NO. 13-11-00490-CV

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

AT CORPUS CHRISTI

In re:

ESTATE OF THOMAS TREVINO ARAGUZ, III,

Deceased.

APPELLANT’S REPLY BRIEF

ARGUMENT IN REPLY

I. The summary judgment evidence refutes the appellees’ insistence that Nikki was “born a man.”

Both of the appellees base their arguments on the same false premise—that Nikki was “born a man.”  The appellees repeat this statement over and over, as though sheer repetition could make it true:

• “the evidence establishes that Nikki was born as a male” (Delgado Br. at 4)
• “She was born as a male” (Delgado Br. at 5)
• “Nikki was born as a male”  (Delgado Br. at 6)
• Nikki was “actually born as a man” (Delgado Br. at 7)
• Nikki “was born as a man” (Delgado Br. at 16)
• Nikki is “a person born as a man but living as a woman” (Delgado Br. at 16.)
• Nikki is “a person born as a man” (Longoria Br. at viii)
• “Appellant was born a male” (Longoria Br. at 1)
• “Nikki Araguz was born a male” (Longoria Br. at 17)
• “Nikki was undoubtedly biologically male.” (Longoria Br. at 22)
• “Biologically a post-operative female transsexual is still a male.” (Longoria Br. at 27)
• “It is undisputed that Appellant was born a male” (Longoria Br. at 27)
• “Appellant remains a male” (Longoria Br. at 27)

Contrary to the appellees’ statements, the uncontroverted summary judgment evidence, including Dr. Collier Cole’s uncontroverted expert testimony, establishes that Nikki was born with Gender Identity Disorder, meaning that she was born with male genitalia but a female brain.  (See Appellant’s Br. at 1-3; 6CR1608-1703; 7CR1852; Supp.CR1968-2104.)  Just as a fetus’s rudimentary sex organs differentiate in utero into male or female genitalia, the fetal brain differentiates to one sex or the other.  (See id.)  Medical studies “clearly support the paradigm that in transsexuals sexual differentiation of the brain and genitals may go into opposite directions and point to a neurobiological basis of gender identity disorder.”  (See id.)

The appellees did not introduce a shred of summary judgment evidence to the contrary.  No matter what the appellees say—or how many times they say it—they cannot change the uncontroverted  medical fact that Nikki was born a transsexual female, not a male.

II. Nikki does not seek to apply the 2009 statutory amendments retroactively.

Delgado argues that the 2009 amendments to section 2.005 do not apply retroactively, but that argument is a “straw man.”  Nikki does not seek to apply the amendments retroactively.

As Nikki explained in her principal brief, the 2009 amendments are relevant in two ways.  First, the 2009 amendments erase any doubt about the meaning of section 2.005 as it existed before 2009, including Texas’s pre-2009 recognition of transsexualism.  Nikki made this clear in her principal brief:

When Thomas and Nikki married in 2008, section 2.005 provided in general terms that an applicant could prove his or her identity to obtain a marriage license by presenting any “certificate, license, or document” providing that proof.  When the legislature amended the statute in 2009, it made it plain that those broad categories have always included the 19 specified documents, including proof of a “sex change.”  Thus, the amendment confirmed that Thomas and Nikki were entitled to marry at the time of their wedding ceremony in 2008.

(Appellant’s Br. at 19 (citations omitted).)  Delgado agrees, noting in her brief that the 2009 amendments, rather than fundamentally changing section 2.005, merely “added specificity, listing nineteen different documents which applicants could use.”  (Delgado Br. at 11.)  The specific 2009 amendments thus confirmed the meaning of the more general pre-2009 version of section 2.005, which governs the validity of Nikki’s 2008 ceremonial marriage to Thomas.

The 2009 amendments are relevant for another reason, as well.  If the 2008 ceremonial marriage was invalid for any reason, the 2009 amendments created a valid informal marriage that began on the date the amendments became effective.  (See Appellant’s Br. at 15.)

