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Interpreting Littleton v. Prange

court intentionally avoideda creating a legal definition of sex

On May 13, 2009, Kiesa Kay shared an op/ed piece from New York Times titled "Is My Marriage Gay?" by Jennifer Finney Boylan. The following is from an exchange between Emi and Elise Hendrick over Boylan's article.

Forum: WMST-L
Date: 05/13/2009

Hello people,

On May 13, 2009, at 12:30 AM, Kiesa Kay wrote:

This simple article offers insight:

Please be advised that this opinion piece contains an inaccurate claim about the rights of intersex people. The article states:

A 1999 ruling in San Antonio, in Littleton v. Prange, determined that marriage could be only between people with different chromosomes. The result, of course, was that lesbian couples in that jurisdiction were then allowed to wed as long as one member of the couple had a Y chromosome, which is the case with both transgendered male-to-females and people born with conditions like androgen insensitivity syndrome.

In Littleton case, a marriage between a transsexual woman and her deceased (cissexual) husband was invalidated under the theory that Christie Littleton, a male-to-female transsexual, was a man despite her complete transition to living as a woman.

But the ruling does not single out the presence of the Y chromosome as the defining marker of maleness, or state "that marriage could be only between people with different chromosomes." The court simply found that Littleton was male, even though she clearly "wants and believes herself to be a woman."

Texas does not have any law specifically allowing transsexual people to change their legal sex. Littleton had her birth certificate amended by petitioning that it was "inaccurate"--and the change was allowed as her physician provided an expert opinion that she was female. However, the Littleton court ruled that the birth certificate should not have been amended, because her sex on the record (male) was not inaccurate at the time it was recorded. If the birth certificate was not amended, then Littleton is a man and therefore cannot marry another man, the court reasoned.

Like transsexual women, women with complete androgen insensitivity syndrome have XY chromosomes, but there usually isn't any doubt that they are female, and no court has ever re-classified them as male solely on the basis of their Y chromosome (the International Olympic Committee is a different story, but oh well...). There is nothing in the Littleton ruling that would threaten AIS women's marriage to (cissexual) men, or permit AIS women's marriage to women with XX chromosomes.

Further, in the concurring opinion, Justice Karen Angelini specifically wrote: "[Because] we lack statutory guidance at this time, we must instead be guided by biological factors such as chromosomes, gonads, and genitalia at birth. [...] such biological considerations are preferable to psychological factors as tools for making the decision we must make. I note, however, that 'real difficulties ... will occur if these three criteria [chromosomal, gonadal and genital tests] are not congruent.' We must recognize the fact that, even when biological factors are considered, there are those individuals whose sex may be ambiguous. Having recognized this fact, I express no opinion as to how the law would view such individuals with regard to marriage. We are, however, not presented with such a case at this time."

In short, Littleton ruling is a bad precedent for transsexual women, but it does not threaten the marriage of thousands of women with AIS who live in Texas, nor does it create a chromosome-based test for defining who is male or female. The prevailing philosophy behind the ruling is that of respecting legislative intent-- modification of birth certificate was not designed to be a way for transsexual people to change their legal sex, but to correct administrative errors--than anything else.

emi koyama

Date: 05/14/2009

On May 13, 2009, at 11:33 PM, Elise Hendrick wrote:

Actually, the presence of a Y chromosome was dispositive for the court in Littleton v. Prange. In its conclusion, Hardberger, J. asserts that "The male chromosomes do not change with either hormonal treatment or sex reassignment surgery. Biologically a postoperative female transsexual is still a male."

The ruling does contain the finding that Littleton's chromosomes were unmodified by surgeries and hormone treatment, but it was not "dispositive." The court's argument went as follows:

1) Littleton was born male, and this fact was accurately recored on her birth certificate at the time.

2) Littleton had her birth certificate modified to indicate "female" by convincing a different court that the original birth certificate was "inaccurate."

3) However, this court determined that the birth certificate was not "inaccurate" at the time of issuance.

4) Therefore, Littleton's birth certificate should not have been modified, which would mean that her legal sex had not been changed.

