SB 723 by Sen. Tommy Williams (R-The Woodlands) would amend the list of acceptable identifying documents used to apply for a marriage license to exclude a court ordered "sex change".
The current list of acceptable documents was created in 2009 by HB 3666 by Lois Kolkhorst (R-Brenham). Rep. Kolkhorst also introduced the amendment which added court ordered "sex change" to the list. The amendment passed on a voice vote (meaning it was so uncontroversial that no-one wanted to bother counting votes) and the bill was placed on the Local and Consent Calendar, which is reserved for noncontroversial bills. Debate on bills on the Local and Consent Calendar is restricted to 10 minutes. This means that any House member who wanted to kill the bill just has to talk about it for 10 minutes and 1 sec. Considering how easy it would have been for someone to prevent this from becoming law it would have seemed to have been relatively non-controversial.
Apparently not. Williams, who voted for HB 3666 when it came through the Senate last session, wants to take out this provision. It seems that the case of Delgado v. Araguz, currently winding it's way through the courts in Wharton county got his attention. Nikki Araguz is the widow of firefighter Capt. Thomas Araguz, killed in the line of duty. Capt. Araguz's ex-wife, Heather Delgato, is suing to have his marriage to Mrs. Araguz declared void so that Delgato can receive his widows benefits. Delgato's case is based on Mrs. Araguz's original, California, birth certificate identifying her as "male", and the 1999 Texas court precedent of Littleton v. Prange. (Mrs. Araguz's birth certificate was corrected and now identifies her as female.)
Littleton v. Prange involved a trans woman, Christie Lee Littleton, who attempted to file a medical malpractice suite after the death of her husband. Mrs. Littleton was told she could not because she was “genetically male”, and her marriage was therefore invalid. The Texas Fourth Court of Appeals upheld that ruling, but it had to strain really hard to do so. In his opinion, Justice Hardberger flatly stated that he could find no case law or statute in Texas, or for that matter anywhere in the U.S., on which to base the ruling. Instead he relied on English Case Law: Corbett v. Corbett (1970).
Since the ruling was in the fourth court of appeals it only applies as binding precedent in the fourth court's district (the San Antonio area), but other Texas courts can, and have, used Littleton v. Prange to guide them in their decisions.
Of course all that was before HB 3666. Mrs Araguz's lawyers are arguing that if the law allows a court ordered "change of sex" to be used as an identifying document for obtaining a marriage certificate, then clearly two people (so long as one is a man and one is a woman (of course)) can be legally married regardless of what their original birth certificates said. Since the law trumps case precedence Littleton v. Prange would seem to no longer apply. The case is yet to be decided.
Clearly, this lapse into decency chafes the Honorable Sen. Williams. One has to wonder though if he's considered the corollary to outlawing marriage between a man and a woman if one of them happens to have been assigned a different gender at birth, which is it legalizes same-sex marriage so long as one of the partners happened to have been assigned a different gender at birth.