April 2002

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 woman’s body.

When Christie was 37 years old in 1989, she married John Mark Littleton, and she lived with him as husband and wife until Littleton’s death in 1996. They had normal sexual relations during their marriage. After Littleton’s 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 Littleton’s 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 person’s 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 Women’s 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 marriage?

There is a genetic condition in which a baby is born with both an X and Y chromosome, but the baby’s 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, J’Noel Ball and Marshall Gardiner were married in Kansas in September 1998. J’Noel 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;Noel’s history prior to the marriage.

Marshall died intestate in August 1999. Marshall’s son Joe filed a petition for letters of administration, alleging that J’Noel had waived any rights to Marshall’s estate. J’Noel 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 J’Noel and Marshall was void since J’Noel was born a man. J’Noel 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 marry.

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, Kevin’s 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 Kevin’s 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. at 11.

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 of fact:

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 person’s sex as a matter of law and the latter treats a person’s sex as a matter of fact. In Littleton, the thread running throughout the majority’s opinion was that a person’s gender was immutably fixed by our Creator at birth. 9 S.W.3d at 224. Summing up its view of Christie’s 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 at 231.

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, “J’Noel 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 aren’t a female, ever.

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 (Winter 2002).