Genetics vs. love – same sex marriage
Mubarak Dahir
When one partner in a couple is transgendered, the courts say DNA counts more than a marriage certificate
A wedding-day photograph of Christie Lee and Jonathan Littleton shows the couple standing with linked arms, wineglasses raised to their mouths in a toast. The scene, snapped in an unguarded moment, captures them with their eyes closed, their lips parted in smiles. They are the very picture of newlywed bliss.
However, Texas courts have repeatedly negated that day in Christie Lee Littleton’s life and the 6 1/2 years of marriage that followed. In March the Texas supreme court refused to hear Littleton’s appeal of a ruling that declared the Kentucky marriage invalid in Texas on the grounds that same-sex marriages are not recognized. The reason: Christie Littleton is a male-to-female transsexual.
“Male chromosomes do not change with either hormonal treatment or sex reassignment surgery,” wrote Chief Justice Phil Hardberger of the state’s Fourth Court of Appeals. “Biologically a postoperative female transsexual is still male.” Transgender activist Phyllis Frye, Littleton’s cocounsel, has petitioned the U.S. Supreme Court.
Littleton’s case is being wielded in Texas and elsewhere as a weapon to deny transsexuals the rights of matrimony and parenthood. The transsexual marriage disputes also have ethical implications for medical privacy and could have an impact on the national debate on same-sex marriage.
“Certainly the lesbian, gay, and bisexual communities have a crucial interest in the fight over the marriage issue,” says attorney Frye. “But beyond that, the courts are seeking to establish a test to the very complicated question `What is sex?’ If they impose a legal answer, the ruling will be as profound as Roe v. Wade [the Supreme Court ruling that legalized abortion]. We’re talking about philosophical questions of how we define ourselves and how much the state is allowed to interfere in a decision that is both medical and intensely personal.”
Born Lee Cavazos, Littleton completed sex reassignment surgery in 1979, having her birth certificate and driver’s license changed to reflect her new sex. Ten years later, in May 1989, she met Jonathan Littleton in a motel lobby in Kentucky; she had traveled to the state for bladder surgery after a car accident. She was 37; he was 28. By December the two fell in love.
“I cannot marry you because there’s a secret I have to tell you about myself,” she responded to his proposal.
“I see a woman, I met a woman, and I fell in love with a woman” was all he had to say when she told him. Two days later they exchanged vows in a friend’s home in Pikeville, Ky., his hometown. They moved back to Christie’s birthplace, San Antonio, where she opened a beauty salon and he was a high-rise–window washer.
An unusual series of injuries and blood clots prematurely ended Jonathan Littleton’s life on July 29, 1996. Convinced her husband’s death was the result of malpractice, Littleton brought a wrongful-death suit against his doctor. When the doctor’s lawyers discovered Littleton’s past, they moved to void her marriage. Without being recognized as the surviving spouse, Littleton had no grounds to sue.
In an area of precious little case law, other courts are looking to the Littleton case for direction. In January a Kansas court similarly ruled against transsexual J’Noel Gardiner, a finance professor at Park University in Missouri. “J’Noel Gardiner was born a male and remains a male for the purposes of marriage under Kansas law,” the judge declared. “The marriage between Marshall G. Gardiner and J’Noel Gardiner is void.”
J’Noel Gardiner was born Jay Ball, but after undergoing sex reassignment surgery in Wisconsin in 1994, she had her Wisconsin birth certificate changed to reflect that she was female. In September 1998 J’Noel married Kansas millionaire Marshall Gardiner, a former two-term conservative state representative and stockbroker who was a friend of Harry Truman. Marshall and J’Noel were united by a Kansas supreme court justice, also a close friend of Marshall Gardiner’s. Marshall was in his mid 80s; J’Noel, 40.
Eleven months later Marshall Gardiner died of a heart attack on a flight to Baltimore, leaving no will for his $2.5-million estate. His only son, Joe, a Web designer, contested J’Noel’s claim to half of everything.
“A friend indicated we should investigate her background, saying she was not what she appeared to be,” says David Watkins, Joe Gardiner’s lawyer. Watkins hired a private investigator who uncovered J’Noel’s history.
