Intro to FAIL

Nikki’s mother recently sent me an email in which she gives voice to some of the many issues I have with the way this whole drama unfolded. Since she said a number of things which I wholeheartedly agree with, I posed it so that all can read what Nikki’s mother had to say about the injustice her daughter suffered. Do yourself a favor and read her letter to Judge Clapp here.

I want to touch on some of the logical fallacies inherent in Judge Clapp’s decision – one that relies heavily upon a Texas 4th Circuit Court of Appeals case known as Littleton v Prange.

So, let me get down to the logical fallacies the small-town Republican, Judge Clapp had to ignore to arrive at the laughable decision that Nikki is a dude.

Fallacy #1: Obstetricians are infallible:  When is it illegal to get a second opinion from a medical expert about an first medical opinion? When a sex box is checked on a medical certificate of live birth.

A medical certificate of live birth (AKA “birth certificate”) is nothing more than a medical document which is an initial record of information about a birth. The initial sex determination is usually made by a non-specialist without any genetic testing, any knowledge of the baby’s innate gender identity or any knowledge of internal intersex conditions (brain morphology, gonad configuration, chromosomal configuration, etc). Under Republican ideology, a medical specialist’s opinion is worthless and new medical information cannot be considered because they literally believe that the initial medical opinion is infallible. Whatever sex box the obstetrician checked off can never be – under any circumstance  – corrected should new medical information become available to a more qualified medical expert about their patient’s sex. If the initial non-gender specialist opinion’s was that a baby is male, then that medical opinion can never, ever be questioned of corrected even if the child or young adult is found to have internal intersex conditions.

Should a medical specialist later discover medical facts that call into question the initial non-specialist’s opinion, that new medical information must be discarded regardless of the way judicial interference in medical treatment and record keeping might impact the lives of American citizens.

Here’s the only valid medical certificate of live birth for Nikki Araguz:

Birth Certificate of Nikki Araguz

Yes, you’re reading this right. Box #2 of this Certificate of Live Birth records her sex to be female. So why did the judge say that Nikki’s birth certificate shows her to be male you ask? Because he’s decided that this – the only legal certificate of live birth in existence –  has no legal standing. Yup. You know what he’s decided does have legal standing? Wait for it…

A photocopy of a voided certificate of birth which seems to have been illegally obtained that no State or Federal government will recognize.

Heather Delgado claimed that she obtained a photocopy of Nikki’s voided birth certificate from a co-worker who worked in a health clinic that Nikki attended. Heather went on to claim that it never occurred to her to ask this co-worker how she obtained this copy.

So there you have it. Everyone, no need to ever get anything corrected on your birth certificate because the voided version is apparently what carries legal standing and not the version recognized by State and Federal governments.

Fallacy #2: God Dunnit:  The “legal” question that was “answered” in Littleton v Prange (which Judge Clapp’s decision is based upon) is:

The deeper philosophical (and now legal) question is: can a physician change the gender of a person with a scalpel, drugs and counseling, or is a person’s gender immutably fixed by our Creator at birth? – Chief Justice Phil Hardberger, Littleton v Prange, 1999

This is the legal underpinning that Judge Clapp used to arrive at his decision that Nikki is a dude. Trust a Republican to write his religion into case-law. So, not only must we accept Logical Fallacy #1, but now people like me must live under Hardberger’s religious views. As a Theravada Buddhist, Hardberger’s “legal” question is a violation of my religious freedom. Hardberger has literally claimed in his legal decision that:

1. There is a Creator.
2. This Creator immutably fixes the sex of each and ever one of us.
3. This Creator sexes each one of us at the moment of birth.

My religion explicitly states the opposite. Not only is there no Creator in Theravada Buddhism, Buddhist scripture explicitly states that sex determination can and does sometimes happen later in life.  So, who’s religion is more important when considering my medical issues you might ask? Well, let me give you a clue: Buddhist religious views on the question of sex determination of trans people doesn’t count. Hardberger’s religious views are given more weight in the law than a Buddhist’s religious view.  Is that American? Nope. Is that Republican? Yup.

• Did either Judge Hardberger or Judge Clapp offer any evidence to support the legal reality of a Creator? Nope.
• Did either Judge Hardberger or Judge Clapp offer any evidence to support the legal reality that a Creator immutably fixes the sex of each and ever one of us? Nope.
• Did either Judge Hardberger or Judge Clapp offer any evidence to support the legal reality that this Creator sexes each one of us at the moment of birth? Nope.
• Did either Judge Hardberger or Judge Clapp address the obvious (at least to me) problem that linking a legal test for sex determination to a Creator who sexes each and every person at the moment of birth just might either conflict with other established religions or might be a fairly unscientific approach to making legal sex determinations? Nope. Of course not.

Fallacy #3: Sex Change Does Not Mean Change of Sex: Texas Family Code § 2.005(b)(8) states that a marriage license can be issued for a valid marriage if someone shows proof of a “sex change.”

You’d think that term is fairly self-explanatory, wouldn’t you? Well, if you think so, you’d be wrong. See, for the ethically challenged lawyers of Heather Delgado, proof of a “sex change” means proof of “unchanged sex”. Seriously.

 Houston Chronicle, August 3, 2010

Heather Delgado’s lawyer (who was banned from practicing law for ethical violations) Ed Burwell and Chad Ellis claimed that in Texas law, proof of a “sex change” means that one is showing proof that there has been no “sex change”. Yes, black is white and up is down.

Only one of these people had a “sex change”. For Judge Clapp, a marriage between these two people would be a same-sex marriage.

UPDATE: 

Nikki Araguz Trial Real Time Updates: 7/6/2011