Main Street, Suite 1700
Houston Texas 77002
Telephone: (713) 469-3819
Facsimile: (713) 469-3899
kbroughton@reedsmith.com
- 15 -
Phyllis Randolph Frye

Darrell Steidley
FRYE & ASSOCIATES, PLLC
3315 Mercer Street
Telephone: (713) 227-1717
Facsimile: (713) 522-2610
prfrye@aol.com
dmsteidley@yahoo.com
- and Mitchell Katine
John Nechman
KATINE & NECHMAN L.L.P.
1111 North Loop West, Suite 180
Telephone: (713) 808-1000
Facsimile: (713) 808-1107
mkatine@lawkn.com
jnechman@lawkn.com
ATTORNEYS FOR RESPONDENT,
NIKKI ARAGUZ
- 16 -
CERTIFICATE OF COMPLIANCE
I hereby certify that this Response to Petition for Review contains a total of
3,719 words, excluding the parts exempted under TEX. R. APP. P. 9.4(i) (1), as
verified by Microsoft Word 2010. This Response is therefore in compliance with
TEX. R. APP. P. 9.4(i)(2)(D).
Dated: November 12, 2014.
/s/ Kent Rutter

Kent Rutter
Attorney for Respondent,
Nikki Araguz
- 17 -
CERTIFICATE OF SERVICE
In accordance with the Texas Rules of Appellate Procedure, I hereby certify
that a true and correct copy of this Response to Petition for Review was served via
E-Service on the following counsel of record on this 12th day of November, 2014:
Counsel for Appellee Simona
Longoria:
Counsel for Appellee National Union

Fire Insurance Company:
Chad Ellis
ELLIS & IRWIN, L.L.P.
302 Jackson Street
Richmond, Texas 77469
Phillip Bechter
SCHWARTZ, JUNELL, GREENBERG
& OATHOUT, L.L.P.
909 Fannin, Suite 2700
Counsel for Appellee Heather

Delgado:
W. Mark Lanier
Kevin P. Parker
THE LANIER LAW FIRM
6810 FM 1960 West
Frank E. Mann
LAW OFFICES OF FRANK E. MANN
6750 West Loop South, Suite 120
Bellaire, Texas 77401
Edward C. Burwell
LAW OFFICES OF EDWARD C.
BURWELL
6750 West Loop South, Suite 120
Bellaire, Texas 77401
/s/ Kent Rutter

Kent Rutter
- 18 -
APPENDIX
Tab A -
In re Estate of Araguz, 2014 WL 576085 (Tex. App.Corpus Christi

Feb. 13, 2014, pet. filed)
Tab B -
Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999,

