TransGriot Note: E-mail this one to HRC and Karin Quimby for me will you?
After a protracted legal battle that went all the way to the European Court of Human Rights in Strasbourg, France and even became an issue in the recent Maltese election, Joanne Cassar's long fight to
have her marriage rights recognized is victorious.
The April 2 news that the Maltese government will amend the Marriage Act so that trans people can marry the partners of their choice according to their acquired gender was greeted with jubilation and relief.
But none were happier than Joanne Cassar, who has been battling the Maltese government in court for seven years to be able to marry her male partner.
Cassar won and
lost cases in the Maltese court system and eventually took her marriage rights legal wrangle
to the ECHR.
She gleefully expressed her satisfaction on social media upon hearing the news that her long battle is finally over.
Cassar even became an issue in the March 9 Maltese election. In a public rally March 2 before Maltese voters went to the polls then Prime Minister Lawrence Gonzi announced in response to an audience question that his ruling Nationalist Party would if re-elected introduce gender recognition legislation in the next parliament. Gonzi also claimed that the reason why the Maltese parliament never discussed the transgender recognition private member's bill tabled by then Opposition MP Evarist Bartolo was lack of time.
Never mind the fact that the Gonzi government had been fighting Cassar tooth and nail in the courts and she called him on it.
Cassar accused the Gonzi administration of exploiting her case for political advantage. She pointed out the hypocrisy of the same government now promising to enact these trans marriage rights fighting to keep the legal obstacles that stood in the way of her ability to get married.
She noted the Gonzi government had even filed written submissions against her right to marry in her ECHR case in Strasbourg.
Former Alternattiva Demokratika chairman Michael Briguglio then called upon the Gonzi government to stop officially opposing Joanne Cassar in her bid to marry her partner.
"Not only did the government fail to progress the legislation that was tabled through a private member's bill; but it actually fought Joanne Cassar tooth and nail all the way to the Constitutional Court to deny her the fundamental right to marry her male partner," Briguglio said. "This in spite of clear European Court of Human Rights case-law dating back to 2002 which Malta is obliged to respect."
You know how voters in any country hate hypocritical politicians who also get caught
misspeaking lying, and Gonzi's party paid dearly at the polls. The oppostion Labour Party rolled to a 39-26 landslide victory on Election Night making their leader Joseph Muscat the new Prime Minister. The Nationalists picked up four at large seats later, but the net loss of five seats ended their 15 years in power.
The Malta Gay Rights Movement's coordinator Gabi Calleja was also happy to hear that the Maltese government finally joined the 21st century and conformed to European law.
"I think it's about time that Joanne Cassar's ordeal was brought to an end, and that we finally conform to European law at least in so far as marriage is concerned."
The right of transgender persons to marry in Europe was firmly established in the 2002 precedent setting case
Christine Goodwin vs the United Kingdom in which the ECHR held that it found no justification for barring transsexuals from enjoying the right to marry under any circumstances.
Details on the legal amendment will reflect the principle that, by officially recognizing a person's reassigned gender identity through documentation (ID card or driver's license), the State also de facto commits itself to acknowledging and protecting all the rights and privileges associated with that particular gender identity including the right to marry a person of the opposite gender.
Once the legal amendments are in place, the ECHR case filed against Malta by Cassar will be withdrawn, and her legal expenses will be refunded by the State.
Congrats Joanne on winning your long marriage fight that you never should have had to go through in the first place and striking a blow for girls like us around the world.
![Photo: FOR IMMEDIATE RELEASE: 9-16-2013
TRANSGENDER ACTIVIST NIKKI ARAGUZ & ARTIST WILLIAM LOYD RECEIVE TEXAS MARRIAGE LICENSE AFTER INITIAL DENIAL BY HARRIS COUNTY CLERK AND MOVE FORWARD WITH WEDDING PLANS FOLLOWING APPEAL HEARING hearing at the 13th District Court Of Appeals at 901 Leopard Corpus Christi TX, on September 18, 2013.
FOR A TIME LINE OF EVENTS AND FACTS PLEASE READ THE FOLLOWING:
This very important case has been dragging on for a couple of years now and here’s the recap:
By: Cristan Williams
1.) It all started April, 19 2010 with this:
Back in 2010, an intersex person wanted to marry a woman and the El Paso clerk didn’t know if it was legal to issue a marriage license because this person had initially been sexed male, but had genital reconstructive surgery and had proof of her intersex status. So, the El Paso clerk wrote to the Texas Attorney General Greg Abbott, asking him to issue an opinion on whether El Paso should recognize the transitioned status of people who have “sex change surgery.” And yeah, I’m talking about that Abbott – the same guy who’s about to sue every-fucking-body to preserve his religious right to discriminate against queer people.
