The Fort Worth Star Telegram reports that El Paso County Attorney Anne Bernal has requested that Attorney General Greg Abbott rule on whether she can issue a marriage license to two women, one of whom is a trans woman.
The State Attorney General is the top lawyer in Texas and is often asked to make rulings about how to interpret the law. Abbott's rulings can be overturned by the courts, but that process takes time.
If Abbott issues a ruling in the case he will have to find a way to work around Littleton v. Prange, a 1999 case in Bexar county where a trans woman, Christie Lee Littleton, 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.
Littleton is an important bit of case law in Texas. It was even cited by the Liberty Institute in their filing on behalf of Rep. Warren Chissum and Ag. Comm. Todd Staples in the Dallas Divorce Case.
Several same sex couples with one transgender partner have been married in Bexar county using Littleton as precedent. If Abbott rules that El Paso County cannot issue this marriage license it could put the legality of those marriages in jeopardy, but it could also open the door to a number of straight couples that include transgender people, and could be grounds for an appeal by Mrs. Littleton.
Abbott can’t have it both ways. He will either have to rule that straight trans people are allowed to get married, or that gay trans people are. It will be curious to see whether his transphobia or his homophobia rules.
Update: Meghan Stabler has posted more information on the case. It seems that rather than wait for a ruling in El Paso County the couple went to Bexar County to get married. Abbott's office may still rule on the matter, but will likely take several months.