pet. denied)
Tab C -
TEX. FAM. CODE 2.005
Tab D -
Affidavit of Dr. Collier Cole (7CR1855-1858)
TAB A
In re Estate of Araguz, 2014 WL 576085
(Tex. App.Corpus Christi Feb. 13, 2014, pet. filed)
Page 1
--- S.W.3d ----, 2014 WL 576085 (Tex.App.-Corpus Christi)
(Cite as: 2014 WL 576085 (Tex.App.-Corpus Christi))
Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE
PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR
WITHDRAWAL.
Court of Appeals of Texas,
Corpus Christi Edinburg.
In the ESTATE OF Thomas Trevino ARAGUZ III, Deceased.
No. 131100490CV.
Feb. 13, 2014.
Background: Mother of decedent brought action seeking declaration that marriage into which
decedent had entered two years before his death was void as a matter of law on the ground that it
constituted a same sex marriage. Decedent's former wife intervened as next friend on behalf of
their two minor children also contending that decedent's marriage was void as a matter of law as a
same sex marriage. The 329th District Court of Wharton County granted summary judgment in
favor of decedent's mother and former wife.
Holdings: The Court of Appeals of Texas, Corpus ChristiEdinburg, Valdez, C.J., held that:
(1) fact issue as to the sex of the person the decedent married precluded summary judgment;
(2) mother's failure to plead judicial estoppel precluded her from asserting it on summary judgment; and
(3) the mother and former wife produced some evidence sufficient to defeat no-evidence motion
for summary judgment.
Reversed and remanded.
West Headnotes
[1] Marriage 253
40(1)
2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
253 Marriage
253k40 Presumptions
253k40(1) k. In General. Most Cited Cases
The presumption in favor of the validity of a marriage is one of the strongest, if not the
strongest, known to law; the presumption is, in itself, evidence, and may even outweigh positive
evidence to the contrary.
[2] Marriage 253
40(1)
253 Marriage
253k40 Presumptions
40.1(1)
Marriage 253
253 Marriage
253k40.1 Burden of Proof
253k40.1(1) k. In General. Most Cited Cases
The strength of the presumption in favor of the validity of a marriage increases with the lapse
of time, acknowledgments by the parties to the marriage, and the birth of children; thus, the rule is
that, when a marriage has been duly established, its legality will be presumed, and the burden of
proving the contrary is upon the one attacking its legality.
[3] Marriage 253
17.5(1)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional Unions
Marriage 253
40(1)
253 Marriage
253k40 Presumptions
Page 3
Marriage 253
54(1)
253 Marriage
253k54 Effect of Informal or Invalid Marriage or Union
Because same sex marriages are expressly made void by the Texas Family Code, they are not
presumed to be valid. V.T.C.A., Family Code 6.204(b).
[4] Statutes 361
1383
361 Statutes
361III Construction
361III(M) Presumptions and Inferences as to Construction
361k1381 Other Law, Construction with Reference to
361k1383 k. Prior or Existing Law in General. Most Cited Cases
A statute is presumed to have been enacted by the legislature with complete knowledge of the
existing law and with reference to it.
[5] Statutes 361
1156
361 Statutes
361III Construction
361III(E) Statute as a Whole; Relation of Parts to Whole and to One Another
361k1156 k. Superfluousness. Most Cited Cases
Statutes 361
1374
361 Statutes
361III Construction
361III(M) Presumptions and Inferences as to Construction
361k1372 Statute as a Whole; Relation of Parts to Whole and to One Another
361k1374 k. Giving Effect to Entire Statute and Its Parts; Harmony and Superflu-
Page 4
ousness. Most Cited Cases
The legislature is never presumed to do a useless act; courts will not read statutory language to
be pointless if it is reasonably susceptible of another construction.
[6] Marriage 253
17.5(1)
253 Marriage
Read in the context of the constitutional definition of the marriage relationship, the statutory
term same sex marriage in the Texas Family Code means a marriage between two men or a
marriage between two women. Vernon's Ann.Texas Const. art. 1, 32(a); V.T.C.A., Family Code
6.204(b).
[7] Marriage 253
17.5(1)
253 Marriage
Texas law recognizes that an individual who has had a sex change is eligible to marry a
person of the opposite sex. V.T.C.A., Family Code 2.005(a), (b)(8).
[8] Judgment 228
181(20)
228 Judgment
228V On Motion or Summary Proceeding
228k181 Grounds for Summary Judgment
228k181(15) Particular Cases
228k181(20) k. Domestic Relations. Most Cited Cases
Genuine issue of material fact as to the sex of the person with gender dysphoria with whom the
decedent entered into a marriage prior to his death precluded summary judgment in action by
decedent's mother and by his former wife, seeking declaration that the marriage was void as a
Page 5
matter of law on the ground that it constituted a same sex marriage.
[9] Health 198H
821(5)
198H Health
198HV Malpractice, Negligence, or Breach of Duty
198HV(G) Actions and Proceedings
198Hk815 Evidence
198Hk821 Necessity of Expert Testimony
198Hk821(5) k. Particular Procedures. Most Cited Cases
The condition of gender dysphoria, including its symptoms, diagnosis, and treatment, are issues of fact not within common knowledge and therefore require expert testimony.
[10] Estoppel 156
68(2)
156 Estoppel
156III Equitable Estoppel
156III(B) Grounds of Estoppel
156k68 Claim or Position in Judicial Proceedings
156k68(2) k. Claim Inconsistent with Previous Claim or Position in General. Most
Cited Cases
The doctrine of judicial estoppel precludes a party from adopting a position inconsistent with
one that it maintained successfully in an earlier proceeding.
[11] Estoppel 156
115
156 Estoppel
156III Equitable Estoppel
156III(E) Pleading
156k115 k. Issues, Proof, and Variance. Most Cited Cases
In action by mother of decedent, seeking declaration that marriage into which decedent had
entered two years before his death was void as a matter of law on the ground that it constituted a
same sex marriage, the mother's failure to plead the affirmative defense of judicial estoppel pre-
Page 6
cluded her from asserting it for the first time in her motion for summary judgment. Vernon's
Ann.Texas Rules Civ.Proc., Rule 94.
[12] Judgment 228
185.3(9)
228 Judgment
228k182 Motion or Other Application
228k185.3 Evidence and Affidavits in Particular Cases
228k185.3(9) k. Domestic Relations. Most Cited Cases
In action by decedent's mother and by his former wife, seeking declaration that the marriage
into which decedent had entered two years before his death was void as a matter of law on the
ground that it constituted a same sex marriage, mother and former wife produced some evidence
sufficient to raise a genuine issue of material fact as to whether the sex of the individual the decedent married was male, and therefore sufficient to defeat that individual's no-evidence motion
for summary judgment; although the summary judgment evidence produced by mother and former
wife did not include any expert testimony, their evidence showed that individual who had entered
into the marriage had male sex organs during the marriage. Vernon's Ann.Texas Rules Civ.Proc.,
Rule 166a(i).
Kenneth E. Broughton, Alene R. Levy, Mitchell Katine, Phyllis Randolph Frye, John Nechman,
Kent Geoffrey Rutter, Darrell Steidley, for Nikki Araguz.
Lawrence P. Wilson, Edward D. Burwell, W. Mark Lanier, Kevin P. Parker, Frank Mann, for
Simona Rodriguez Longoria.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and LONGORIA.
OPINION
Opinion by Chief Justice VALDEZ.
*1 After volunteer firefighter Thomas Trevino Araguz III died in the line of duty, his mother,
Simona Longoria, filed this suit to declare his marriage to Nikki Araguz void as a matter of law on
the grounds that it constituted a same sex marriage.FN1 See TEX. CONST. art. I, 32(a) (Marriage
in this state shall consist only of the union of one man and one woman.); TEX. FAM.CODE
ANN. 6.204(b) (West 2006) (A marriage between persons of the same sex or a civil union is
Page 7
contrary to the public policy of this state and is void in this state.). Subsequently, Thomas's
ex-wife, Heather Delgado, intervened as next friend on behalf of their two minor children also
contending that Thomas's marriage to Nikki was void as a matter of law because it constituted a
same sex marriage. See TEX. CONST. art. I, 32(a); TEX. FAM.CODE ANN. 6.204(b). Nikki
answered the suit and filed a counterclaim to declare the marriage valid. See TEX. CIV. PRAC. &
REM.CODE ANN. 37.003004 (West 2008). The parties filed opposing motions for summary
judgment. See TEX.R. CIV. P. 166a(c), (i). The trial court granted Simona and Heather's motions
and denied Nikki's motion. The court then entered a final judgment in favor of Simona and Heather
declaring the marriage void as a matter of law. See TEX. FAM.CODE ANN. 6.204(b). For the
reasons set forth below, we conclude that the trial court erred in granting the summary judgment
because there is a genuine issue of material fact regarding Nikki's sex and whether the marriage
was a same sex marriage. See TEX.R. CIV. P. 166a(c), (i). Accordingly, we reverse the trial court's
judgment and remand for further proceedings consistent with this opinion. See TEX.R.APP. P.
43.2(b).
I. BACKGROUND FN2
Nikki was born in California in 1975 with male sex organs, including a penis, testes, and
scrotum, and without any female sex organs, such as a vagina or uterus. The name Justin Graham
Purdue appeared on Nikki's original birth certificate with the designation that Nikki was male.
Nevertheless, since early childhood, Nikki was largely taken by others as a girl. She always reacted favorably to this. By the age of four or five, she expressed feelings of being female. Nikki
began wearing female clothes as an adolescent and has continued to do so for essentially all of her
life. At the age of eighteen, Nikki's physician diagnosed her with gender dysphoria (also known
as gender identity disorder), a medical condition whereby an individual has longstanding and
persistent feelings of being a member of the opposite sex. Nikki's physician started her on feminizing hormone therapy, and she continued living as a female.
At the age of twenty-one, Nikki filed a petition in the 245th District Court of Harris County,
Texas to have her name changed. In the petition, Nikki states the following: I, Justin Purdue, am a
woman with male anatomy, working toward a sex change. I have been living and working as a
woman for over one year and seek to make my new name legal and permanent. On February 9,
1996, the district court issued an order granting a name change from Justin Graham Purdue to
Nikki Paige Purdue. Subsequently, on April 27, 1996, Nikki filed an application in California to
amend her birth certificate to reflect the name change. Thereafter, on August 21, 1996, the State of
California issued an amended birth certificate reflecting the name change.
Page 8
*2 After changing her name, Nikki obtained a driver's license from Kansas with the designation that she is female. She then used the Kansas driver's license to obtain a Texas driver's license
with the designation that she is female.
On August 19, 2008, Nikki presented her Texas driver's license to the County Clerk of
Wharton County, Texas to obtain a marriage license. The marriage license indicates that Nikki is a
woman. On August 23, 2008, Thomas and Nikki were married in a ceremonial wedding in
Wharton County. At the time of the wedding, Nikki had male sex organs, but she was living as a
woman. After the wedding, Thomas and Nikki cohabitated as husband and wife until the time of
Thomas's death in 2010.
In October of 2008, Nikki underwent genital reassignment or neocolporrhaphy surgery in
which her testes were removed and her penis and scrotum were surgically altered to resemble and
function as a labia, clitoris, and vagina. The procedure was performed in Texas by Dr. Marci
Bowers, a Texas licensed physician. The parties dispute whether Thomas was aware of Nikki's
operation. On April 28, 2010, just two months before his death, Thomas gave a deposition in a
family court proceeding involving the custody of his two sons in which he testified that he did not
know that Nikki had undergone genital reassignment surgery. Thomas testified that he did not
know that his wife was formerly male or that she had any type of gender surgery. According to
Thomas's testimony, Nikki represented herself as female prior to their marriage. Nikki maintains
that before Thomas's deposition, she and Thomas agreed to take the position that she was female
from birth. According to Nikki, Thomas was fully aware of the genital reassignment surgery.
Thomas died on July 3, 2010. On July 15, 2010, Nikki filed a petition in the superior court of
San Francisco County, California requesting the issuance of a new birth certificate reflecting the
change of her sex from male to female. On July 20, 2010, the California court entered an order
changing Nikki's sex from male to female. Thereafter, on August 30, 2010, the State of California
issued a birth certificate stating that Nikki is female.
II. PROCEDURAL HISTORY
As set forth above, Thomas's mother, Simona, initiated this suit on July 12, 2010 seeking to
have Thomas's marriage to Nikki declared void as a same sex marriage. See TEX. FAM.CODE
ANN. 6.204(b). Thomas's ex-wife, Heather, subsequently intervened as next friend on behalf of
their two minor children also seeking to have the marriage declared void. See id. Nikki answered
the suit and filed a counterclaim to declare the marriage valid. The parties then filed opposing
motions for summary judgment as follows.
Page 9
A. Heather's Motion for Summary Judgment
On October 26, 2010, Heather filed a traditional motion for summary judgment, with attached
evidence,FN3 asserting the following grounds for summary judgment:
*3 (1) The marriage was void pursuant to Article I, Section 32 of the Texas Constitution, which
provides that marriage in this state shall consist only of the union of one man and one woman.
TEX. CONST. art. I, 32(a).
(2) The marriage was void pursuant to Section 6.204(b) of the Texas Family Code, which provides that a marriage between persons of the same sex is ... contrary to the public policy of this
state and is void as a matter of law. TEX. FAM.CODE ANN. 6.204(b).
(3) As a matter of law, no informal marriage could have existed between Thomas and Nikki
because Section 2.401 of the Texas Family Code provides for informal marriage only between a
man and a woman, as decided by the San Antonio Court of Appeals in Littleton v. Prange, 9
S.W.3d 223, 231 (Tex.App.-San Antonio 1999, pet. denied). See TEX. FAM.CODE ANN.
2.401 (West 2006).
See TEX.R. CIV. P. 166a(c).
B. Nikki's Motion for Summary Judgment
On April 21, 2011, Nikki filed a no evidence motion for summary judgment asserting that
she was entitled to judgment as a matter of law because Heather and Simona could produce no
evidence that Thomas and Nikki did not have a valid ceremonial marriage or, alternatively, a valid
informal marriage. See TEX.R. CIV. P. 166a(i).FN4
C. Heather's Response to Nikki's Motion
On May 13, 2011, Heather filed her response to Nikki's motion for summary judgment with
evidence attached.FN5 In her response, Heather argued that summary judgment was not proper
because of the following:
(1) It is undisputed that as of the date of the statutory marriage between Thomas ... and Nikki ...,
the participants in the ceremony were both men.
(2) No informal marriage could have existed between Thomas and Nikki after the genital reas-
Page 10
signment surgery in 2008 because Nikki ... took no steps to legally change her sex from male to
female until July 15, 2010, after Thomas's death.
(3) No informal marriage could exist because, under Littleton, a person's gender, while subject to
physical manipulation for the purpose of assuming the appearance of an alternate gender, is
nonetheless governed by the gender of the person at birth, as determined by both anatomical and
genetic examinations of the person. See Littleton, 9 S.W.3d at 224.
D. Simona's Response to Nikki's Motion
On April 21, 2011, Simona filed her response to Nikki's motion for summary judgment with
evidence attached.FN6 In her response, Simona argued that a no evidence summary judgment was
improper because Nikki had the burden of proof to establish the existence of an informal marriage.
See State v. Mireles, 904 S.W.2d 885, 888 (Tex.App.-Corpus Christi 1995, pet. ref'd) (The burden
of proof is on the one seeking to establish the existence of such a marriage.); but see TEX.
FAM.CODE ANN. 1.101 (West 2006) ([E]very marriage entered into in this state is presumed
to be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter
6 and annulled as provided by that chapter.).
E. Simona's Motion for Summary Judgment
*4 Also on April 21, 2011, Simona filed a traditional motion for summary judgment, with
attached evidence,FN7 asserting the following grounds for summary judgment:
(1) The purported marriage between Thomas and Nikki was void because at the time of their
marriage, both Thomas and Nikki were males. See TEX. FAM.CODE ANN. 6.204(b).
(2) No informal marriage could exist between Thomas and Nikki after the date of Nikki's operation (October 7, 2008) based on Littleton. See Littleton, 9 S.W.3d at 230.
(3) The purported marriage is void based on judicial estoppel because Nikki previously claimed
that she was a male in a separate court proceeding.
See TEX.R. CIV. P. 166a(c).
F. Nikki's Response to Heather and Simona's Motions
On May 13, 2011, Nikki filed her response to Heather and Simona's motions for summary
judgment with evidence attached.FN8 In her response, Nikki argued that summary judgment was
Page 11
improper based on the following grounds:
(1) Littleton was overruled by the 2009 amendment to section 2.005 of the Texas Family Code,
which added an original or certified copy of a court order relating to the applicant's name
change or sex change to the list of acceptable proof of identity and age for purposes of obtaining a marriage license. See TEX. FAM.CODE ANN. 2.005(b)(8) (West Supp.2013).
(2) Nikki's gender has always been female, as evidenced by the birth certificate issued by the
State of California on August 30, 2010 stating that she is female and the corresponding
judgment of the California court, to which the court must give full faith and credit by ruling that
the other two birth certificates issued by the State of California in 1975 and 1996, respectively,
and her discovery answers are a nullity that cannot be proper summary judgment evidence. See
U.S. Const. art. IV, 1.FN9
(3) Nikki was female at the time of the ceremonial marriage because according to the World
Professional Association for Transgender Health (WPATH) standards of care, she successfully transitioned to the female sex years before she met Thomas.FN10
(4) Nikki was female prior to her genital reassignment surgery, as evidenced by her medical
records prepared by Marci Bowers, M.D.FN11
(5) An informal marriage existed between Thomas and Nikki. See TEX. FAM.CODE ANN.
2.401(a).
(6) Simona did not plead judicial estoppel.
(7) The Equal Protection clause of the Fourteenth Amendment to the United States Constitution
requires Texas to recognize a post-operative transgendered individual's current sex. See U.S.
CONST. amend. XIV, 1.
G. The Trial Court's Ruling
On May 26, 2011, the trial court granted Heather and Simona's traditional motions for summary judgment and denied Nikki's no evidence motion for summary judgment. See TEX.R. CIV.
P. 166a(c), (i). The trial court's judgment declares that Thomas was not married on the date of his
death and that any purported marriage between Thomas and Nikki was void as a matter of law. The
remaining issues pertaining to the estate were severed from this cause, and the trial court's judg-
Page 12
ment became final and appealable.
III. ISSUES ON APPEAL
*5 On appeal, Nikki argues that the trial court erred in granting summary judgment for the
following reasons:
(1) Thomas and Nikki's marriage was valid because the uncontroverted summary judgment
evidence established that Nikki was female.
(2) Thomas and Nikki's marriage was validated by the 2009 amendments to the Texas Family
Code.
(3) Thomas and Nikki's marriage was valid under the United States and Texas Constitutions,
considering that
a. The California judgment and birth certificate identifying Nikki's sex as female are entitled to
full faith and credit in Texas, and
b. The trial court's judgment invalidating the marriage violates Nikki's rights under the Texas
Equal Rights Amendment and the Fourteenth Amendment to the United States Constitution.
(4) Thomas and Nikki's marriage would be valid in most jurisdictions.
(5) The Littleton decision is not controlling.
(6) The judgment cannot be affirmed based on judicial estoppel.
(7) Even if Thomas and Nikki's marriage were incorrectly deemed a same sex marriage, Texas
courts cannot constitutionally declare it void on that basis.
IV. STANDARD OF REVIEW
We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex.2009) (citing Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex.2003)). We review the evidence presented in the motion and response in
the light most favorable to the party against whom the summary judgment was rendered, crediting
evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence
Page 13
unless reasonable jurors could not. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex.2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.2002)). The party
moving for traditional summary judgment bears the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Id. (citing TEX.R. CIV. P.
166a(c); Knott, 128 S.W.3d at 216). When both sides move for summary judgment and the trial
court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented. Id. (citing Comm'rs Court of Titus
County v. Agan, 940 S.W.2d 77, 81 (Tex.1997)). In such a situation, we render the judgment as
the trial court should have rendered. Id. (citing Agan, 940 S.W.2d at 81).
In this case, the parties filed competing motions for summary judgment in which each litigant
asserted that there were no genuine issues of material fact; however, the Texas Supreme Court has
explained as follows:
When both sides file motions for summary judgment, each litigant in support of his own motion
necessarily takes the position that there is no genuine issue of fact in the case and that he is entitled to judgment as a matter of law. While it does not necessarily follow that when both sides
file motions for summary judgment there is no genuine fact issue in the case, it does indicate that
the legal controversy is one which generally turns upon an interpretation of some rule of law and
both sides are prepared to present their respective contentions with reference thereto.
*6 Ackermann v. Vordenbaum, 403 S.W.2d 362, 36465 (Tex.1966); see also Coker v. Coker,
650 S.W.2d 391, 392 (Tex.1983) (reversing summary judgment and remanding for trial even
though both sides moved for summary judgment and asserted settlement agreement was unambiguous).
V. APPLICABLE LAW
The Texas Constitution defines a marriage as the union of one man and one woman. See
TEX. CONST. art. I, 32(a). Furthermore, the Texas Family Code provides that [a] marriage
between persons of the same sex or a civil union is contrary to the public policy of this state and is
void in this state. TEX. FAM.CODE ANN. 6.204(b). Consistent with the foregoing, the Texas
Family Code states that [a] license may not be issued for the marriage of persons of the same
sex, id. 2.001(b) (West 2006), and it also provides that an informal marriage may exist only
between a man and woman. Id. 2.401(a).
[1][2][3] [I]n order to provide stability for those entering into the marriage [relationship] in
Page 14
good faith ... it is the policy of this state to preserve and uphold each marriage against claims of
invalidity unless a strong reason exists for holding the marriage void or voidable. Id. 1.101
(West 2006). The presumption in favor of the validity of a marriage ... is one of the strongest, if,
indeed, not the strongest, known to law. Tex. Employers' Ins. Ass'n v. Elder, 155 Tex. 27, 282
S.W.2d 371, 373 (1955). The presumption is, in itself, evidence, and may even outweigh positive
evidence to the contrary. Id. The strength of the presumption increases with the lapse of time,
acknowledgments by the parties to the marriage, and the birth of children. Id. Thus, the
well-established rule [is] that, when a marriage has been duly established its legality will be presumed, and the burden of proving the contrary is upon the one attacking its legality. Id. However,
because same sex marriages are expressly made void by Chapter 6 [of the Texas Family Code],
they are not presumed to be valid. TEX. FAM.CODE ANN. 1.001.
VI. DISCUSSION
Over the course of the last decades, States with same-sex prohibitions have moved toward
abolishing them. Lawrence v. Texas, 539 U.S. 558, 570, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
Twelve states and the District of Columbia have decided that same-sex couples should have the
right to marry and so live with pride in themselves and their union and in a status of equality with
all other married persons. United States v. Windsor, U.S. , 133 S.Ct. 2675, 2689, 186
L.Ed.2d 808 (2013). In 2013, the United States Supreme Court struck down the provision of the
Defense of Marriage Act (DOMA) that prohibited the federal government from recognizing
same sex marriages. See id. at 2696 (The federal statute is invalid, for no legitimate purpose
overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage
laws, sought to protect in personhood and dignity.) (citing 1 U.S.C. 7). To date, these developments have not affected the law banning same sex marriages in Texas. See TEX. FAM.CODE
ANN. 6.204(b).
*7 The dispute in this case is whether Thomas and Nikki had a same sex marriage in contravention of Texas law. See TEX. CONST. art. I, 32(a); TEX. FAM.CODE ANN. 6.204(b). The
resolution of the dispute will require a determination of Nikki's sex, an issue on which the parties
strongly disagree. FN12 In granting the summary judgment, the trial court declared that the marriage
was void under Texas law. See TEX. FAM.CODE ANN. 6.204(b). In doing so, it necessarily
found that Nikki was a man at the time of Thomas's death such that the marriage was between two
men in violation of the Texas Constitution and the Texas Family Code. See TEX. CONST. art. I,
32(a); Tex. Fam.Code Ann. 6.204(b). We conclude that this was an error because, on the record
before us, the question of Nikki's sex is a disputed issue of material fact that precludes summary
judgment. See Tex. Commerce Bank v. Grizzle, 96 S.W.3d 240, 252 (Tex.2002) (Summary
Page 15
judgment is appropriate only when there are no disputed issues of material fact and the moving
party is entitled to judgment as a matter of law.).
A. Was Summary Judgment Proper Based on Littleton ?
As set forth above, Heather and Simona asserted that summary judgment was proper based on
the Littleton decision by the San Antonio Court of Appeals. See Littleton, 9 S.W.3d at 224.
Therefore, we will address whether the trial court's summary judgment must be upheld based on
Littleton.
Littleton involved a final summary judgment rendered against an individual named Christie
Lee Littleton who was born with male sex organs, was later diagnosed with gender dysphoria, and
underwent medical treatment for the condition, which culminated in a complete sex reassignment such that she became medically a woman. Id. at 22425. Nevertheless, the trial court
ruled that Christie's subsequent marriage to Jonathan Mark Littleton was void as a same sex marriage based on Christie's original birth certificate stating that she was male. Id. at 225.
Christie appealed to the Fourth Court of Appeals in San Antonio, which was unable to reach a
unanimous decision. Two of the three justices who heard the case agreed to affirm the trial court's
judgment on the basis that Christie was not a surviving spouse under the Texas wrongful death
statute. Id. at 23132. Chief Justice Hardberger wrote an opinion, designated as the majority
opinion; however, the other two panel members did not join his opinion, but instead wrote separately. Id. at 22334. Justice Angelini wrote a concurring opinion, id. at 23132, and Justice Lopez
wrote a dissenting opinion. Id. at 23234.
The central theme of Chief Justice Hardberger's opinion was that Texas law does not recognize
any individuals as having successfully changed their sex. Id. at 230. In her concurring opinion,
Justice Angelini was careful to limit her discussion to the preoperative distinction between
Christie Lee Littleton and a typical male. Id. at 232. Although Justice Angelini did not purport to
express a position on the issue of whether Texas law recognizes that an individual may change his
or her sex, her concurring opinion focuses on Christie's pre-operative condition and fails to address
Christie's post-operative condition, thus implying that Texas law does not recognize the possibility
of a sex change. See id. at 23132.
*8 Heather and Simona relied extensively, if not exclusively, on the Littleton decision as authority for their motions for summary judgment. Yet, even if Littleton was correct at the time it was
decided in 1999, it is possible that the legal landscape has changed since then. And in fact, it has.
Page 16
In 2009, the legislature amended the family code to add a court order related to an applicant's
sex change as a form of acceptable proof to establish an applicant's identity and age, and thus,
eligibility, to obtain a marriage license. See TEX. FAM.CODE ANN. 2.005(b)(8). The parties
dispute the meaning of the amendment. Nikki cites it as her primary authority, while Heather and
Simona dismiss it as being, in essence, meaningless surplusage that did not have the effect of legitimizing any individual's sex change under Texas law. We disagree with Heather and Simona
on this point.
[4][5] A statute is presumed to have been enacted by the legislature with complete knowledge
of the existing law and with reference to it. Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300
(Tex.1990). Furthermore, the legislature is never presumed to do a useless act. Hunter v. Fort
Worth Cap. Corp., 620 S.W.2d 547, 551 (Tex.1981). Courts will not read statutory language to be
