Boys Will Be Boys: Littleton v. Prange and In re Estate of Gardiner
Laura W. Morgan
On October 27, 1999, the Texas Court of Appeals issued
its decision in Littleton v. Prange, 9 S.W.3d 223
(Tex. Civ. App. 1999), cert. denied 531 U.S. 872
(2000). In this case, the court framed the issue thus:
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?
In this case, the plaintiff Christie Lee Littleton was
born Lee Cavazos, a male, in 1952. Confusion about sexual
identity began early, according to the plaintiff, and by
the time he was 17 years old, he was searching for a physician
who would perform a sex change operation. After years of
psychological testing, at 23 years of age, in 1975, Lee
Cavazos became Christie Lee Cavazos: he underwent psychological
and psychiatric treatment, he legally changed his name,
he began receiving hormone treatments, and he underwent
three surgical procedures which culminated complete sex
reassignment. The physicians who treated the plaintiff testified
that the plaintiff was diagnosed both psychologically and
psychiatrically as a genuine male to female transsexual,
and that Christie's condition was based on a combination
of neuro-biological, genetic, and neonatal environmental
factors. Christie was truly born a woman in a man's body;
after surgery, Christie was a woman in a womans body.
When Christie was 37 years old in 1989, she married John
Mark Littleton, and she lived with him as husband and wife
until Littletons death in 1996. They had normal sexual
relations during their marriage. After Littletons
death, Christie filed a medical malpractice suit under the
Texas Wrongful Death and Survival statute in her capacity
as his surviving spouse. The defendants filed a motion for
summary judgment, contending that Christie, a man, could
not be the surviving spouse of another man.
Citing Corbett v. Corbett, 2 All. E.R. 33 (P.1970),
an English case, the Texas court concluded that the
biological sexual constitution of an individual is fixed
at birth (at the latest), and cannot be changed, either
by the natural development of organs of the opposite sex,
or by medical or surgical means. Thus, because Christie
was born male, she was male for purposes of the marriage.
The marriage was thus void, and Christie could not pursue
a wrongful death action as Littletons surviving spouse.
The court also cited as support Anonymous v. Anonymous,
325 N.Y.S.2d 499 (N.Y. Sup. Ct. 1971), in which a male pre-operative
transsexual married another male. In Anonymous,
both parties to the marriage had a complete set of male
genitalia. The New York court held that there could be no
valid marriage between two males.
Realizing that Anonymous v. Anonymous is completely
distinguishable, the court cited In re Ladrach,
32 Ohio Misc. 2d 6, 513 N.E.2d 828 (Probate Court 1987).
In Ladrach, Elaine Ladrach brought a declaratory
judgment action to determine whether she, a post-operative
male to female transsexual, could marry a male. The Ohio
court held she could not, declaring that a persons
sex is determined at birth.
The court noted that there is contrary authority. In M.T.
v. J.T., 140 N.J. Super. 77, 355 A.2d 204 (1976), the
court upheld as valid a marriage between a transsexual wife
and her husband. The court stated that if the psychological
choice of a person is medically sound, and irreversible
sex reassignment surgery has been performed, then society
has no right to prohibit the transsexual from marrying.
There is no harm to any public policy. See generally
Mary Coombs, Sexual Dis-Orientation: Transgendered People
and Same-sex Marriages, 8 UCLA Womens L.J. 219
(1998). The court also noted that fifteen states permit
a post-operative change of sex designation on birth records.
The Texas court concluded that because Christie was born
a male, and still had male chromosomes, she was a male,
period. Psychology, surgery, and medical diagnosis notwithstanding,
Christie was not a woman who could marry a man. The court
concluded, There are some things we cannot will into
being. They just are. Thus, the marriage was void
because it was between two males.
It is hard to understand the antipathy of the court to
this marriage based on chromosomes. Christie, according
to her doctors, was psychologically a woman from birth;
she was physically a woman for 14 years before she met and
married her husband. They had normal husband/wife relations.
Why should her chromosomes determine the validity of this
There is a genetic condition in which a baby is born with
both an X and Y chromosome, but the babys sexual characteristics
are ambivalent. In these cases, the baby is given hormone
treatments from the time of birth and raised as a female.
Ostensibly, upon maturity, the person is a female, and has
always been treated as a female. Would this person be denied
the right to marry? What of the persons who suffer from
a genetic condition whereby they have a Y and two X chromosomes?
Would they be denied the right to marry? Why should a court
involve itself with matters of genetics? If it looks like
a woman, acts like a woman, and has sex like a woman, it
should be a woman.
The Kansas Supreme Court wrested with these questions,
but reached the same result as the Texas court in In
re Estate of Gardiner, No. 85,030 (Kansas Supreme
Court, March 15, 2002). In this case, JNoel Ball and
Marshall Gardiner were married in Kansas in September 1998.
JNoel was a post-operative male to female transsexual,
and after her sex reassignment, her Wisconsin birth certificate
was amended to state that she was a female. Marshall was
aware of J&3146;Noels history prior to the marriage.