5) Because Littleton's legal sex is male, her marriage to another male is invalid in Texas.

Even if surgeries (or more realistically, a breakthrough in gene therapy) were able to replace Y chromosomes in every cell in Littleton's body, the logic behind the court's findings would not change: her birth certificate was modified incorrectly, and therefore she was still male, and could only marry a female.

Chromosomes are, in fact, the only factor on which the court's opinion consistently relies (since every other factor tends to support the opposite conclusion).

That is not true. The ruling also mentions absence of internal female reproductive organs such as uterus, cervix, and ovaries, as well as the fact that every female feature Littleton possessed was "man-made." The ruling also states that there isn't a consensus among physicians as to what makes one a man or a woman, which it cites as the reason the court did not enter into determining what made Littleton male or female (that is, it avoided "judicial activism" by refusing to prescribe a new definition of man and woman).

While it is true that intersexed people are not specifically mentioned in the opinion and the court was not called upon to decide a case relating to IS, strictly speaking, the core holding is easily applicable to intersexed people as well.

It does apply, but not the way Boylan suggests. Boylan claims that marriages between XY males and XY females (i.e. women with AIS) are invalid under Littleton; that is patently false.

How the ruling would apply is: to change sex recorded in one's birth certificate, he or she must show that it was an error at the time of its issuance--and this rule applies to transsexuals as well as to non-transsexuals. But women with complete AIS do not have to amend their birth certificate because they state "female" from the beginning, and therefore Littleton does not threaten their marriages to XY males.

emi koyama <>

Date: 04/16/2008

On May 13, 2009, at 11:33 PM, Elise Hendrick wrote:

Hi Elise,

For everyone else following this exchange: this is going to be my last post on this topic, so please read Littleton v. Prange and make up your own judgment (or write me privately if you have any questions):

On May 14, 2009, at 4:39 PM, Elise Hendrick wrote:

The ruling, from which I quoted, concludes that Littleton was "biologically male" on the basis that her chromosomes were unchanged.

In his opinion, Justice Hardberger goes through many different biological and medical factors (and it's not just chromosomes-- it includes psychological state as well as internal organs, external appearances, and various competing ideas among physicians), and *then* states that defining what makes one a man or a woman was outside of the court's mandate.

In other words: yes, Hardberger states that Littleton was "biologically male," but that is not why he ruled that she was *legally* male under Texas law. The reason he ruled as such is simply that her birth certificate registered her as a male at the time of her birth, and it has not been shown to be inaccurate.

Here's what Hardberger said after reviewing all relevant social, biological, and medical facts: "We recognize that there are many fine metaphysical arguments lurking about here involving desire and being, the essence of life and the power of mind over physics. But courts are wise not to wander too far into the misty fields of sociological philosophy. [...] Such matters though are beyond this court's consideration. Our mandate is, as the court recognized in Ladrach, to interpret the statutes of the state and prior judicial decisions."

Further, he wrote: "Christie was created and born a male. Her original birth certificate, an official document of Texas, clearly so states. [...] We believe the legislature intended the term "inaccurate" in section 191.028 to mean inaccurate as of the time the certificate was recorded; that is, at the time of birth. At the time of birth, Christie was a male, both anatomically and genetically. The facts contained in the original birth certificate were true and accurate, and the words contained in the amended certificate are not binding on this court."

I honestly don't understand why some trans activists insist that Littleton ruling created a chromosome-based legal definition of sex, when the court specifically and intentionally avoided making any such criteria.

This skips over the court's reasoning (such as it is). The court did not just assert by ipse dixit that the original birth certificate was not inaccurate, but instead went through a variety of biological factors, of which only the chromosomes really were accorded decisive weight

No. After reviewing what the court considers biological and medical facts (and not just chromosomes), the court intentionally avoided the question of what makes one a man or a woman. Instead, it relied on legal formalities--that Littleton was registered as male at the time of birth, and its accuracy at the time was uncontroversial.

It does apply, but not the way Boylan suggests. Boylan claims that marriages between XY males and XY females (i.e. women with AIS) are invalid under Littleton; that is patently false.