For both of these reasons—neither of which involves applying the 2009 amendments retroactively—the marriage between Thomas and Nikki was valid.

III. Section 2.005 comports with the ban on same-sex marriages by clarifying that Nikki, a transsexual female, can marry a man—not another woman.

Rather than focusing on the language of the 2009 amendments, Delgado protests that the Texas Legislature, having declared same-sex marriages void in 2003, could not possibly have intended to “legalize transgender marriages” or “validate transgender marriages” in 2009.  (Delgado Br. at 18, 21.)  But nothing in amended section 2.005 suggests that the Legislature is validating or legalizing marriage between anyone other than a man and a woman.  Section 2.005 simply confirms that a transgendered individual has the right to marry a person of the opposite sex, just as we all do.  See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (recognizing “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment”).

Had the Legislature declared that there is no such thing as a “sex change,” it would have violated its ban on same-sex marriage by leaving transsexual females free to marry other women, but not men.  But in 2009, when it decreed that Texans may obtain marriage licenses by presenting “a court order relating to the applicant’s name change or sex change,” the Legislature made the opposite choice, opting to recognize the well-established concept of a “sex change” and thus confirming that a woman like Nikki, a transsexual female, can marry a man, not a woman.  Tex. Fam. Code § 2.005.

When the Legislature made that choice, it did not “completely redefine marriage,” “substantially redefine the marriage relationship in Texas,” “set aside Texas’s crystal clear legal definition of marriage,” “change the marriage definition,” or perform any other radical act.  (Delgado Br. at 15, 17, 19, 20.)  Rather than undermining the ban against same-sex marriage, the Legislature clarified how that ban applies to marriages involving transsexual Texans.  And the Legislature did so in a logical way, as illustrated by a recent matter from El Paso County.

In 2010, Sabrina Hill, a transsexual female, applied to the El Paso County Clerk for a license to marry Therese Bur, who had been female all her life. (6CR1591-98.)  Sabrina presented her birth certificate and documents that identified her as a transsexual female who had undergone a “sex change.” (6CR1591-98.)  The County Clerk, unsure of the eligibility of the two to marry, referred the matter to the County Attorney, who concluded under section 2.005 that Sabrina “is a female and is not eligible to obtain a marriage license in Texas to marry another female, see Tex. Const. art. I, § 32, Tex. Fam. Code Ann § 6.204(b).”  (6CR1596.)

Surely this is the result the Legislature intended when it amended section 2.005.  Sabrina had identified as a female since birth, had lived for many years as a female, and had the anatomy of a female.  It is hardly surprising that the Legislature would take the view that a transsexual female’s marriage to another female would be a same-sex marriage.  Accordingly, the Legislature implemented the prohibition against same-sex marriages by amending section 2.005 to clarify that a transsexual female may marry a male, not another female.  Section 2.005 is consistent with the Texas ban on same-sex marriage, and this Court should apply it as written.[1]

IV. Nikki’s California judgment and birth certificate are entitled to full faith and credit.

Delgado acknowledges that Nikki met all requirements under California law to obtain judicial recognition of her female status and, accordingly, was awarded a judgment by a California court declaring that she is female and ordering that her birth certificate reflect that status.  However, Delgado incorrectly argues that the full faith and credit clause does not compel Texas courts to recognize and give effect to the California judgment.  In fact, that is precisely what the clause compels Texas courts to do.

A. The California judgment and birth certificate are binding on third parties.

Citing Baker v. General Motors, 522 U.S. 222, 235 (1998), Delgado argues that “the Delgado children . . . are not bound by res judicata or the Full Faith and Credit Clause to the California judgment” because they were not parties to the proceeding in which the California court determined Nikki’s sex.  (Delgado Br. at 3-4.)  But Baker is distinguishable, because that case did not involve a “status determination.”

