Texas Is Very Confused About Its Same-Sex Marriage Ban

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A Texas judge declared a marriage between a transgender woman and her firefighter husband invalid, yesterday. Nikki Araguz and Thomas Trevino Araguaz III, who died on the job last year, had been legally married for three years under the Texas Family Code, a law updated in 2009 to allow people who have undergone court-recognized sex or name changes to obtain marriage licenses. A 1999 appeals court ruling, however stipulates that despite the existence of a reissued birth certificate, for the purposes of marriage, your gender at birth is all that matters in Texas. Gender is "fixed at birth by the Creator," the decision reads. Of yesterday's ruling, Houston civil rights advocate Noel Freeman said, "The transgender community jumps through a lot of legal hoops --records of sex changes, amended [and legally binding] birth certificates--to try to live the same life that everybody else gets to live. This is a very frustrating setback."

State representative Lois Kolkhorst, sponsor of the 2009 law, had no idea her bill would effectively legalize a form of same-sex marriage in Texas. "All of that is very unfortunate," she told the Texas Tribune, adding that the legislature should "get that clarified." However, contradictory laws around transgender rights and same-sex marriage are hardly a new issue in Texas or elsewhere in the United States. In the five years after the "fixed at birth" ruling in Texas at least two couples married legally, according to Slate. The Kansas Supreme Court also faced a similar case in 2007 when the step-son of a transgender woman challenged her right to inherit the $2.5 million estate of her late husband. The court ruled in favor of the step-son and argued that the transgender woman bore no spousal rights as their once-legally recognized marriage was, in retrospect, never actually legal. Contrarily, a California judge ruled the opposite in 1997 when he refused to invalidate the marriage between a transgender male and his wife.

It's somewhat ironic how Texas legislatures cornered themselves into a progressive policy. Especially given the timing. A University of Texas/Texas Tribune poll out yesterday showed a strong majority of the state's residents are in favor of allowing either gay marriage or civil unions. This finding comes on the heels of a Gallup poll corroborated what many others had before: the majority of Americans also support "marriages between same-sex couples." Activists, like the transgender woman picture above, are also actively fighting for equal rights in the face of discrimination in states like Illinois, where the state's complicated process to legally change genders is causing grief. Then again, the irony was not lost last year when Texas appeals court ruled that same-sex couples could not legally divorce, a move that one blogger likened to forcing gay marriage.

The sad truth of yesterday's ruling suggests more than a very confused Texas state legislature. The Araguaz case Texas, like the case in Kansas, boils down to money. The late husbands' family and ex-wife had argued that the $600,000 in death benefits should go to his sons rather Nikki Araguaz, who was never really his wife, they said. After effectively overlooking the contradiction for two years--or not noticing or whatever--the Texas court turned its attention to the issue over relatives hungry for a big check. It's a little disheartening in any case to see dollars at the crux of a much bigger civil rights struggle. 

This article is from the archive of our partner The Wire.