pointless if it is reasonably susceptible of another construction. City of LaPorte v. Barfield, 898
S.W.2d 288, 292 (Tex.1995) (citing Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987)).
The Texas Code Construction Act provides in relevant part:
In enacting a statute, it is presumed that:
(a) compliance with the constitutions of this state and the United States is intended;
(b) the entire statute is intended to be effective;
(c) a just and reasonable result is intended;
(d) a result feasible of execution is intended; and
(e) public interest is favored over any private interest.
TEX. GOV'T CODE ANN. 311.021 (West 2013) (emphasis added). The Act also provides as
follows:
(a) Words and phrases shall be read in context and construed according to the rules of grammar
and common usage.
(b) Words and phrases that have acquired a technical or particular meaning, whether by legis-
Page 17
lative definition or otherwise, shall be construed accordingly.
Id. 311.011 (West 2013); Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644,
651 (Tex.2006) (Ordinarily, the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on.).
[6] Read in the context of the constitutional definition of the marriage relationship, the statutory term same sex marriage means a marriage between two men or a marriage between two
women. See TEX. CONST. art. I, 32(a); TEX. FAM.CODE ANN. 6.204(b). The term sex
change is also used in the marriage statute, but it is not defined. See TEX. FAM.CODE ANN.
2.005(b)(8). Therefore, we give the term its ordinary meaning. Owens Corning v. Carter, 997
S.W.2d 560, 57273 (Tex.1999) (When interpreting a statute, we begin with the words of the
statute itself, giving words their ordinary meaning.) (citing In re Bay Area Citizens Against
Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex.1998)).
*9 Here, the legislature has clearly used the words sex change in a way that establishes that a
person who has had a sex change is eligible to marry a person of the opposite sex such that the
marriage is between one man and one woman, as set forth in the Texas Constitution. See TEX.
CONST. art. I, 32(a). The statute provides in relevant part as follows:
PROOF OF IDENTITY AND AGE.
(a) The county clerk shall require proof of the identity and age of each applicant [for a marriage
license].
(b) The proof must be established by ...
(8) an original or certified copy of a court order relating to the applicant's name change or sex
change ....
See TEX. FAM.CODE ANN. 2.005(a), (b)(8) (emphasis added).
The statute clearly contemplates a court of competent jurisdiction issuing an order recognizing
and essentially certifying an individual's change of sex, much like a name change. However, unlike a name change, which is governed by Chapter 45 of the Texas Family Code, there is no corresponding chapter of the family code governing a sex change. See id. 45.001.006 (West
Page 18
2002). There are no rules or standards set forth in the statute, and the legislative history is silent
with respect to this provision of the statute. To date, there have been two failed attempts to delete
the words sex change from the statute. See Tex. S.B. 723, 82d Leg., R.S. (proposing to remove
the words or sex change from section 2.005(b)); Tex. H.B. 3098, 82d Leg., R.S. (same). However, the statute's future is not at issue in this case. Today, we deal with the statute as it was enacted
by Texas lawmakers and signed into law by the governor.
For our purposes, the key words in the statute are identity and sex change. See TEX.
FAM.CODE ANN. 2.005(a), (b)(8). Identity refers to the applicant as an individual, and the
term sex change refers to the applicant changing his or her sex. See id. Reading the statutory
provision as a whole, it states that an applicant who has had a sex change may use a court order
related to that sex change as proof of identity and thus eligibility to obtain a marriage license. See
id. Reading the statute to conform with the definition of a marriage in the Texas Constitution and
the statutory ban on same sex marriages, which are crystal clear in their meaning and effect, we
hold that under Texas law a valid marriage could exist between Nikki and Thomas only if Nikki
was a woman during their marriage such that there was a marriage between one man and one
woman, as set forth in the Texas Constitution. See TEX. CONST. art. I, 32(a). Otherwise, it was
a same sex marriage banned by Texas law. See TEX. FAM.CODE ANN. 6.204(b).
[7] In sum, we hold that Texas law recognizes that an individual who has had a sex change is
eligible to marry a person of the opposite sex. See id. 2.005(a), (b)(8). For these reasons, we
conclude that the trial court's summary judgment in this case cannot be affirmed based on Littleton
because Littleton has been legislatively overruled. See id.
B. Is There a Fact Issue Precluding Summary Judgment?
*10 [8] In their respective motions, Heather and Simona argued that Nikki is a man based on
the uncontroverted summary judgment evidence that she was born with male sex organs, had male
sex organs at the time of her ceremonial marriage to Thomas, and was originally designated as
male on her California birth certificate.
In response, Nikki objected to the evidence of her original birth certificate on the basis that it
is now a legal nullity because the State of California subsequently issued a new birth certificate
stating that she is female, which Nikki produced as summary judgment evidence. Nikki also
presented the expert report of Dr. Cole stating that sexuality per se is a complex phenomenon
which involves a number of underlying factors. FN13 According to Dr. Cole's affidavit, the factors
that should be taken into account when identifying someone as male or female include chro-
Page 19
mosomes, hormones, sexual anatomy, gender identity, sexual orientation, and sexual expression.
Dr. Cole notes that while sexual anatomy at birth is typically the basis for determining an
individual's sex, this is sometimes done incorrectly.
Dr. Cole's affidavit states in relevant part as follows:
With respect to gender dysphoria it is the factor of gender identity which is the primary focus. By
definition gender identity is that personal private sense of being male or female. Of note, there
also exist certain conditions where individuals may be born with chromosomal anomalies (such
as XXY) or anatomical anomalies (such as intersex condition), in such cases it is recommended
today that physicians not intervene until an individual is of age and has accepted clearly his or
her gender identity. Then, as in the case of gender dysphoria, surgical and medical procedures
can be brought to bear, to line up that person's body to fit the mind and thereby complete
treatment and resolve the underlying issue.
Many individuals with gender dysphoria will recognize such themselves early in life and move
forward with pursuing treatment intervention on their own. Others will go to professionals who
can assist them in this regard. With increased awareness of this condition following the Christine
Jorgenson case in 1952 many centers around the country began developing programs. However,
it was not until 1980 that the Harry Benjamin International Gender Dysphoria Association was
created and established the first Standards of Care, these are now in the sixth edition and can be
found on the website of the World Professional Association for Transgender Health
(WPATH.org ). As in other areas of medicine once a condition becomes more understood protocols or standards are developed to assist people seeking help for a particular condition as well
as to aid treating professionals working with them. In this case the major technique used to
confirm a diagnosis of gender dysphoria is the real life experience. Essentially this is a period
of time, a minimum of one year, where the individual begins living in the desired gender role. It
is during this period of time that an individual will undergo hormone therapy to become more
male or female in appearance, will begin living and working in that gender role, will deal with
family and relationships, and then move towards making legal changes in terms of one's name
and gender designation on routine identification through the courts. After a successful transition
an individual may pursue gender reassignment surgery to redesign the genitals in the desired
fashion....
*11 Many individuals cannot afford surgery and so will continue to live without such. It should
be noted that this does not make them any less gender dysphoric than someone who does com-
Page 20
plete surgery. It is completion of the real life experiences itself which marks the point of change.
Afterwards the individual, either one who has had surgery or one [who] has not, can pursue legal
steps to change the birth certificate in the desired direction. Overall this method of treatment
(i.e., The Standards of Care) is recognized and accepted by contemporary and medical entities
(e.g., Texas Department of Health, the Endocrine Society of the U.S.).
After providing the foregoing explanation of gender dysphoria and the accepted standards of
care for the condition, Dr. Cole offers the following information concerning Nikki:
With respect to Nikki Araguz ... I was provided a number of medical records to review before I
interviewed her. These records dated back to the early 1990's and revealed much about her
transition process. (A listing of these documents can be found in the attachment with this
statement.) They suggest that Ms. Araguz had been following the aforementioned steps of the
real life experience, including living as female, undergoing feminizing hormone therapy, and
experiencing satisfying relationships with family and others. In addition to her records, I had a
face-to-face interview with her in early January. She was born in Carmel, California, and raised
primarily in Houston, Texas. From an early age she recalls longstanding feelings of being female, an observation often seen as noted above. Indeed, she reports wearing female clothes essentially all of her life. She often was perceived by others as female until they were corrected.
This would suggest a strong female sexual identity.
At age 18 her physician started her on feminizing hormone therapy. (No evidence of chromosome testing was reported.) From there she continued living as female in the real world. Her
family was supportive of her gender dysphoria, she had both friendly and intimate relationships
over the years, and she was successful in various work endeavors, where she always presented
herself as female. At age 21 she successfully changed her name legally in the Houston courts.
None of the records reviewed indicate any psychiatric problems related to her gender dysphoria
or living as female. In my professional opinion she had successfully completed the real life
experience in the late 1990's as described in the Standards of Care. She then began saving
money to pursue sex reassignment surgery which was completed in October 2008. In summary,
Ms. Araguz successfully completed the current medically-accepted steps for treating the condition of gender dysphoria as described above. She essentially had been living as a female from an
early age. Then, she began seeing a physician to initiate her feminizing hormone therapy which
remains ongoing at this time. Also, she successfully dealt with family members and others in her
life and also worked in the real world as a female. Eventually she was fortunate to complete sex
reassignment surgery. However, as noted above many such individuals do not complete surgery
Page 21
for financial reasons. Surgery per se is not the definitive point that makes someone female.
Rather, it is completion of the real life experience which documents ... [that] she had this condition at birth, recognized such as she grew up, and took the steps to resolve this issue. And, she
pursued the transition in accordance with The Standards of Care of the World Professional
Association for Transgender Health; I regard her medically and psychologically as female.
*12 [9] We conclude that Dr. Cole's affidavit is sufficient to raise a fact issue regarding Nikki's
sex. According to Dr. Cole, sexuality is a complex phenomenon, particularly when a person's
body ... [does not] fit the mind. The uncontroverted evidence established that Nikki suffers from a
medical condition known as gender dysphoria, discussed at length in Dr. Cole's affidavit, the
symptoms, diagnosis, and treatment of which are matters beyond the ken of most jurors and
jurists. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex.2004). Because the issue is
beyond our common understanding, expert testimony is necessary. Id. at 11920; Haddock v.
Arnspiger, 793 S.W.2d 948, 954 (Tex.1990) (holding, after reviewing the evidence, that an expert
was needed because the nature of the case was beyond the common knowledge of laymen). We
believe that [e]xpert testimony is necessary ... [because] the ... [condition of gender dysphoria and
its treatment are] of such a nature as not to be within the experience of the layman. Roark v. Allen,
633 S.W.2d 804, 809 (Tex.1982). Similar to when the Texas Supreme Court held that the diagnosis of skull fractures is not within the experience of the ordinary layman, see id., we hold that
the condition of gender dysphoriaincluding its symptoms, diagnosis, and treatmentare issues
of fact not within our common knowledge and therefore require expert testimony. See Volkswagen
of Am., Inc. v. Ramirez, 159 S.W.3d 897, 90405 (Tex.2004) (The answer is not within common
knowledge and requires expert testimony.).
The only expert testimony in the summary judgment record is Dr. Cole's affidavit. Heather and
Simona failed to submit any expert testimony in support of their motions. Although their evidence
established that Nikki was born with male sex organs and had male sex organs on the date of her
ceremonial marriage to Thomas, there is no evidence to controvert Dr. Cole's expert testimony
regarding Nikki's medical condition (i.e., gender dysphoria), its treatment, or his expert opinion
that Nikki is medically and psychologically female as a result of her compliance with the
standards of care adopted by the World Professional Association for Transgender Health. Dr.
Cole's expert testimony accounts for Nikki's male sex organs at birth and at the time of her ceremonial marriage to Thomas, which are uncontroverted facts that cannot be disregarded, and
places them in context such that a reasonable juror crediting Dr. Cole's testimony would be able to
find Nikki's sex to be female. Accordingly, we conclude that Nikki raised a genuine issue of material fact regarding her sex. See TEX.R. CIV. P. 166a(c).
Page 22
C. Was Summary Judgment Proper Based on Judicial Estoppel ?
[10][11] The only remaining basis for upholding the trial court's summary judgment is Simona's assertion of judicial estoppel. The doctrine of judicial estoppel precludes a party from
adopting a position inconsistent with one that it maintained successfully in an earlier proceeding.
Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex.2008). In response to Simona's
motion for summary judgment, Nikki argued that Simona had not pled judicial estoppel and
therefore could not assert it for the first time in her motion for summary judgment. See TEX.R.
CIV. P. 94 (listing estoppel as an affirmative defense that must be specifically pled). We agree.
Accordingly, we conclude that the trial court could not have properly granted summary judgment
based on Simona's assertion of judicial estoppel.
D. Is Nikki Entitled to Rendition of Judgment ?
*13 [12] Finally, Nikki requests that we render a judgment in her favor; however, we deny the
request because Nikki's no evidence motion for summary judgment does not support rendition of a
judgment. See TEX.R. CIV. P. 166a(i). In reaching this conclusion, we have considered only the
evidence that Heather and Simona produced in response to Nikki's no evidence motion for summary judgment. See id. As noted above, Nikki's motion was in form and substance a no evidence
motion for summary judgment. See id. It did not reference any evidence, such as Dr. Cole's report,
which was attached only to Nikki's response to Heather and Simona's traditional motions for
summary judgment. Therefore, the issue on appeal is whether Heather and Simona produced some
evidence sufficient to raise a genuine issue of material fact as to Nikki's sex being male. See
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.2013) (No-evidence summary judgments are reviewed under the same legal sufficiency standard as directed verdicts.).
As set forth above, the summary judgment evidence produced by Heather and Simona does not
include any expert testimony. Although we have concluded that the expert testimony offered by
Nikki was sufficient to defeat Heather and Simona's traditional motions for summary judgment
and expressed our belief that expert testimony is necessary regarding the symptoms, diagnosis, and
treatment of gender dysphoria, the issue here is simply whether Heather and Simona produced
some evidence to raise a fact issue about Nikki being male during the marriage. See Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005) (Unless the respondent produces
summary judgment evidence raising a genuine issue of material fact, the court must grant the
motion.). Heather and Simona's evidence showed that Nikki had male sex organs during the
marriage. In our view, this was enough to raise a fact issue about whether Nikki was male during
the marriage because a rational trier of fact could draw a reasonable inference that Nikki was male
Page 23
based on her male sex organs. This inference could be drawn without the assistance of expert
testimony. Accordingly, the evidence was sufficient to defeat Nikki's no evidence motion for
summary judgment. See TEX.R. CIV. P. 166a(i). We conclude that the trial court properly denied
Nikki's motion.
VII. CONCLUSION
For the reasons set forth above, we sustain Nikki's first, fifth, and sixth issues challenging the
trial court's summary judgment in favor of Heather and Simona. Specifically, we sustain Nikki's
first issue because Nikki produced sufficient evidence to raise a genuine issue of material fact with
regard to her sex. We sustain Nikki's fifth issue because we conclude that Littleton is not controlling because it was subsequently overruled by the legislature. We sustain Nikki's sixth issue because summary judgment cannot be upheld based on judicial estoppel. Although Nikki requests
that we render a judgment in her favor based on these issues, we conclude that such relief is inappropriate because (1) a genuine issue of material fact exists with regard to Nikki's sex and (2)
Heather and Simona produced sufficient evidence to overcome Nikki's no evidence motion for
summary judgment. Accordingly, we render the judgment the trial court should have rendered,
which is a judgment denying Nikki, Heather, and Simona's motions for summary judgment. See
Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848.
*14 We do not reach Nikki's second, third, or fourth issues because the issues would not entitle
Nikki to any additional relief beyond reversal of the trial court's summary judgment. See
Tex.R.App. P. 47.1. Finally, because we conclude that there is a genuine issue of material fact
regarding Nikki's sex, we do not reach Nikki's seventh issue challenging the constitutionality of
the Texas ban on same sex marriages. See TEX.R. CIV. P. 166a(c); Tex.R.App. P. 47.1.
We reverse the trial court's judgment and remand the case for further proceedings consistent
with this opinion.
FN1. Specifically, Simona filed an Application for Letters of Administration, Application
for Determination of Heirship, Petition to Declare Marriage Void, Application for Temporary Restraining Order, and Motion to Transfer Venue to District Court.
FN2. The facts stated in this background section are not in dispute. See TEX.R.APP. P.
38.1(g) (In a civil case, the court will accept as true the facts stated unless another party
contradicts them.). We also note that although we refer to Nikki using feminine terms
throughout this opinion, as Nikki and Heather have in their appellate briefs, we do so
Page 24
strictly for ease of reference and to be courteous and respectful in stating the basic reasons
for our decision. See TEX.R.APP. P. 47.1; TEX.CODE OF JUDICIAL CONDUCT,
Cannon 3B(4) (A judge shall be patient, dignified and courteous to litigants ....); see
Littleton v. Prange, 9 S.W.3d 223, 224 (Tex.App.-San Antonio 1999, pet. denied) (referring to appellant in feminine terms even though her sex was disputed and noting that such
references were out of respect for the litigant and have no legal implications).
FN3. The evidence attached to Heather's motion for summary judgment included the following: (1) Nikki's original birth certificate stating that Nikki was born male on June 4,
1975 in Carmel, California and named Justin Graham Purdue; (2) an application for a
name change completed by Justin Graham Purdue, identifying the applicant's sex as M
or male and stating as the cause for the name change: I, Justin Purdue, am a woman with
male anatomy, working toward a sex change. I have been living and working as a woman
for over one year and seek to make my new name legal and permanent; (3) an order of the
245th District Court of Harris County granting the name change as of February 2, 1996; (4)
an application for amendment of birth certificate to reflect the court ordered change of
name completed by Nikki and dated April 27, 1996; and (5) Nikki's answers to requests for
admissions in the instant suit, admitting the following: (a) Nikki was born Justin Graham
Purdue; (b) the birth certificate of Justin Graham Purdue lists his sex as male; (c) Justin
Graham Purdue was born with a penis; (d) Justin Graham Purdue was born with testes; (e)
Justin Graham Purdue was born without a vagina; (f) Justin Graham Purdue was born
without a uterus; (g) Nikki had a penis on the day of the issuance of the marriage license for
Nikki and Thomas; (h) Nikki had testes on the day of the issuance of the marriage license
for Nikki and Thomas; and (i) Nikki had genital reassignment surgery in October of 2008.
FN4. We note that on appeal, Nikki asserts that the motion was incorrectly styled as a no
evidence motion [because] ... in substance the motion was unmistakably a traditional
motion. We also note that there was no evidence attached to the motion or referenced
therein. We disagree with Nikki's assertion that the motion was a traditional motion. See
TEX.R. CIV. P. 166a(c). In form and substance, the motion was a no evidence motion. See
TEX.R. CIV. P. 166a(i).
FN5. The following exhibits were attached to Heather's response: (1) affidavit of Edward
C. Burwell; (2) Nikki's responses to requests for admissions; (3) certificate of live birth of
Justin Graham Purdue; (3) application for name change for Justin Graham Purdue; (4)
order granting the application for name change; (5) Nikki's application for amendment of
Page 25
birth record to reflect the name change; (6) Nikki's memorandum of points and authorities
in support of her petition for a change of gender; (7) Nikki's amended birth certificate; and
(8) a transcript of the California court's proceedings regarding Nikki's request for a legal
change of gender.
FN6. The evidence attached to Simona's response was the same evidence attached to her
traditional motion for summary judgment set forth in footnote 7.
FN7. The evidence attached to Simona's motion for summary judgment included the following: (1) certificate of live birth for Justin Graham Purdue dated June 18, 1975; (2)
verified pleading of Justin Graham Purdue in Cause No. 9607867 in the 245th District
Court of Harris County, Texas; (3) order granting name change in Cause No. 9607867 in
the 245th District Court of Harris County, Texas; (4) amended certificate of live birth of
Justin Graham Purdue dated August 21, 1996; (5) Nikki's memorandum of points and
authorities in support of petition for name change; (6) transcript of hearing on Nikki's petition for change of gender dated July 20, 2010; (7) Nikki's certificate of live birth; (8)
marriage license for Thomas and Nikki; (8) Houston Independent School District records
for Justin Graham Purdue; (9) CypressFairbanks Independent School District records for
Justin Graham Purdue; (10) Aldine Independent School District records for Justin Graham
Purdue; (11) medical records of Justin Graham Purdue aka Nikki Purdue aka Nikki
Araguz aka Nikki Mata from Gulf Coast Medical Center; (12) medical records of Justin
Graham Purdue aka Nikki Purdue aka Nikki Araguz aka Nikki Mata from Dr. Juan Garza,
Dr. Esther Perez, Houston Area Community Services; (13) medical records of Justin
Graham Purdue aka Nikki Purdue aka Nikki Araguz aka Nikki Mata from Dr. Marci
Bowers; (14) medical records of Justin Graham Purdue aka Nikki Purdue aka Nikki
Araguz aka Nikki Mata from Mount Saint Rafael Hospital; (15) Nikki's responses to
Simona's requests for admissions; (16) Nikki's responses to Simona's written interrogatories; (17) excerpts of Nikki's deposition in Cause No. 44,575 in the 329th Judicial District
Court of Wharton County, Texas; (18) excerpts of Nikki's deposition in Cause No. 42,122
in the 329th Judicial District Court of Wharton County, Texas; (19) excerpts of Thomas's
deposition in Cause No. 42,122 in the 329th Judicial District Court of Wharton County,
Texas; and (20) Thomas's certificate of live birth.
FN8. The evidence attached to Nikki's response included the following: (1) affidavit of Jim
Paulsen; (2) affidavit of Collier Cole, Ph.D.; (3) Nikki's birth certificate; (4) Texas Family
Code Section 2.005; (5) Nikki's affidavit; (6) Simona's exhibit F; (7) Nikki's jail records
Page 26
stating that she is F or female; (8) Thomas and Nikki's application for a marriage license;
(9) 00112 of Houston Community Service medical records; (10) excerpts from the California health and safety code; (11) Steve Chelotti's affidavit; (12) marriage license for
Thomas and Nikki; (13) Nikki's Texas driver's license; (14) marriage compact of Nikki and
Thomas; (15) California court order for change in Nikki's birth certificate; and (16) Dr.
Bower's medical report.
FN9. In connection with this assertion, Nikki relies on section 103430(d) of the California
Health and Safety Code, which states in relevant part that [n]o reference shall be made in
the new birth certificate [for a registrant whose sex has been surgically altered] ... that it is
not the original birth certificate of the registrant. CAL. HEALH & SAFETY CODE
103430(d).
FN10. Nikki relies on the affidavit of Collier Cole, Ph.D., a Texas licensed clinical psychologist and full professor in the University of Texas Medical Branch, Galveston's Department of Psychiatry and Behavioral Sciences, who states that because Nikki pursued
this transition in accordance with the standards of care of the World Professional Association for Transgender Health, [he] regard[s] her medically and psychologically as female.
He also states that [s]urgery per se is not the definitive point that makes someone female.
According to Dr. Cole, it is completion of real life experiences which documents such she
had this condition at birth, recognized such as she grew up, and took the steps to resolve
this issue.
FN11. Nikki relies on the medical records prepared by Marci Bowers, M.D. in connection
with her genital reassignment surgery or neocolporrhaphy. The records indicate a
preoperative and postoperative diagnosis of gender dysphoria, male to female transexualism. The records describe Nikki as a 33 year old, phenotypic female, who has followed
the WPATH Standards of Care. Based on a physical examination, Dr. Bowers described
Nikki as a [p]leasant thin woman in no apparent distress.
FN12. Heather's brief states that [t]he determination of ... [Nikki's] gender is the only
issue in this case. Likewise, Simona's brief states that the [t]he validity of the marriage
before this Court revolves around a central issue: Is Nikki Araguz male?
FN13. Simona made several objections to the affidavit of Dr. Cole. On March 24, 2011, the
trial court signed an order overruling all the objections. Simona has not appealed that
Page 27
ruling. However, in her appellate brief, she contends that this Court should exclude the
affidavit of Dr. Cole from consideration because (1) the affidavit fails to state that the
facts contained herein are true and (2) the documents referred to in the affidavit were not
attached. In response to the first contention, Nikki requested and obtained an order from
the trial court stating that Nikki out of an abundance of caution, has revised the timely
filed affidavit of Collier Cole, Ph.D. to state that the facts and opinions stated in this affidavit are within my personal knowledge, are true and correct ... at the onset of his affidavit. Attached to the order is Dr. Cole's affidavit stating that the facts are true and
correct. We also note that both affidavits (the original and revised) stated that the facts and
opinions were within Dr. Cole's personal knowledge and both were subscribed to and
sworn before a notary public. Accordingly, we will not exclude the affidavits from consideration on this basis. See Fed. Fin. Co. v. Delgado, 1 S.W.3d 181, 184
(Tex.App.-Corpus Christi 1999, no pet.) ([W]here the affidavit does not specifically recite
that the facts set forth there are true, but does set out that it is based on personal knowledge
and is subscribed to and sworn before a notary public, it is not defective if, when considered in its entirety, its obvious effect is that the affiant is representing that the facts stated
therein are true and correct.). In response to the second contention, we note that the revised affidavit by Dr. Cole, which the trial court permitted, had the documents referred to
in the affidavit attached to the affidavit. See TEX.R. CIV. P. 166a(f) (Sworn or certified
copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or
served therewith.). Accordingly, we will not exclude the affidavit from consideration in
this appeal.
Tex.App.Corpus Christi,2014.
In re Estate of Araguz
END OF DOCUMENT
TAB B
Littleton v. Prange, 9 S.W.3d 223
(Tex. App.San Antonio 1999, pet. denied)
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Court of Appeals of Texas,

