In a state that bans same-sex marriage, it would seem to be easy to know who can legally marry. Texas county clerks will tell you it is not.
A two-year-old state law says a court order recognizing a sex or name change is acceptable for marriage license applicants. But a 1999 Texas appeals court ruling stipulates that, at least for purposes of marriage, medical procedures cannot change a person’s gender — you are what you were at birth, period.
This legislative session, politicians have punted on clarifying the issue. And that means that despite the state’s constitutional prohibition of same-sex marriage, some clerks are issuing marriage licenses that, by some definitions, create gay unions. Other clerks are not sure what to do, waiting for lawmakers or the courts to clarify the matter.
“All of that is very unfortunate,” said state Rep. Lois Kolkhorst, R-Brenham, whose 2009 legislation is at the heart of the confusion. Kolkhorst said that at the time, she did not realize her bill would create an issue. “We just didn’t get that clarified and we should,” she said.
Under that law, court orders establishing a change in name or gender are among several documents that can be used for identification purposes in obtaining a marriage license. Other acceptable documents include military IDs, passports, divorce decrees, concealed handgun licenses — even temporary driving permits, among others. But the law does not tell county clerks which of those documents should take precedence in cases where the gender on a person’s birth certificate is different from the one on another document, like a judge’s order.
The El Paso County Clerk’s office faced this conundrum last year. Sabrina Hill was born with both female and male sex organs and identified as a male on her birth certificate. Later, she had gender reassignment procedures and a judge’s order recognized her as a female, as did her driver’s license. When Hill and her partner, Therese Bur, applied for a marriage license, the clerks did not know whether to issue one. Should they use Hill’s original birth certificate and issue a license to the couple? Or should they use the more recent court order and deny the license based on Texas’ constitutional same-sex marriage ban?
The clerk asked Attorney General Greg Abbott what to do, but Abbott declined to opine, deferring to a transgender case making its way through the courts.
In that case, a Wharton County judge ruled on Thursday that the marriage between Nikki Araguz, who was born male but became a female and later married a man, is invalid. Nikki Araguz was married to Thomas Araguz, a Wharton firefighter who died on duty. His family is fighting for his estate, arguing that Nikki Araguz should not receive his money because their marriage was never valid.
That ruling aligns with an appellate court decision that some county clerks, like Gerry Rickhoff in Bexar County, have relied on since 1999. In that case, a conservative court decided that a person’s original birth certificate defines their gender, regardless of subsequent medical procedures. Rickhoff said the court’s ruling is unambiguous, and he grants marriage licenses to couples like Hill and Bur. In fact, after the El Paso County clerk declined to give the couple a marriage license, they went to San Antonio and got one from Rickhoff. “You are what your creator made you,” he said.
Kolkhorst and Sen. Tommy Williams, R-The Woodlands, tried to clear up the issue this session. They filed legislation that would eliminate court orders recognizing a sex change from the list of acceptable documents for marriage license applicants. Kolkhorst said she does not have an opinion about whether transgender marriage should be legal — her goal was to end the confusion. “At what point does a man become a woman? I don’t know,” she said. “That’s kind of for our creator to decide, not me.”
But the legislation is not expected to pass this year. That leaves the El Paso County clerk and others still confused. “We wouldn’t be able to issue anything until we got legal direction,” said Carol Sagaribay, the El Paso County clerk’s chief deputy. “We would still be in same place.”