Victory on Anti-Trans Marriage Bill, At Least For Now

Queer activists across the country have spent the last week fighting SB 723, by Sen Tommy Williams (R - The Woodlands). The bill would remove a court ordered "change of sex" from the list of documents that can be used to prove identity when obtaining a marriage license and has the potential to void all marriages in Texas between anyone who has had their legally recognized sex changed and a person of the opposite sex.

The Senate has published it's intent calendar for next week and SB 723 is NOT on it! (The intent calendar is a list of bills that Senators intend to bring up for a vote using a loophole in the Senate rules that allows 2/3 of the Senate to consider bills out of order.) The Texas Legislature Online lists the last action on the bill as "Not again placed on intent calendar ," which may be the sweetest words queer Texans will read this session.

SB 723 is now on the Senate's "general calendar," a list of bills to be considered in accordance with Senate rules and which therefore do not require the 2/3 vote of support to pass. The General Calendar is organized by type of bill:

1. Special orders: Like the intent calendar 2/3 of Senators must agree to make a bill a "special order," since SB 723 does not appear to have the required 2/3 support it is unlikely to be made a special order.
2. Unfinished business: anything left over from the previous legislative day.
3. Senate Joint Resolutions: Joint Resolutions are used by the legislature to exercise the power granted it by the state constitution (for instance to propose a constitutional amendment), Senate Joint Resolutions are Joint Resolutions that originate in the Senate.
4. Senate Resolutions; just plain ol' "resolutions" (without the words "joint" or "concurrent" in front of them) are used to communicate with-in the body they originate (in this case the Senate). For instance resolutions can are used to write the Senate rules or for the Senate to thank and/or congratulate citizens.
5. Senate Concurrent Resolutions: Concurrent Resolutions communicate the will of the legislature to other bodies, for instance instructing branches of the federal legislature to pass or repeal a law. Senate Concurrent Resolutions originate in the Senate.
6. Senate Bills on third reading;Senate rules require that bills be read on "three of several days." On the first reading the bill is referred to committee. The second reading is the first opportunity for debate on the Senate floor. If the bill passes after the second reading it then must be read again and debated again on a different legislative day (2/3 of the Senate can by-pass this rule, which is common for bills on the intent calendar but rarer for bills on the general calendar).
7. Senate Bills on second reading: Bills that are being debated for the first time on the Senate floor (see above). This is where SB 723 falls on the General Calendar.
   
8. House Joint Resolutions: Like Senate Joint Resolutions, but originating in the House.
9. House Bills on third reading: Like Senate Bills, but originating in the House.
10. House Bills on second reading: Like Senate Bills, but originating in the House.
11. House Concurrent Resolutions: Like Senate Concurrent Resolutions, but originating in the House.

Additionally, each of the 11 groupings of bills is placed in the order they were voted out of committee. Due to this strict structure for ordering the general calendar SB 723 is currently the 74th bill in line. Most of the time bills are only on the general calendar if they don't have the 2/3 support needed to be brought up through the intent calendar. This means that they tend to be more controversial and the floor debate on them tends to be prolonged, making working through the general calendar an arduous and lengthy process.

Never the less queer activists must continue to watch SB 723 carefully as it works its way up the general calendar. Williams has until May 20th to get this bill voted out of the Senate, after which it must work it's way through the House before May 25th. The longer it's held on the general calendar, the less likely it is to pass.

On the west wing of the capitol the companion bill to SB 723, House Bill 3098, has been sitting in the Public Health Committee since March 18th without a hearing. Lois Kolkhorst (R-Brenham) is both the author of HB 3098 and the chair of Public Health. Kolkhorst was also the author of the legislation that created the list of acceptable identity documents for obtaining a marriage license.

Before 2009 the only way for a person to prove their identity when obtaining a marriage license was to present the county clerk with a birth certificate. During the 81st session Kolkhorst filed HB 3666 to add a driver's license or passport to the list. Several legislators pointed out that some people don't have a driver's license or passport and started recommending other forms of ID, like a military ID, or school records. The session was rapidly coming to a close and Kolkhorst was desperate to get her bill out of the House and on to the Senate so she told her fellow House members to make a list of every identifying document they could think of and then sent that list to legislative council (the legislature's lawyers) for them to draft an amendment that incorporated everyone's suggestions.

Unfortunately for Kolkhorst, and fortunately for any Texan who's needed to have their legally recognized sex changed, she didn't bother to actually read the amendment before proposing it on the House floor. The amendment passed on a voice vote (meaning it was so uncontroversial that no-one wanted to bother counting votes) and then went to the Senate where it also passed with no debate and no opposition.

Now it seems that, two years later, Kolkhorst has read the law she created and wants to take it back. In contrast to SB 723 (which just removes one of the documents), HB 3098 rewrites the entire list, removing about half of the currently available documents, including a court ordered sex change. Additionally Kolkhorst's bill requires applicants for a marriage license who are using foreign identity documents to prove that they are legal residents of the United States.

As chair of the House Public Health Committee Kolkhorst can schedule her bill for a hearing pretty much whenever she wants, so I'm surprised she's let it sit idle for so long. Hopefully that indicates a lack of motivation on her part to pass the legislation. Although I suppose it's possible that she hasn't bothered to read this bill either, and has forgotten she's filed it.

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