San Antonio.
Christie Lee LITTLETON, Individually and as Next Heir of Jonathon Mark Littleton, Appellant,
v.
Dr. Mark PRANGE, Appellee.
No. 049900010CV.
Oct. 27, 1999.
Transsexual, who was born a man but underwent sex reassignment surgery, brought medical
malpractice action under Wrongful Death and Survival Statute, in her capacity as surviving spouse
of a male patient. The 288th Judicial District Court, Bexar County, Frank Montalvo, J., entered
summary judgment for doctor. Transsexual appealed. The Court of Appeals, Hardberger, C.J.,
held as a matter of first impression that ceremonial marriage between a man and a transsexual born
as a man, but surgically and chemically altered to have the physical characteristics of a woman,
was not valid, and thus, transsexual lacked standing to bring claim as man's surviving spouse under
wrongful death and survival statutes.
Affirmed.
Angelini, J., filed concurring opinion.
Lopez, J., filed dissenting opinion.
West Headnotes
[1] Husband and Wife 205
209(4)
205 Husband and Wife

205VI Actions
205k206 Rights of Action by Husband or Wife or Both
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205k209 For Torts
205k209(4) k. Personal injuries to husband. Most Cited Cases
Marriage 253
54(1)
253 Marriage
253k54 Effect of Informal or Invalid Marriage or Union
253k54(1) k. In general. Most Cited Cases
(Formerly 253k54)
Ceremonial marriage between a man and a transsexual born as a man, but surgically and
chemically altered to have the physical characteristics of a woman, was not valid, and thus,
transsexual lacked standing as man's surviving spouse to bring claim under wrongful death and
survival statutes, even though transsexual and man were married for seven years, and she officially
changed her birth certificate to reflect her altered status as a woman. V.T.C.A., Family Code
2.001(b); V.T.C.A., Health & Safety Code 191.028; V.T.C.A., Civil Practice & Remedies Code
71.004, 71.021; KRS 402.020(1)(d).
[2] Appeal and Error 30
863
30 Appeal and Error