Joe Gardiner offered J’Noel an undisclosed settlement. She refused it and appealed the case. Both she and her lawyer, Sanford Krigel of Kansas City, Mo., declined comment.
Watkins says that in arguing against J’Noel Gardiner he presented the Littleton case as a legal precedent. “The decision the Kansas court rendered was the same as the Texas court: If you’re born a man, you stay a man. Just because you have an operation, that doesn’t control sex. DNA does.”
However, the court rulings may have unintended consequences for same-sex marriages. On September 6, Jessica Wicks and Robin Manhart Wicks, a lesbian couple, were issued a marriage license in San Antonio because Wicks is a male-to-female transsexual. Under the Texas court ruling, Wicks is still biologically a man and thus able to wed her partner. The couple planned to marry on September 16. “It appears that Texas and Kansas have just legalized same-sex marriage if one partner is transgender,” observes Riki Wilchins, executive director of the activist group GenderPAC.
Experts say the legal system still lags behind psychological and medical understanding.
“From the psychological perspective, these people are women and always have been,” says Walter Bockting, coordinator of the University of Minnesota Transgender Services. He says studies from the Netherlands, replicated in Singapore, indicate that one in 11,900 born male has a female gender identity and one in 30,400 individuals born female has a male gender identity, adding, “It’s been a long-standing practice to recognize postoperative transsexuals as members of the sex they identify with.”
Medical research from the Institute for Brain Research in the Netherlands indicates that a part of the brain essential to sexual behavior and development differs in transsexuals. Individuals who were born male but identify as female have a brain structure closely resembling that of women, and people born female who identify as male have a brain structure closer to that of men.
“This isn’t a liberal issue or a conservative issue,” insists Brian Derrick, an assistant professor of neurobiology at the University of Texas. “It’s a medical issue.” He says science is beginning to understand that “physical structures in the brain are better determinants of sex than the organs between your legs.”
If the Texas and Kansas rulings stand, the issue of who can get married where becomes a complex state-by-state patchwork. J’Noel Gardiner’s altered Wisconsin birth certificate suggests that she is legally a woman there, but in Kansas the courts say she is a man. “It’s a nightmare wondering if your legal status changes when you cross a state line,” comments Nancy Cain, executive director of the International Foundation for Gender Education.
Indeed, the validity of transsexual marriages varies from state to state. Unlike Texas and Kansas, some states have recognized the marriages of transsexuals. In 1997 an Orange County, Calif., judge refused to annul the marriage of Joshua Vecchione simply because he had had a sex change. During a divorce battle Vecchione’s wife tried to get the marriage annulled as a way to deny Vecchione custody of their daughter. Now 6 years old, the little girl was conceived by artificial insemination using sperm from Vecchione’s brother. The California judge ruled that Vecchione was legally male; he currently has joint custody.
“I had hoped my case would have a ripple effect,” says the 43-year-old San Clemente, Calif., jeweler, whose second wife is currently pregnant, again with sperm donated from Vecchione’s brother. “The worst thing in the world would have been to tear me from my child.”
A Texas father currently fears that’s exactly what the Littleton decision could mean to him. Austin attorney Glynn Turquand is representing a man whose two years of joint custody is being challenged by an ex-wife. The daughter was conceived through artificial insemination. Alleging that Turquand’s client (who is not named in court papers) is a female-to-male transsexual, the ex-wife is asking that their former marriage be voided and the father’s parental rights severed. Given the outcome of the Littleton case, building an argument on transsexual rights “would be an uphill battle my client can’t afford to lose,” says Turquand. Instead, he is “looking for a strong statement from the courts on fathers’ rights.”
Turquand refuses to reveal whether his client is transsexual. “The other side has asked for a chromosome test, and we’ve told them it’s none of their business.” In fact, state law prohibits genetic testing. Even Littleton never had a DNA test.
Despite the heartache of losing her husband and having her marriage denied by the state, Littleton says that “in an odd way this was a good thing for me. Before, I was never part of the GLBT community.” This year, for the first time, she marched in pride parades in San Antonio and Houston, and she has joined several gay, lesbian, bisexual, and transgender political organizations. “I’ve decided to join the fight for civil rights,” she says. “It’s the second big personal transition in my life.”
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Dahir has contributed to Time, The Industry Standard, and Redbook.
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