Friday, April 15, 2011

Legislative Intent and SB 723

Yesterday I wrote that SB 723 had been put on the Senate Calendar for Monday. The bill would remove a court ordered "sex change" from the list of identifying documents that can be used to obtain a marriage license. Since then several LGBT organizations, blogs and publications have joined the call for action.

Disturbingly, some commenters have dismissed the gravity of the situation. It's easy to miss how damaging this bill is since it only deletes three words from the code: "or sex change." Several other identifying documents would still be permitted, such as a passport or drivers license. "If a trans person has the correct sex printed on their other ID," say the naysayers, "they can still get a marriage license."

Technically they are correct. What they miss, however, is the roll that legislative intent plays in the court room. Sen. Tommy Williams, who authored SB 723, has been very clear that his intention is to prevent someone whose original birth certificate assigned them one sex from marrying someone whose original birth certificate assigned them the same sex. In the bill analysis for SB 723 he states
"In a 1999 decision, Littleton v. Prange, by the Fourth Texas Court of Appeals in San Antonio, Chief Justice Phil Hardberger concluded that an individual's sex is decided by biological factors at birth, as indicated on a birth certificate. In Chief Justice Hardberger's opinion regarding the transsexual marriage between two male born men, he stated, 'We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid…'."
By using Littleton to support his bill Williams clarifies that he feels that the sex assigned to someone at birth is, by default, their actual sex and that, regardless of genetics, physiology or personal identity that person can never be legally considered another sex.

Understanding Littleton is the key to understanding the true maleficence of SB 723. The case 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 to guide them in their decisions. If SB 723 becomes law Littleton will, effectively, become binding statewide.

There is very little transgender case law in Texas, and even less legislative history. When the original list of identifying documents was created two years ago by the legislature there was no debate or opposition. The author of the current list, Louis Kolkhorst, later said that she was not aware that a court ordered change of sex was on the list of identifying documents (she authored the House version SB 723 this session (HB 3098)), so there is no documentation of intent from the legislation that created the current list.

In citing Littleton Williams' has laid the ground work for a state-wide policy of refusing to acknowledge that some people are assigned the wrong sex at birth. Considering the current lack of case law or legislative record on the legal status of transgender people in Texas if he is successful his intention in passing SB 723 will become the overriding legal attitude for the entire state. It may even be possible for SB 723 to be used to prevent Texas' courts or agencies from issuing corrected identifying documents like driver's licenses.

So yes, even if SB 723 passes trans people who have a correct drivers license or passport will still be able to marry someone of the opposite sex. But if anyone chooses to challenge the validity of their marriage, as happened to Christie Littleton (and as is currently happening to Nikki Araguz) they will be unable to avail themselves to any of the protections of marriage. What good is a marriage certificate if, when the protections it provides are needed, it will be voided by the courts?

SB 723 is an attack on every trans person in Texas. It must be defeated. Please call these key senators and tell them to "oppose SB 723." If you are unable to call until this weekend call anyway and leave a message. A full voice mail box on Monday morning will go a long way towards helping these senators stand up for what's right.

Mario Gallegos (512) 463-0106
Wendy Davis (512) 463-0110
Rodney G. Ellis (512) 463-0113
Kirk Watson (512) 463-0114
John Whitmire (512) 463-0115
Carlos I. Uresti (512) 463-0119
Juan "Chuy" Hinojosa (512) 463-0120
Judith Zaffirini (512) 463-0121
Royce West (512) 463-0123
Leticia R. Van de Putte (512) 463-0126
Eduardo A. (Eddie) Lucio, Jr. (512) 463-0127
José R. Rodríguez (512) 463-0129


  1. Thank you for writing this and breaking it down for everyone!

  2. Called. Thank you Daniel You are such a great ally.

  3. Just spent the afternoon at the Capitol. I was able to speak to legislative aides in all the listed senator's offices. They were pretty much all on board with a no vote on 723 with the exception of Senator Uresti. His aide stated that he was still undecided. I would encourage as many people as possible give his office a call.

    Paula Buls, LMSW
    Chair, National Association of Social Workers- Texas Chapter GLBT Issues Committee

  4. Thanks Paula - I've been worried Uresti might be the 20th vote. He voted "Present, not voting" when SB 723 came through committee (at one point, before Sen. Huffman came back into the hearing room, a "nay" vote from him would have killed the bill). The good news is that if he votes "present, not voting" on the floor the bill still dies, since it has to receive 20 "Yea" votes to pass.