30XVI Review
30XVI(A) Scope, Standards, and Extent, in General
30k862 Extent of Review Dependent on Nature of Decision Appealed from
30k863 k. In general. Most Cited Cases
In an appeal from a summary judgment, the appellate court 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.
[3] Judgment 228
185(2)
228 Judgment
228k182 Motion or Other Application
228k185 Evidence in General
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228k185(2) k. Presumptions and burden of proof. Most Cited Cases
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; any doubt is resolved in the nonmovant's favor.
[4] Health 198H
397
198H Health
198HII Public Health
198Hk395 Records, Reports, and Disclosure
198Hk397 k. Birth certificates. Most Cited Cases
(Formerly 199k34 Health and Environment)
Term inaccurate in statute permitting amendment to birth certificate if proved by satisfactory
evidence to be inaccurate means inaccurate as of the time the certificate was recorded, that is, at the
time of birth. V.T.C.A., Health & Safety Code 191.028.
*223 Dale Hicks, Jon A. Hyde, Maloney & Maloney, P.C., San Antonio, for Appellant.
Thomas F. Nye, Linda C. Breck, Brin & Brin, P.C., Corpus Christi, for Appellee.
Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LPEZ, Justice, KAREN ANGELINI,
Justice.
OPINION
Opinion by: 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 *224 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
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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.
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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, *225 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.
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THE LEGAL ISSUE
[1] 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) (BanksBaldwin 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, 74 Haw. 530, 852 P.2d 44 (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, 291 Minn. 310, 191 N.W.2d 185 (1971),
aff'd, *226409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972); Singer v. Hara, 11 Wash.App. 247,
522 P.2d 1187 (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. 104109, 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
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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 DisOrientation: Transgendered People and SameSex 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, 1970 WL 29661 (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 3536. 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 3435. She said she was ready, willing, and able to consummate the marriage. Id.
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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.*227 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 4849. 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
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which one of the partners was transsexual appeared in a United States court. This was the case of
Anonymous v. Anonymous, 67 Misc.2d 982, 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*228 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 20506. He
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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 21011.
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
82930. 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
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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 *229 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 DisOrientation: Transgendered People and
SameSex 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, 277 Or. 371, 560 P.2d 1070
(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, 560 P.2d 1070. 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 Ladrach, 513 N.E.2d at 832
(noting fifteen states have permitted a post-operative change of sex designation on birth records).
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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.
[2][3] 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, 54849 (Tex.1985);
*230Ray 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 54859. 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.
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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*231 to make herself a female, including a
Page 14
9 S.W.3d 223
(Cite as: 9 S.W.3d 223)
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.
[4] 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 191.028 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. 191.028 (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
Page 15
9 S.W.3d 223
(Cite as: 9 S.W.3d 223)
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.
ANGELINI, J., concurring opinion.
LPEZ, J., dissenting 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 *232
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 4849.
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
Page 16
9 S.W.3d 223
(Cite as: 9 S.W.3d 223)
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.
ALMA L. LPEZ, 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, 54849 (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*233 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.
Page 17
9 S.W.3d 223
(Cite as: 9 S.W.3d 223)
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. 191.028
(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
Page 18
9 S.W.3d 223
(Cite as: 9 S.W.3d 223)
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?
*234 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.
Tex.App.San Antonio,1999.
Littleton v. Prange
9 S.W.3d 223
END OF DOCUMENT
TAB C
TEX. FAM. CODE 2.005
V.T.C.A., Family Code 2.005
Page 1
Effective: September 1, 2009