Unlike most judgments, which are binding only against participants in the proceeding, determinations of a person’s legal status typically are binding on third parties as well.  See Restatement (First) of Conflict of Laws § 119 cmt. d.  The law prohibits third parties from disturbing a person’s legal status because the “legal establishment of status is a socially important element of the legal order.”  Id. § 119 cmt. c.  Indeed, third parties generally lack standing to challenge a legal change in a person’s status.  See Julie A. Greenberg & Marybeth Herald, You Can’t Take It With You: Constitutional Consequences of Interstate Gender Identity Rulings, 80 Wash. L. Rev. 819, 849 (2005).  Status determinations “are intensely personal to the individual to whom they pertain, and therefore, the ability of others to obtain standing to contest the effectiveness of otherwise legitimate records should be limited.”  Shawn Gebhardt, Comment, Full Faith and Credit for Status Records: A Reconsideration of Gardiner, 97 Cal. L. Rev. 1419, 1420 (2009).  The Delgado children had no standing to contest whether Nikki was entitled to an amended birth certificate under California law.  Nor would they have had any grounds for doing so—even now, they do not dispute that Nikki was born in California and presented the California court with the required evidence documenting her sex-reassignment surgery, in compliance with California law.

Delgado acknowledges that a determination of gender is a status determination.  (Delgado Br. At 25 n.34.)  She further concedes that the Restatement (Second) of Judgments “suggests that a status determination should bind all persons, regardless of their connection to the underlying litigation.”  (Delgado Br. at 25.)  Nevertheless, she argues that the Restatement (Second) of Judgments “suggests . . . that the preclusive force given to status determinations wanes when ‘another state has correlative authority to adjudicate the status or its incidents.’”  (Delgado Br. at 25.)  But Texas does not have any “correlative authority to adjudicate” Nikki’s sex, because Nikki was born in California.  As one commentator has explained, when addressing the effect of an amended Wisconsin birth certificate in Kansas:

[I]t is largely undisputed that Kansas has an interest in regulating marriages that take place within the state.  And in some cases, disputes that implicate the status of a Kansas marriage are properly before Kansas courts, which may properly apply Kansas law.  But a dispute that, at bottom, is a dispute over the sex of one of the partners, when that question has been decided in a sister forum, is not one that is local—or even partly local—to Kansas.  It is wholly local to Wisconsin, the state in which the legislature passed statutes detailing the amendment procedures governing Wisconsin-issued birth certificates, in which a judge issued an order to change a record in accord with those statutes, and in which an amended certificate was issued and a legal status was changed.  Thus, this is an area in which a sister state is competent to legislate but the forum state is not.  A Wisconsin birth certificate will forever be a Wisconsin birth certificate.  It will never be a Kansas birth certificate, and therefore Kansas has no interest in either the regulation of Wisconsin birth certificates or the status that arises from such regulation.

Gebhardt, supra, at 1443-44.  The same is true here.  Texas has no interest in the regulation of California birth certificates or the status that arises from that regulation.

Delgado cites one Texas case in support of her argument that third parties may relitigate status determinations.  See Attorney Gen. of Tex. v. Lavan, 833 S.W.2d 952 (Tex. 1992).  In that case, the Texas Supreme Court merely applied a statute authorizing the State of Texas to bring a suit involving the parent-child relationship.  See id. at 955 (applying Tex. Fam. Code § 11.03(a)(5)).  Because it is a function of the government to establish status determinations, it is hardly surprising that a statute would permit the government to litigate those determinations.  In contrast, there is no statute that authorizes private litigants to do the same, and nothing in Lavan suggests that they have such authority.  Nikki has been judicially determined to be female, and third parties may not relitigate that determination.

B. The full faith and credit clause requires Texas to recognize that Nikki is a woman, even as it applies its own law regarding whom a woman may marry.