This is really important:
If Abbott issues the opinion that the government of the State of Texas won’t recognise the transitioned status of people who have a “sex change surgery” – intersex or trans, such a legal opinion may very well ruin the lives of a lot of Texans. Think about what such a position could mean for everything from State-issued ID to restroom access.
2.) Nikki Araguz’s husband, Thomas Araguz died while fighting a fire on July 3, 2010.
Nikki was quietly grieving the loss of her husband when Thomas’ ex-wife contacted the press to inform everyone that Nikki was trans and the day after Nikki’s husband was buried, asked the court to nullify the marriage demanding that any death benefit that might be due a public servant’s widow be put into a trust that the ex could control. The trust would allow the ex-wife to buy things like a new house, cars, furniture, electronics, vacations, etc.
Upon hearing of the case brought against Araguz, Gregg Abbott declared that he would issue his opinion concerning the transitioned status of people who have a ”sex change surgery” pending the outcome of the Nikki’s case. Please reread the previous sentence because it will impact your life in the coming years. Abbott is going to use the outcome of this case to inform his opinion.
The ex hired a couple of ethically challenged lawyers who immediately went on the offensive. They claimed that Thomas was clueless that Nikki was trans (BTW, Nikki and Thomas would come to my trans clinic together) and this played really well in the press. The ex’s lawyers also claimed that Nikki has stolen a truck that had belonged to Thomas after his death.
3.) The negative press explodes.
It comes out that Nikki had, in the past been arrested (but never convicted) of drug offenses. The Houston Chronicle writes an editorial noting that Nikki had stolen a truck and doesn’t mention the fact that the truck was Nikki’s, that the in-laws had, in fact taken it and that the court ordered the in-laws to return it to Nikki. People believed that Nikki bamboozled her husband into marrying her and that they lived together while she was pre-op and that Thomas never knew. Most people believed it was possible. When it came to light that Thomas knew, the narrative became that Nikki hated Thomas and they were inches away from being divorced:
Ex wife claims a divorce was just about to happen, press gobbles it up
When it turned out the the two had been writing each other love letters and had signed a lease agreement together shortly before Thomas’ death…
… the focus then – finally – turned to Texas law.
The ex’s lawyers claimed that ‘Texas law’ barred people like Nikki from getting married. They cited the Texas constitutional ban on gay marriage and a 1999 non-binding appellate ruling that asserted that at the moment of birth, the creator of the universe comes down from where he lives to bestow an immutable binary gender upon each Texas baby:
The deeper philosophical (and now legal) question is: 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? – Chief Justice Phil Hardberger, Littleton v Prange, 1999
However, it turned out that the Texas Constitution says absolutely nothing about people who have a ”sex change surgery.” Furthermore, it turns out that the Texas Legislature passed a law recognizing that people who have a “sex change” can, in fact, be issued a marriage license.
After it turned out that in 2009, the Texas Legislature passed a law which copied the wording from a Georgia “sex change” statute (and BTW, Georgia uses that statute to recognize post-transition sex), the argument then became that Nikki wasn’t postsurgical when they were married and thus, the marriage is null as per the 2009 Texas law and Nikki’s lawyers… agreed!
However, in Texas, one must hold yourself out to be married for only 24 hours to have a fully legal marriage (called an informal or common-law marriage). When Nikki was post-op, she and Thomas met all Texas requirements for a common-law marriage which carries all the same rights, privileges and responsibilities of a formal marriage.
The ex-wife’s lawyers then claimed that in the 2009 Texas Legislative law, the term “sex change” means that it’s just proof that no sex has changed:
Houston Chronicle, August 3, 2010 – Texas Constitution says nothing about “sex change”
… and that her sex should therefore be determined by Nikki’s original California birth certificate…. Which is here:
Original - NOT AMENDED – Birth Certificate of Nikki Araguz
Unfortunately for the ex-wife, California views the change of gender of a transsexual or intersex person as a clerical error – absolutely no different than if Nikki’s mother’s name or place of birth been misspelled. There is no amended birth certificate. The State of California asserts that Nikki was female on the original birth certificate.
This is a completely different process than what Texas has in place. In Texas, trans and intersex people can have an amended birth certificate. This means that there are two certificates: the original which remains on file and carries legal status as well as the new amended certificate.
So, through some – as of yet, undisclosed method – the ex-wife who worked in Nikki’s medical clinic somehow got a copy of the voided California birth certificate from Nikki’s medical records and submitted it to the court.
4.) May 26, 2011 – The Wharton Court
The long and short of it is that the small-town Republican judge pretended that the badly photocopied version of Nikki’s voided birth certificate – a copy that the State of California does not recognize – has the same legal standing as an original Texas birth certificate and that the original California birth certificate should be viewed as if it were an amended Texas birth certificate. The judge issued a one-page judgement and refused to acknowledge or respond to any legal argument made by Nikki’s legal team.