Vernon's Texas Statutes and Codes Annotated Currentness
Family Code (Refs & Annos)
Title 1. The Marriage Relationship (Refs & Annos)
Subtitle A. Marriage
Chapter 2. The Marriage Relationship (Refs & Annos)
Subchapter A. Application for Marriage License
2.005. Proof of Identity and Age
(a) The county clerk shall require proof of the identity and age of each applicant.
(b) The proof must be established by:
(1) a driver's license or identification card issued by this state, another state, or a Canadian
province that is current or has expired not more than two years preceding the date the identification is submitted to the county clerk in connection with an application for a license;
(2) a United States passport;
(3) a current passport issued by a foreign country or a consular document issued by a state or
national government;
(4) an unexpired Certificate of United States Citizenship, Certificate of Naturalization, United
States Citizen Identification Card, Permanent Resident Card, Temporary Resident Card, Employment Authorization Card, or other document issued by the federal Department of Homeland
Security or the United States Department of State including an identification photograph;
(5) an unexpired military identification card for active duty, reserve, or retired personnel with an
identification photograph;
Page 2
(6) an original or certified copy of a birth certificate issued by a bureau of vital statistics for a
state or a foreign government;
(7) an original or certified copy of a Consular Report of Birth Abroad or Certificate of Birth
Abroad issued by the United States Department of State;
(8) an original or certified copy of a court order relating to the applicant's name change or sex
change;
(9) school records from a secondary school or institution of higher education;
(10) an insurance policy continuously valid for the two years preceding the date of the application for a license;
(11) a motor vehicle certificate of title;
(12) military records, including documentation of release or discharge from active duty or a draft
record;
(13) an unexpired military dependent identification card;
(14) an original or certified copy of the applicant's marriage license or divorce decree;
(15) a voter registration certificate;
(16) a pilot's license issued by the Federal Aviation Administration or another authorized agency
of the United States;
(17) a license to carry a concealed handgun under Subchapter H, Chapter 411, Government
Code;
(18) a temporary driving permit or a temporary identification card issued by the Department of
Public Safety; or
(19) an offender identification card issued by the Texas Department of Criminal Justice.
Page 3
(c) A person commits an offense if the person knowingly provides false, fraudulent, or otherwise
inaccurate proof of an applicant's identity or age under this section. An offense under this subsection is a Class A misdemeanor.
CREDIT(S)
Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg.,
ch. 268, 4.06, eff. Sept. 1, 2005; Acts 2009, 81st Leg., ch. 978, 2, eff. Sept. 1, 2009.
HISTORICAL AND STATUTORY NOTES
2006 Main Volume
Acts 2005, 79th Leg., ch. 268 added subsec. (c).
Section 4.20 of Acts 2005, 79th Leg., ch. 268 provides:
The changes in law made by this article to Sections 2.004, 2.005, 2.007, 2.009, and 2.102, Family
Code, apply only to an application for a marriage license filed on or after the effective date [Sept.
1, 2005] of this Act. An application filed before the effective date of this Act is governed by the
law in effect on the date the application was filed, and the former law is continued in effect for that
purpose.
2014 Electronic Pocket Part Update
2009 Legislation
Acts 2009, 81st Leg., ch. 978 rewrote subsec. (b), which prior thereto read:
The proof must be established by a certified copy of the applicant's birth certificate or by some
certificate, license, or document issued by this state or another state, the United States, or a foreign
government.
Section 12(a) of Acts 2009, 81st Leg., ch. 978 provides:
Sections 2.002, 2.005, 2.006, 2.009, and 2.102, Family Code, as amended by this Act, apply only
Page 4
to an application for a marriage license submitted to a county clerk on or after the effective date
[Sept. 1, 2009] of this Act. An application for a marriage license submitted before the effective
date of this Act is governed by the law in effect immediately before that date, and the former law is
continued in effect for that purpose.
2006 Main Volume
Prior Laws:
P.D. 4667.
Rev.Civ.St.1879, art. 2841.
Acts 1911, 32nd Leg., p. 63.
Acts 1959, 56th Leg., 2nd C.S., p. 113, ch. 20, 1.
Acts 1965, 59th Leg., p. 1151, ch. 543, 1.
Vernon's Ann.Civ.St. art. 4605, subsec. (b).
Acts 1969, 61st Leg., p. 2707, ch. 888, 1.
V.T.C.A., Family Code 1.04.
CROSS REFERENCES
Marriage without formalities, proof of identity and age, see V.T.C.A., Family Code 2.403.
TEXAS ANNOTATED CODE SERIES REFERENCES
Page 5
Annulment of marriage of person under age 18, Sampson & Tindall's Texas Family Code,
Family 6.102 et seq.
Bigamy, Sampson & Tindall's Texas Family Code, TX FCA Penal 25.01.
Grounds for annulment, Sampson & Tindall's Texas Family Code, Family 6.102 et seq.
LIBRARY REFERENCES
2006 Main Volume
25.
Marriage
Westlaw Topic No. 253.
C.J.S. Marriage 27.
RESEARCH REFERENCES
2014 Electronic Pocket Part Update
Encyclopedias
TX Jur. 3d Family Law 16, Proof of Identity and Age.
TX Jur. 3d Family Law 18, Absent Applicant.
TX Jur. 3d Family Law 26, Parental Consent.
TX Jur. 3d Family Law 56, Generally; Proof of Identity and Age.
Forms
Texas Forms Legal and Business 33:3, Cohabitants Contemplating Marriage.
Texas Forms Legal and Business 33:9, Checklist--Information to Include on Declaration and
Registration of Informal Marriage.
Page 6
Texas Forms Legal and Business 33:29, Affidavit of Absent Applicant on Application for
Marriage License--Harris County.
16 West's Texas Forms 1:1, Legal Summary.
16 West's Texas Forms 1:3, Affidavit of Absent Applicant.
Treatises and Practice Aids
Texas Family Law Service 39:13, Proof of Age and Identity.
Koons, 33 Tex. Prac. Series 1:4, License Requirements--Age.
Koons, 33 Tex. Prac. Series App. A, Family Code.
Brooks, 35 Tex. Prac. Series 10.35, Recordable Instruments--Marriage Licenses.
NOTES OF DECISIONS
In general 1
Age 2
Sex change 3
1. In general
A county clerk had no authority to issue marriage license where male was under age of 16 or female was under age of 14 even though provisions of Vernon's Ann.Civ.St. art. 4605 (repealed) had
been complied with. Op.Atty.Gen.1942, No. 0-4860.
A county clerk is neither obligated nor permitted to accept a court ordered waiver of the furnishing
of the information concerning age, identification of the applicant or identification of the parent
required on the marriage license application. Op.Atty.Gen.1975, No. H-503.
2. Age
Page 7
Under Vernon's Ann.Civ.St. art. 4605 (repealed), a false affidavit executed by husband attesting to
age of parties did not render marriage voidable or invalid in any respect. Williams v. White
(Civ.App. 1953) 263 S.W.2d 666, ref. n.r.e..
3. Sex change
Texas law recognizes that an individual who has had a sex change is eligible to marry a person of
the opposite sex. In re Estate of Araguz (App. 13 Dist. 2014) 2014 WL 576085, petition for review
17.5(1)
filed. Marriage
V. T. C. A., Family Code 2.005, TX FAMILY 2.005
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
TAB D
Affidavit of Dr. Collier Cole (7CR1854-1858)
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FRYE AND ASSOCIATES
4D97632969
PAEg1 02/D6
-
NM MEI
IN THE ESTATE O
1:11 TUE DISTRICT COLTIer.
THOMAS TIOITINO ARAGU4 ff1
3297" JUDICIAL DISTICACr
MECCAS=
WHARTON' COUNTY, 1C.leXAS
Dr. Collier Cole appeased in person before we today end stated wader oath:
'My naccLe is Collier Cole. tlan abeam the age of eighteen years, and X pcs.sess the
qualifloadom rad tape:rim= awl r'm fully competent so make this affidavit I affirm 1. have not
been convicted tff a crime of moral tuptcada. The feats and opinions stated in thi saadErVit are
with* my pummel knowledge, we too
and correct, ere hated on rny years of exponnimota,
educadon, and training. some of Nikki Aragme medical records ., (provided by ooter=oc)i guld ttio
Otago Tmituicut Referencca I have =ached to this affidavit, / swear and affirm
til
documeno listed ec the Gender - Treatment Renrenoes tint used in arriving at