Delgado cites Adar v. Smith for the proposition that the full faith and credit clause “simply provide(s) nationwide res judicata to the issues and claims fully and finally adjudicated between the parties to a judgment—‘no more, no less.’”  (Delgado Br. at 21-22 (citing Adar v. Smith, 639 F.3d 146, 151-52 (5th Cir. 2011) (en banc), cert denied, 132 S. Ct. 400 (2011)).  Quoted correctly, however, what Adar actually says is this: “Simply put, the clause and its enabling statute created a rule of decision to govern the preclusive effect of final, binding adjudications from one state court or tribunal when litigation is pursued in another state or federal court.  No more, no less.  Because the clause guides rulings in courts, the ‘right’ it confers on a litigant is to have a sister state judgment recognized in courts of the subsequent forum state.”  Id. (emphasis added).  The fundamental, constitutionally protected right described in Adar—Nikki’s right to have the California judgment and birth certificate recognized in Texas—is at the heart of this case.

In the Adar case, Adar and Smith jointly adopted a child in New York and obtained a New York adoption decree.  639 F.3d at 149.  They then sought to amend the child’s birth certificate in Louisiana.  Id.  The Louisiana Registrar “concede[d] that it is bound by the New York adoption decree, such that the parental relationship of Adar and Smith with [the child] cannot be relitigated in Louisiana.”  Id. at 152.  At the same time, the Registrar applied Louisiana law and declined to issue an amended birth certificate to parents who were not married.  Id. at 150-51.  The Fifth Circuit held that this was proper, explaining that the full faith and credit clause required the Registrar to recognize the parental relationship established in New York, while permitting the Registrar to determine the consequences of that relationship under Louisiana law.  Id. at 159-60.

The Adar court cited Estin v. Estin, 334 U.S. 541 (1935), which illustrates the same principle.  There, a husband obtained a Nevada divorce decree that was silent about whether he would be required to pay alimony.  Id. at 542.  The wife then obtained a New York order that recognized the Nevada divorce and, applying New York law, required the husband to pay alimony.  Id. at 543.  The Supreme Court held that the full faith and credit clause required New York to recognize the Nevada divorce, while permitting New York to determine whether the husband would be required to pay alimony under New York law.  Id. at 543-49.

Applying those principles here, Nikki obtained a judgment and amended birth certificate in California adjudicating that her legal sex, as of the date of her birth, is female.  The full faith and credit clause, as applied in Adar and Estin, requires Texas to recognize that Nikki’s sex has been adjudicated in California and may not be relitigated in Texas.  Adar and Estin also teach that Texas, having recognized that Nikki is a woman, may then apply its own law that addresses whom a woman may marry.  Thus, even if California began allowing women to marry other women, Texas could continue to enforce its own law providing that women may marry only men, and that law would apply to Nikki just as it would apply to every other female Texan.  Delgado is therefore wrong to argue that giving full faith and credit to Nikki’s California judgment and birth certificate “prevents Texas’s courts from enforcing the Texas definition of marriage.”  (Delgado Br. at 26.)  The full faith and credit clause does not require Texas to change its marriage laws, but it does require Texas to recognize that Nikki is a woman.

V. Littleton was decided incorrectly.

This Court need not determine whether Littleton was decided incorrectly, because that decision has been legislatively superseded and is distinguishable in any event.  (Appellant’s Br. at 36-37, 42-43.)  Delgado nevertheless attempts to defend the reasoning of Littleton, but her defense of that decision is incomplete at best.

