Texas May Strip Away Transgender Marriage Rights

Two years after Texas become one of the last states to allow transgendered people to use proof of their sex change to get a marriage license, Republican lawmakers are trying to roll back the clock.

Advocates for the transgendered say a proposal to bar transgendered people from getting married smacks of discrimination and would put their legally-granted marriages in danger of being nullified if challenged in court.

One of the Republican sponsors of the legislation said he's simply trying to clean up the 2009 law in a state that bans same-sex marriage under the Constitution.

"The Texas Constitution," Sen. Tommy Williams said, "clearly defines marriage between one man and one woman."

The legislation by Williams, of Houston, and Rep. Lois Kolkhorst, of Brenham, 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 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.

Most states allow transgendered people to get married using a court order that also allows them to change their driver's license, experts said. Some advocates for the transgendered say the Texas proposal would not only prevent future transgendered marriages but also open up the possibility that any current marriage could be nullified.

"It appears the goal is to try to enshrine a really horrifying ruling and making it law in the state of Texas," said John Nechman, a Houston attorney whose law firm does work for the gay, lesbian, bisexual and transgendered community.

Gov. Rick Perry's spokesman Mark Miner said the governor never intended to allow transgendered people to get married. He said the three-word sex change provision was sneaked through on a larger piece of legislation Perry signed two years ago regarding marriage licensing rules for county and district clerks. Perry, a Republican, supports efforts to "clarify the unintended consequences" of that law, Miner said.

"The governor has always believed and advocated that marriage is between a man and a woman," Miner said.

Williams said he understands that some people's gender cannot easily be determined when they are born and they later have an operation that could change the originally assigned gender.

"It is an emotional issue," Williams said. "I can appreciate that."

But when asked about claims of discrimination, Williams insisted his goal is to simplify marriage licensing for clerks who are trying to balance the 2009 law with the 1999 Texas appeals court ruling.

"They shouldn't have to resolve these issues," Williams said. "We have confused them."

Williams' legislation has cleared a committee vote and now awaits approval by the full Senate, which is predominantly Republican. The version in the GOP-dominated House has not yet been given a hearing.

Some advocates for the transgendered say that even if the legislation is passed, transgendered people could still get marriage licenses using other state and federally-issued documents such as a drivers' license or passport. But without the weight of a court order officially recognizing their gender reassignment, they worry any legal challenge, such as a divorce or estate dispute, would nullify the marriage.

"We want to be recognized as people. We want to have the same rights as all of you," Lisa Scheps of the Transgender Education Network of Texas said at a March hearing on Williams' bill. No one testified in favor of the legislation.

Kolkhorst, who authored the 2009 law that allowed the sex change documentation to be used in getting marriage licenses, did not respond to messages left at her office seeking comment on why she now wants to take it out.

The 2009 law originally was filed without the sex change document provision, but House records show Kolkhorst put it in as part of a lengthy amendment in the last month of the session. The changed legislation passed the House and Senate and Perry signed it into law a month later.

"It would be terrible for Texas, now that it finally caught up with the rest of the country, to take a step back," said Shannon Minter, an attorney for the national Transgender Law and Policy Institute. He said most states allow marriages for people who have undergone sex reassignment surgery.

Nikki Araguz was at the Capitol last week to lobby against the legislation. Her husband, a volunteer firefighter, was killed in the line of duty in July 2010 and she is being sued by her dead husband's family over control of his $600,000 estate.

Araguz had a final sex change operation in October 2008, two months after they were married, and says her husband knew and supported her. His family argues the marriage should be voided because Araguz was born a man and same-sex marriage is not legal in Texas. A hearing is scheduled for May 13.

"This is crazy. I feel like this is a personal attack on me," Araguz told The Associated Press. "If this bill is passed, it essentially means women like myself who have had reconstructive surgery will not be allowed to marry their heterosexual partner."