my .02fritrAll arc
exact dupEicaras of the oxisbal arEirges, Iaffinn the attanhed curriculum vitae is a .trUe3 azid
correct copy Ofeenze. affirm the a1tick(2) downloaded ftom Ito intecnet are =eat aurlicate
5 of
the original copies albs WPetb. Standards of Cato and I affirm that Pra the enstodagila Of all of
these records kept in my office as pert of the normal coma of businem Those =co, ita5 arer
(fender TreatinentRefcannee5
Emory, L, Viilfmn,D., Cole, C., Amparo,
nrellufinys W. ,icutatonno
' VprlatteX* cite

Pont= vat OceArsM3Vb.Mia. Aradvits ceScoausl Behavior, Vol, 20, No.
4, 1991,
Corpu. CaltSUIn
ham,L, Karaelc; D., Meyer, W., and Wylie, IC_
Reroincorodelica fca ReAsten alba DSM Dinirk0SiS eautider him* Disoixietz ofAckabA, Irstum...0 32181
kumularriaosomthelsm. VI)). 12, No.2, April - hoc 20 lO.
HirytkajaegnIalsmaticcal Ganciar Dyspboria Amoniationtrbb stanthlrds acme iirGerider RicuatY
vacietiera, SixthArtaxicia, PolTnaw2GOI. (Found mon:Imhoff/
WoMPeAssinrud AssezIefion thrTr-olvaErthine
Flailth -121aithrth
ktigvcr,E0 Zhou,J. Pool, C Wow, M, Ciemen,L and Sween,D. )616;0Rn:fele

Traassexurd, 120311P_
ree
.
NeerceNernbas aumbieNuolous. The Jolene &ClInkiI Endocrinoksgy and MOTateibl VQ1,