Delgado addresses one of the flaws in Littleton, arguing that the Littleton court “properly construed § 191.028 as to allow a birth certificate amendment to occur only when the certificate did not accurately reflect the events at birth and as not allowing an amendment based on subsequent events.”  (Delgado Br. at 9.)  Delgado reads far too much into section 191.028, which does not contain any hint that the Legislature meant to distinguish between events occurring at birth and subsequent events.  (See Appellant’s Br. at 38-40.)  But even if section 191.028 had contained such a distinction, the Littleton court still would have been wrong to conclude that Christie Lee Littleton was not entitled to a marriage license.  In 1999, Family Code section 2.005 authorized county clerks issuing marriage licenses to accept as proof of identity and age “a certified copy of the applicant’s birth certificate or . . . some certificate, license, or document issued by this state or another state, the United States, or a foreign government.”[2]  Thus, even if Christie had never applied for an amended birth certificate, she still could have obtained a marriage license by showing her driver’s license or any other document identifying her as female.  (See Appellant’s Br. at 40-41.)  Although Nikki explained in her brief that Littleton was flawed for this reason, Delgado has no response.  Littleton was decided incorrectly.

VI. The judgment cannot be affirmed on the basis of judicial estoppel.

Unlike Delgado, Longoria argues that the judgment can be affirmed on the basis of judicial estoppel.  According to Longoria, Nikki stated she was male when seeking a name change in 1996 and cannot now claim otherwise.  But Longoria fails to mention that when Nikki sought the name change, she correctly informed the court that “I am a woman with male anatomy, working toward a sex change.”  (1CR21-22 (emphasis added).)  Nikki later explained that she had been advised to complete legal documents in a manner consistent with her original birth certificate until the birth certificate had been corrected.  (1CR278.)

In light of Nikki’s clear and candid statement to the court and her deposition testimony, it is clear that she placed the letter “M” on official forms to avoid a conflict with other official documents while also disclosing her status as a transgender female whenever the opportunity arose.  Even if there were some inconsistency between Nikki’s statement to the court and her use of the letter “M” on the written form, inconsistent statements are not “deliberate, clear, and unequivocal” and cannot form the basis of judicial estoppel.  See Am. Savs. & Loan Ass’n v. Musick, 531 S.W.2d 581, 589 (Tex. 1976).  For this reason, in addition to the other reasons set forth in Nikki’s principal brief, the doctrine of judicial estoppel does not apply.  (See Appellant’s Br. at 43-44.)

VII. Longoria’s arguments about Dr. Cole’s affidavit are off base.

Longoria argues that Dr. Cole’s affidavit should be disregarded on procedural grounds.  Her arguments are misleading and contrary to Texas law, as shown by an examination of the versions of the affidavit that appear in the record.

• The first version of the affidavit was filed on May 16, 2011.  (6CR1608-1703.)
• In response to Longoria’s objection that the affidavit referred to medical records that were not attached, Nikki filed a second version on May 20, 2011 with the medical records attached.  (Supp.CR1968-2104.)
• In response to Longoria’s objection that the affidavit did not specifically recite that the facts set forth in the affidavit were “true,” Nikki obtained an order on May 24, 2011 stating that “[Nikki], out of an abundance of caution, has revised the timely filed affidavit of Collier Cole, Ph.D. to state that ‘the facts and opinions stated in this affidavit are within my personal knowledge, are true and correct, . . .’ at the onset of his affidavit.”  (7CR1852-58.)  Attached to the order is an affidavit in which Dr. Cole recites that the facts “are true and correct.”  (7CR1852-58.)

On appeal, Longoria makes two incorrect arguments about the affidavits.  Longoria argues that the affidavit filed on May 20, 2011 is insufficient because it does not specifically recite that the facts set forth in the affidavit are “true.”  (Longoria Br. at 36-38.)  That argument is directly contrary to authority from this Court, which has held that “where the affidavit does not specifically recite that the facts set forth there are true, but does set out that it is based on personal knowledge and is subscribed to and sworn before a notary public, it is not defective if, when considered in its entirety, its obvious effect is that the affiant is representing that the facts stated therein are true and correct.”  Fed’l Fin. Co. v. Delgado, 1 S.W.3d 181, 184 (Tex. App.—Corpus Christi 1999, no pet.).  Dr. Cole’s affidavit recites that “facts and opinions stated in this affidavit are within my personal knowledge,” and it is subscribed to and sworn before a notary public.  (6CR1608-1703.)  It is obvious that Dr. Cole was representing that the facts were true.  The affidavit was not defective.