5.) July 6, 2011 – The Wharton Court II
A motion was made to void Judge Clapp’s May 26th ruling. Neither the judge nor the ex-wife’s lawyers addressed the affirmative arguments made by Nikki Araguz which is a violation of Texas law. When this was brought to the judge’s attention, he called a recess because he never even bothered to read the motion Nikki’s lawyers had submitted. Judge Clapp then came back to court and asserted that it didn’t matter that he didn’t follow Texas procedural law when he made his verdict because he would have arrived at the same decision anyway. Furthermore, because he knew that no matter what, he would still arrive at the same decision, Judge Clapp said having another trial that comports with Texas law would just be a waste of his time.
6.) September 13, 2013 – Nikki Attempts to Get a Marriage License, Harris County, Texas
During the last year, Nikki met a man, the two of them fell in love and a few months ago, her boyfriend asked Nikki to marry him by having a plane spell out, “MARRY ME NIKKI ARAGUZ I LOVE U” in the sky:
She said yes.
Last Friday, Nikki and her fiancé went to the Harris County Clerk’s office to get a marriage license. Remember, Texas Family Code § 2.005(b)(8) states that a marriage license can be issued for a valid marriage if someone shows proof of a “sex change.”
She was denied a marriage license.
Harris County Clerk Stan Stanart, after conferring with the Harris County Attorney, denied her marriage license application citing the Texas Constitution – which, in fact, says nothing about people who have a “sex change.”
Trans lawyer and writer for the TransAdvocate.com, Katrina Rose made the following points about the fallacious reasoning behind the actions of the Harris County clerk:
1.) There is nothing in Texas statutory law that says the original birth certificate prevails.
2.) The 1999 court decision which purports to say that (a) was never binding precedent outside of the San Antonio appellate district but most importantly (b) was superseded by the 2009 ‘proof of sex change’ statute (whose language was copied from a Georgia statute, and Georgia *does* recognize post-transition sex, so that language damn well does refer to post-transition sex, not birth sex.)
3.) The 2005 [Texas] constitutional amendment defines “marriage,” not “male” and “female.”
7.) September 18, 2013 – The 13th District Court of Appeals, Corpus Christi, Texas
Nikki’s lawyers filed an appeal (read appeal here) to the mostly Democratic 3-panel court of appeals. This coming Wednesday, the court will hear the arguments.
________________________________________
Judge Phyllis Frye and I will be traveling to the court together and I hope to have an update on this case for you this Wednesday afternoon.
If Nikki were to lose (which I don’t think is likely), she will appeal to the full 5-panel court of appeals. If the the ex-wife’s side loses, she can also appeal the 5-panel court. Either way, I think the full 5-judge panel will side with Nikki and the ex will appeal to the Texas Supreme Court. The Texas Supreme Court is led by an anti-gay advocate and will rule against her. After that is the Supreme Court… and I think that’s where this case will eventually land.
Should this go to the US Supreme Court (which is likely, IMHO) the implications of this case will affect each trans person in the US.
This is an important case that will, at the very least, define the way trans and intersex people are able to function as citizens in Texas. More probable, this case will define the validity of the transitioned status of trans and intersex people throughout the US.
Oh, and just so you know, the ex’s attorney, Ed Burwell was banned from practicing law in the state of Texas for ethical violations.
Recommended Sites
• Historical Trans Timeline An easy review of trans history on a FaceBook-like timeline.
• Rebecca's Army A trans supportive motorcycle group.
Trans Blogs
• Monica Roberts News, opinions, commentary, history and a little creative writing from a proud African-American transwoman about the world around her.
• The TransAdvocate TA is a place for grass roots trans advocates to comment on the issues currently affecting the trans community. In short, TA represents the cutting edge of the trans agenda 2.0!
• Women Born Transsexual Suzan Cooke’s blog for people who think transsexualism is innate rather than a gender identity disorder.
Trans Research
• A Gender Variance Who's Who Essays on trans, intersex, cis and other persons and topics from a trans perspective.
• Cristan's Trans Research Blog My place to keep and update my research into trans language, culture and issues.
• Take the Trans “Sense of Community” Survey! To what degree do trans folk experience a “sense of community” with other trans folk?](https://scontent-a-dfw.xx.fbcdn.net/hphotos-frc3/p480x480/970462_670798149600072_715121125_n.jpg)
Interestingly enough had Ms W lived in mainland China, she would have been able to get married. China's marriage were changed and clarified in 2003 to allow transpeople to get married to their opposite gender partners. Hong Kong as an autonomous Special Administrative Region is still under British law.
But as to the comment that marriage isn't a transgender issue, my response is you're kidding me, right? 