2000.
Theo, Hoff* M, ammo, 4, sad Sweeb, D. A Seclaiirmenneu tie Ifinau Brain and its RelafioriEri fr
3
Transsexcallty. Nature, VoL 374 November 1995.
Cteriodern Vftat of Collier Colo,
A truo and correct copy of each of the (leader Treatment ReiexerKlun naeli
tp form_ ItAY
opir4fe1 snd xny Curricobue Wen are attnelcod to this efftclaoit.
Aragunieole's Affidavit
90/to 3040d
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BANA
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PAGE 03/05
My namo is Collier M. Coln, Phi/ For over 30 mire I have been a

licensed e/ininsi
psychologist the state of Taxas. I'm also at Clinical Pall Professor in the IDepartment of
Psycbiany and Behavimal Sciences at the linivorshy of Tates Medical Brae* Calvasteo.
I reach medical residents end medical students tare on topica rdated to psychiatry and lam=
sexuality, My area. of specialtva in the diagnosis and treatment of sexual disorder% This
includes the near:mut of individuaWcouples with seauW ;emblems, nesting individuals who are
vietnns laud perpetaranra of somal meat, mai treating individuals with gender identity
(*editions. I am a marker af anumber of Favirsalanal organizations, including lb;
Awaken
Maoolation of Sex Mumma, Counselom and Therapists, the American Paychnlogical
Associa
" tion, the Texas Psychological Association, and the World Proftwionat
Association for
Tranagander Haakk WATT& (foamolly known as the Kerry
Benjamin International Gender
Dysphoria Association). I have been snitcher *flit latter organization *we
ha Inception in
1050, WPATa has established internationally accepted Standards of Care (S DC)
for the
treatment of gander identity disorders, this docuptence necessarily includes the
American
Madical Association. 'Mc $tandards of Care have been updated and revised ea new sciontiEc
information becomes avnliable. Over the years I have been involvod in towing clients,
educating duidenta, and conducting clinical research on those topics- MILLI
deactiotIon of my
Fecfessional ;octividea can be found in the Outrivelsoi Vitae attached.
Owider DysTfrhoria (krimm tadaY as Gender TrInntity Disorder) is a condition wbatality
an
incihrkhialhatt longstanding and penist:art feelings ofbeing a member ofthe opposite acr. Such
Feelings can often oat be 'cowed back ta early childhood. Indbed an individual
may pereave
oneself as being a buy or girl deapife other indiardnu Co the contrary (e.g., sexual enemy, sex of
rearing,) Ongoing research into rhe etiology of this aspect of scomality today lamely is roeuthio ne
biological factors (Frazier at 2 LI, 2010) Indeed, scientific enulies emerging ovar the peat several
decades =Lew that gender taphoria may be related to a sex ditkrence in the human brain prier
to Ones birth (Emory, ryc 4 1991; Zbou at ni,1003;
ocr et al. 200(9. This
=Ms Wheal 6Itt
individua/'is born hie or her gendor idereiry rnay already be established, iniveorh.re of
ChrOMOsoiZt4 or anatomy. Aftcrall sszKualicy per se
Isa complex phenomenon which involvce

=bet ofundetiying focus. Dacca Include ehromosomes, honnones, aulla anatomy, gender
Wand% sexual axiomatical, and sexual expression. A noanher of then ftletors should be taken into
Amur/Coles Affidavit
5e/E8
29Vd
S31VZOOGSV aiNv Ai,ba
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FAGE B4/0S
amount when ideating someone as male or finnalt, Instead, typically one's anatomy at birth resells
in the wigs:meat aflame although Oda is sometimes done incorrectly,
With respect to gender Oration& it le the feeler agendas. icletatity which it; tle prirasty
ibex By definition gender idcraity is that personal private sense of beiag zrialc or female, Of
nate, there alga exist certain ooaditions *led* ittdIvldnals may be born with chromosomal
atiorrudies (such es XXY) or anatomical anomalies (such as inters=
COLtiiitioriA in such cases h
IS Pecammaided today that physicians not intervene eta an indivielusl is of age and has accepted
eteerly his or her geruiar identity. Then, as in tbt eisso of gandor dysphotia, surgical and niedieal
praceduzas cao be brought to beer, to line up that parson's body to &the naiad and thereby aranplate
6=0= and resolve the underlying issue.
Many individuals with gender dysphorla will recognize allai thaniseIves in early II& and
=eve fotwerd with pursuing treatment initervantien on thek otm Others will go in professionals
viito can aufst them in this regard. With increased awareness of tbis condition mow* the
Christine Jorgenson case in 1952 many conters around the wenn" began cleveloping programs.
linwayer, it was not tmtil I 980 that the limy Benjamin International Gender riyaphozia
Association was created and established tha fuer Stsndards af Owe, these we new in the aixth
edition and ean be fOund on the web site of the World Pmfasslional Association for Trattsgender
Eicalth CaTagazg), AS ill other areas of medicine once a condition becomes more understood
protocols or standards ate developed to auist people seeking hat for a particular condition as
well fla to aid treating wort-Batangas Working with them In this case tho ingf or technique used
to oonthm a diagonals of gaD4er elysphorie, is the "real Lire experience." Euentially this is a period
oftime, a minimum of one year, where the individual begins living in the desired gender role, h is
doing this petiod that on hidividual will undergo hormone therapy to become! =le male or
female in apposoanoe will begin Ittnin0 and 4,vorldng in that gender win o will deel with family and
reletionships. and then move towardS making legal changes hi tenon of oriels name and gender
designation 012 routine idea-tilt:aim through the courts. Alia a suceessful trandtion an individual
may pusne gender reassignmeut surgery In rsdesEan the genitals ih the desired &alien,
nowcver, gender dysphorla fa one *fanny condi-dans thEC are. not covered try health
insurance so individuals must pay for this aspeot of owe therneelves- Accordingly, many
Araguziroles Affidavit
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05/24/2011 13:38
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FRYE AND ASSOCIATES
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indniduals cannot Word surgery and so will continue to live without such_ It should be acted that
Ibis door not make them shy lase gender &Aphelia than someone who dues complete surgery. h is
completion of the real life esperierkoes itTelf which marks the Point of change. "'Az ter wards
individnaL either onc lato hes had surgery or one hasnet, ean Foram legal step to change the birth
certilleate in the cleaired direction, Overall Ibis method of treatment
The Standar& of Care),
je reoeFizcd end arcePeaci bY cOntalnperary and medical males
the endocrine Society of the U.S).
Trams Ilepartmeat
Wifh =Peento N5dd Megaz (1).0B:06-4-75) I ma provided a number of medleal records te

mm bcfort Iitnerviewed her. There records dated heck to the early 1 990r a and revealed ninth
about her transition mom CA listing (1'th:se doom:tants can be tburtel In the Attocirrnect with this
strunient) They sweated tat Ma. Aram= had heen followiagthe II:cement:ion
' 04 steps arybo rcal
Ilft etiltrieace, inoluding living as female. tmtinetag gentiitng hormomthttpy , and worioncing
aatiOng relationshipwith
' fernily end others, In addition to her records, I had a face-to-face
interview with her it, early Januaxy. She Was born in. Carmel, California, and ratsod primarily in
Houston, Texas, Prom ea early age she resells longstanding feelings of being female, an
obancvetion adett =ea as noted above. Indeed, she reports we.,exing tamale clothes essentially ell
of her Ilfe. She often was pemivod by others lari foosac 'until they were corrected. This would
suggegt a strong female sexual Ideality,
At age 18 her PhYffieliVZ slarted her en faninng bornme therapy, (No evidence of
chromosome testing wits reported.) Prom thee she continued living as *male in the real world. Htz
keity was supporeVe other gender clysOorie, Abe bad lxnh Eiendly and intimate rolatIonshina
over the years, and sho was suocessfni in various wori endeavors, where she alums presented
heizcifas fercele. At age 2t ahe successfally changed hes name legally in the Houston courts. tkTone
feta rem* reviewed Indictee any psychiatric problems related to her gender dysphozia oc lMg
as a itmale. Darcy professimml opinion embed suecesafelly oompieecd to "real life carper-fence in.
tho lea 1990's 89 desraibed in the Standards of Cara. She then began saving her money to prat=
$ex treasigament surgery which unts completed in. Oetabor 2003. In =mazy, Ms. Ants=
succeasitilly wexpieted the canntit mcdically-accepted stepa for treating the condition of gender
dyspharia ELI described above. She essentially had 1Velk Jiving as a itmale frora an early age.
Then, ahre began seeing a physician te initiate her feu:dab-1g bonnet* therapy which renekts
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4097622958
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ogoing at this time Also, ate successfully dealt with 5=4 members and otheLS itt hat lea and also
wodcod n tho nal world as a founds. Eventually she was fortunnao to coviete sox tessiiicoment
ntrgety. Howeem as noted *on many Etch indivIdulls do not corneae slavery far finsnetsi
-
moons. Surgery par so is not tile definitivo point that mat= sofklbuttauaI. Bzuhtr, it is completion
of the real lift expositors which dominants such 3130 hod this condition at birth, recopizad soda
as she gieW Up, ond took the steps to =solve
this Imo. And, slaa pursued this tensition iu
anemia-1mi with The Readouts orCare c4.the Woii4 Ptrofessional Association for Transcend=
Health; I mord her medically md, payehologrically as female,"
fall zy
STONED on
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Delgado V Araguz: Response To Petition For Review Filed On Behalf of Nikki Araguz

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Delgado V Araguz: Response To Petition For Review Filed On Behalf of Nikki Araguz

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FILED

RESPONSE TO PETITION FOR REVIEW

Alene Ross Levy

Phyllis Randolph Frye

There is no conflict among the courts of appeals. ...........................................2

There is no need for statutory construction. ....................................................5

Nikki presented uncontroverted expert proof that she had a sex

The court of appeals did not retroactively apply the 2009

TEX. R. APP. P. 9.4(i) ................................................................................................17

STATEMENT OF THE CASE

After firefighter Thomas Araguz died in the line of

Judge Randy Clapp, 329th District Court, Wharton

Trial Court Disposition:

Petitioners filed motions for summary judgment, and

Nikki appealed to the Thirteenth Court of Appeals.

In a unanimous opinion authored by Chief Justice

The decision below does not conflict with Littleton v. Prange,

The 2009 amendment to Family Code section 2.005 applies here,

The court of appeals did not, as petitioners contend, retroactively

retroactively apply the 2009 amendment to validate a void marriage performed

There is no conflict among the courts of appeals.

not determined guidelines that should govern the recognition of marriages

There is no need for statutory construction.

Texass laws prohibiting same-sex marriage, just as it is required to do by the Code

accepted. Dictionaries define the term identity as meaning the condition of

Dictionary.com, Identity, http://dictionary.reference.com/browse/identity?s=t. All websites

Merriam-Webster.com, Identity, http://www.merriam-webster.com/dictionary/identity.

TheFreeDictionary.com, Identity, http://www.thefreedictionary.com/identity.

Jim Vertuno, GOP Lawmakers Try to Reverse Law on Transgendered, WASH.

Nikki presented uncontroverted expert proof that she had a sex

birth. This is possible, Dr. Collier explained, because sexuality per se is a

will place opposite-sex marriages and same-sex marriages on an equal footing,

there is no constitutional [same-sex marriage] right. Ed Whelan, Kennedys Stealth Victory,

/s/ Kent Rutter

Phyllis Randolph Frye

/s/ Kent Rutter

Counsel for Appellee National Union

Counsel for Appellee Heather

/s/ Kent Rutter

In re Estate of Araguz, 2014 WL 576085 (Tex. App.Corpus Christi

Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999,

TEX. FAM. CODE 2.005

Affidavit of Dr. Collier Cole (7CR1855-1858)

Only the Westlaw citation is currently available.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.