Longoria also argues that the version of the affidavit attached to the trial court’s May 24, 2011 order is insufficient because the medical records are not attached.  But in making that argument, Longoria ignores the terms of the trial court’s order, which explains that Nikki “revised the [May 20, 2011] timely filed affidavit of Collier Cole, Ph.D. to state that ‘the facts and opinions stated in this affidavit are within my personal knowledge, are true and correct, . . .’ at the onset of his affidavit.”  (7CR1852 (emphasis added).)  The affidavit filed on May 20, 2011 attaches the medical records, and when read as “revised” in light of the trial court’s order, it also recites that the facts are “true and correct.”  (7CR1852; Supp.CR1968-2104.)[3]  The affidavit is sufficient.

VIII. Nikki filed a traditional motion for summary judgment, not a no-evidence motion.

Longoria persists in treating Nikki’s summary judgment motion as a no-evidence motion, even though in substance it was unmistakably a traditional motion, as Nikki noted in her brief.  (See Appellant’s Br. at 10 n.11.)  Longoria’s stubborn insistence on this point is contrary to this Court’s recent decision in which it held: “In determining whether a motion for summary judgment is brought on traditional grounds or no-evidence grounds, we consider the substance of the motion rather than categorizing the motion strictly by its form or title.”  Garcia v. City of Elsa, No. 13-10-00440-CV, 2012 WL 1484105, at *4 (Tex. App.—Corpus Christi Apr. 26, 2012, no pet.) (citing Texas Integrated Conveyor Sys. v. Innovative Conveyor Concepts, 300 S.W.3d 348, 375 (Tex. App.—Dallas 2009, pet. denied) and Rodgers v. Weatherspoon, 141 S.W.3d 342, 344 (Tex. App.—Dallas 2004, no pet.)).  Under these authorities, Nikki’s summary judgment motion is a traditional motion, not a no-evidence motion.

CONCLUSION AND PRAYER

The marriage of Thomas and Nikki was a valid, opposite-sex marriage because (1) the uncontroverted summary judgment evidence established that Nikki was female before and during her marriage to Thomas; (2) the Texas Family Code recognizes that an individual who has undergone a “sex change” is eligible to marry a person of the opposite sex; (3) the California judgment and birth certificate establish that Nikki is female and are entitled to full faith and credit in Texas; and (4) the United States and Texas Constitutions require that the marriage be recognized as valid.  Accordingly, Nikki respectfully requests that the Court reverse the summary judgment and render judgment recognizing her marriage as valid or remand for further proceedings.  Finally, Nikki requests all further relief to which she is entitled.

Respectfully submitted,

 

HAYNES AND BOONE, LLP

Kent Rutter

State Bar No. 00797364

Kenneth E. Broughton

State Bar No. 03087250

1221 McKinney Street, Suite 2100

Houston, Texas  77010-2007

Telephone: (713) 547-2000

Facsimile: (713) 547-2600

 

Alene Ross Levy
State Bar No. 12260550
Alene Levy Law Firm, P.L.L.C.
1005 Heights Blvd.
Houston, Texas  77008
Telephone: (713) 529-0048
Facsimile: (713) 529-2498

 

Phyllis Randolph Frye
State Bar No. 07496600
Darrell Steidley
State Bar No. 24013559
Frye & Associates, PLLC
2990 Richmond Avenue, Suite 400
Houston, Texas  77098
Telephone: (713) 227-1717
Facsimile: (713) 522-2610

 

– and –

 

Mitchell Katine
State Bar No. 11106600
John Nechman
State Bar No. 24010261
Katine & Nechman L.L.P.
1111 North Loop West, Suite 180
Houston, Texas  77008-1700
Telephone: (713) 808-1000
Facsimile: (713) 808-1107

Attorneys for Appellant,
Nikki Araguz

 

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