Whether it is false at all is at least debatable.

Ah, I suppose a lawyer could debate anything, but it won't be a good lawyer.

It could be that it is limited to its own facts or read as only applying to marriages between a cisgendered man and a trans woman.

No, it does apply to other cases: as Boylan points out in the original article, the ruling also made it possible for a same-sex couples to marry if one of them is a transsexual and the other is cissexual. In fact, a lesbian couple--of which one was a trans woman and the other cis--successfully applied for a marriage certificate, since they were considered opposite sex couple under Littleton.

I'm not suggesting that Littleton does not apply to intersex people; I am pointing out that Boylan was incorrect to suggest that thousands of AIS women would lose the right to marry XY partners (or gain the right to marry XX partners, for that matter). There is no basis for such interpretation under Littleton.

However, there is nothing inherently limiting in the opinion itself, and anyone with an interest in a ruling that a particular marriage (theirs or somoene else's) is void ab initio will certainly be urging the broader reading (applicability to women with a Y chromosome and/or women lacking internal female reproductive organs from birth - both of which would certainly apply to a woman with cAIS).

This is not "broader reading"; it is simply misreading. And yes, people sometimes conveniently misinterpret very clear implications of any given statutes or precedence when they are motivated by some exterior interest (e.g. wanting to invalidate marriage to change the distribution of estate).

But what I don't understand is that Boylan, you, and some other trans activists seem to insist on this particular misreading of the ruling, despite the fact no such exterior motives exist. Why?

Some perhaps never actually read the ruling, so they believed what another person had told them. But it is puzzling to me that you and some other people would insist on such unreasonable reading of the ruling.

This would be a reasonable interpretation had the Littleton court limited itself to examining Littleton's medical/anatomical status at the time of issuance of the birth certificate. However, the court in fact dedicates a substantial amount of space to determining whether subsequent anatomical, hormonal, etc. changes could render a birth certificate inaccurate.

Hardberger does dedicate a substantial amount of space to discussing every detail of Littleton's physical state, but that is not germane to the logic of the ruling. The court's interpretation of Texas Health and Safety Code is that birth certificate could be corrected only if the information was inaccurate at the time it was recorded, that is, at the time of birth, and as such whether Littleton had XX or XY chromosomes is not the "dispositive" factor.

Why, then, did Hardberger used so many words to discuss Littleton's anatomical state? My guess is that 1) he was probably confused about what the case was about or on what basis he was ruling on, and 2) the same old objectification and voyeurism that lead journalists and writers to routinely describe transsexual people's anatomy, and physical appearances.

Assuming that the court was not simply indulging its own curiosity or attempting to increase the dramatic tension by drawing out the conclusion,

Actually, I do think that the court was simply indulging its own voyeurism. It's not unheard of in cases that involve transsexual people.

There are certainly grounds for arguing that the Littleton decision should not apply to cases in which one spouse is intersexed in some way or another, not least the fact that the decision is nonsensical and makes a hash of the available science

It seems nonsensical because you are misinterpreting the ruling. The ruling *intentionally* avoids making a clear legal definition of sex, and as such it does not affect CAIS women's legal status.

It appears to me that some trans activists (I'm not talking about you--I don't know enough about your beliefs and ideas) as well as gay and lesbian activists are using this "tortured analogies" to make it sound as if thousands of CAIS women's marriages would be invalidated by Littleton, precisely because of the nonsensical nature of this implication ("What? Someone who was born female, raised as girls, and always lived as women could be denied right to marry a husband?"), in order to arouse indignation against Littleton ruling as well as to the ban on same-sex marriage.

In the meantime, I'm concerned that very serious pain (stigma, fear, and possibly legal threat, which does not have to be successful in order to be damaging) such strategies could inflict on CAIS women and other intersex people are overlooked.

While Littleton does not threaten CAIS women's marriage to XY males, its misinterpretation being published in The New York Times can spread the impression that CAIS women aren't real women ("Look, according to New York Times, CAIS women aren't legally women in Texas!") and repeat the very injustice trans activists are fighting against, which is to deny their sense of who they are.

emi koyama <>