By Trudy Ring
Originally published on Advocate.com January 09 2012 5:00 AM ET
When Nikki and Thomas Araguz were married in Texas in 2008, she had been married and divorced once before, and she had legal documentation identifying herself as a woman. Although Nikki, born biologically male, didn't have her gender transition surgery until a few months after the ceremony, she had no reason to think their marriage wasn't legal. In 2010, Thomas, a firefighter, died while battling a blaze. When Nikki tried to claim her share of his death benefits, a judge ruled their marriage invalid. Though laws governing the marriage of trans men and women who've undergone gender-reassignment surgery vary from state to state, the ruling, now on appeal, is a rare instance of a transgender person's marriage being voided.
"In the vast majority of cases [involving marriages of transgender people], nobody has any problem," says Shannon Minter, legal director for the National Center for Lesbian Rights, who has handled many marriage-related cases. "Nobody even questions the validity of the marriage. Now there have been a handful of cases in very conservative states that have come out badly."
The reason? "Courts in these states have been so homophobic," says Minter. "They don't want to even come close to recognizing a same-sex marriage."
Cases that have ended badly include that of Christie Littleton in Texas, where an appeals court ruled in 1999 that she could not bring a wrongful death suit after her husband, Jonathon, died; even though she had undergone gender-reassignment surgery, the court deemed Littleton male and her marriage invalid. In Kansas in 2002 came the only such ruling at a state supreme court level, in which J'Noel Gardiner, another transgender woman who had been widowed, was denied inheritance rights because the court did not recognize her marriage.
Several years ago, Minter represented Floridian Michael Kantaras, a transgender man who sought custody of his children when his marriage ended. The trial court ruled that Kantaras was male and his marriage valid, and awarded him custody, but the verdict was reversed on appeal. However, the Dr. Phil show then paid for mediation for Kantaras and his ex-wife, resulting in shared custody. "So that was good," Minter says.
There was encouraging news last year in Texas, one of the last states to allow proof of gender reassignment to get a marriage license. A Republican-backed bill that decreed that, for the purpose of marriage, gender is assigned at birth and cannot be changed even after gender-reassignment surgery, died in the legislature. And in November a Dallas County judge refused to invalidate trans man James Allan Scott's marriage to Rebecca Robertson, allowing the dissolution of their marriage to proceed as a divorce and giving Scott a chance at a share of the couple's property, says his lawyer, Eric Gormly. Though Scott had transitioned before their marriage, Robertson sought to nullify the union on grounds that he was born female.
Nationwide legal recognition of all marriages, regardless of the parties' gender, "would certainly solve the problem for everyone, but I don't want to wait for that," Minter says. For transgender people involved in disputes, Minter advises settling out of court if possible, but adds, "If you present the case in the right way, you have a good chance of winning." Good representation is key, he says: "Reach out to us or another LGBT legal group and we will help."
Araguz has ample representation — 17 lawyers, she says — and pledges to take her case to the U.S. Supreme Court if necessary. "I've always been in favor of love," she says, but she admits, "I didn't become an advocate for marriage equality until my rights were taken away from me." Now she says, "Love knows no gender."