Marshall died intestate in August 1999. Marshalls
son Joe filed a petition for letters of administration,
alleging that JNoel had waived any rights to Marshalls
estate. JNoel filed an objection and asked that letters
of administration be issued to her. The court then appointed
a special administrator. Joe amended his petition, alleging
that he was the sole heir in that the marriage between JNoel
and Marshall was void since JNoel was born a man.
JNoel argued that she is a biological female and was
at the time of her marriage to Marshall.
The Court stated the issue as follows:
The sole issue for review is whether the district
court erroneously entered summary judgment in favor of Joe
on the ground that J'Noel's marriage to Marshall was void.
The Court reviewed the cases considered by the Littleton
court, and also reviewed a case decided subsequent to Littleton:
a decision of the Family Court of Australia, dated October
12, 2001, In re Kevin, FamCA 1074 (File No. SY8136
OF 1999, Family Court of Australia, at Sydney, 2001). In
that case, applicants, Kevin and Jennifer, sought a declaration
of the validity of their marriage. Kevin, f/d/a Kimberley,
was a female-to-male transsexual. His birth certificate
recorded his sex as female, but Kevin always
considered himself to be a male. Kevin met Jennifer in October
1996. He told her of his transsexual predicament.
They began living together in February 1997 and agreed to
In November 1977, Kevin had breast reduction surgery, and
in September 1998 he had a total hysterectomy with bilateral
oophorectomy. Slip op. at 8. Kevin elected not to undergo
further surgery involving construction of a penis or testes.
Due to hormone treatments, Kevins voice deepened and
he grew coarse hair growth on his face, chest, legs, and
stomach. In October 1998, Kevin was issued a new birth certificate
showing his sex as male, and he and Jennifer were married.
Two psychiatrists examined Kevin. Both concluded that Kevin
is and always has been psychologically male. One wrote that
he believed Kevins brain sex or mental sex is male,
and then stated his agreement with the opinion of Milton
Diamond, an American professor of anatomy and reproductive
biology, that further research will confirm the present
evidence that brain sex or mental sex is a reality which
would explain the persistence of a gender identity in the
face of or contrary to external influences. Slip op.
The Kansas Supreme Court contrasted Corbett and
Littleton on the one hand, and M.T. and
In re Kevin on the other as a difference in how
one views gender as a matter of law or as a matter
The record in the Australian case was richly and
comprehensively developed, in sharp contrast with the record
in the case before us. In In re Kevin, the court
had the benefit of the testimony of many people who were
colleagues, friends, and family of Jennifer and Kevin, as
well as volumes of medical and scientific evidence. Thus,
the essential difference between the line of cases, including
Corbett and Littleton, that would invalidate
the Gardiner marriage and the line of cases, including M.T.
and In re Kevin, that would validate it is that
the former treats a persons sex as a matter of law
and the latter treats a persons sex as a matter of
fact. In Littleton, the thread running throughout
the majoritys opinion was that a persons gender
was immutably fixed by our Creator at birth. 9 S.W.3d at
224. Summing up its view of Christies mission to be
accepted as a male, the court stated: There are some
things we cannot will into being. They just are. 9
S.W.3d at 231. Corbett was approvingly described
by the Texas majority as holding, once a man, always
a man. 9 S.W.3d at 227. The Texas court decided that
there was nothing for a jury to decide, and [t]here
are no significant facts that need to be decided.
9 S.W.3d at 230. Because Christie was created and
born a male, the Texas court h[e]ld, as a matter
of law, that Christie Littleton is a male.... 9 S.W.3d
The Kansas Court noted that the Kansas Court of Appeals
had rejected the notion of gender at birth because,
as noted above, there are a number of factors that make
sexual identification at birth less than certain. In chromosomal
sex disorders, the chromosomal pattern does not fit into
the XX and XY binary system, such as Klinefelter Syndrome,
which affects approximately 1 in 500 to 1,000 babies identified
at birth as males based on the appearance of external genitalia,
in which multiple X chromosomes may become manifest in puberty
with breast development. Turner Syndrome affects babies
identified at birth as females, who in fact typically have
only one X chromosome. As a result, a person with Turner
Syndrome will have female appearing genitalia but may have
unformed and nonfunctioning gonads.
Nevertheless, the Kansas Supreme Court stated that the
plain, ordinary meaning of persons of the opposite
sex contemplates a biological man and a biological
woman and not persons who are experiencing gender dysphoria.
A male-to-female post-operative transsexual does not fit
the definition of a female. The male organs have been removed,
but the ability to produce ova and bear offspring does not
and never did exist. There is no womb, cervix, or ovaries,
nor is there any change in his chromosomes. As the Littleton
court noted, the transsexual still inhabits . . .
a male body in all aspects other than what the physicians
have supplied. 9 S.W.3d at 231. Thus, JNoel
does not fit the common meaning of female.
Thus, the Kansas Supreme Court ultimately agreed with Littleton,
that unless you were born a female, you arent a female,
For further reading, and possibly the best reference to
Aerosmith in a law review article, see Kevin Tallant, My
Dude Looks Like a Lady: The Constitutional Void
of Transsexual Marriage, 36 Georgia Law Review 635