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Abbott declines to offer transgender marriage opinion

Remember this, from back in May?

The El Paso County attorney wants the state’s top lawyer to tell her whether she can issue a marriage certificate to a woman and a biological male who had a sex change operation to become a woman.

County Attorney Jo Anne Bernal, in a letter sent last month, asked Attorney General Greg Abbott if the Texas ban on gay marriage prevents her from giving a marriage license to Sabrina Hill, who was born Virgil Eugene Hill, underwent sex change surgery in 1991, and is now seeking to marry a woman.

In February of this year, Hill and another woman asked the El Paso County Clerk for a marriage license. As proof of identification, Hill offered a New York birth certificate identifying her as a male, a Washington State court order changing her name to Sabrina, and an Arizona driver’s license that identified her as a female.

In the end, Abbott demurred.

In a letter formally declining the opinion request, Abbott’s office said it would not issue an opinion because a case currently in court could clear up the question. A transgender woman in Wharton is fighting in court for benefits from her deceased husband’s estate. The family of Thomas Araguz, a Wharton firefighter, argues he was unaware that his wife was born a man. They want his marriage to Nikki Araguz voided, and they want all his assets to go to his two young sons. “It is the policy of this office to refrain from issuing an attorney general opinion on an issue that we know to be the subject of pending litigation,” wrote Nancy Fuller, chairwoman of the AG’s opinion committee. “If any of the legal issues in this opinion request remain unresolved at the conclusion of the lawsuit, you may submit a request to resolve those issues.”

Guess we’ll never know what he would have said. I just wonder if he considers himself lucky or unlucky for letting the court have first crack at it. And while I agree with the Statesman that this should ultimately be up to the Lege to fix, I can’t help but shudder a little at the thought. Still, it is what needs to be done.

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  1. Conundrummed says:

    I had to read this about 3 times to get it straight. This is such an interesting question.

    I suppose we can’t have it both ways. Either we think (legally) that you stay the sex you’re born with, despite surgical inteventions, or you don’t.

    If we think (again legally) that you CAN change your sex, then Ms. Hill cannot get married (since same-sex marriages are not allowed), but Nikki Araguz can (since she went from being male or intersexed – depending on which version you believe – to female).

    If we think you CANNOT change your sex, than Ms. Hill can get married (since we think she’s still a male) and Nikki Araguz cannot.

    Confusing…and I can’t wait to find out the answer.

  2. […] read the whole complicated story. We’ve discussed gay divorce, and we’ve discussed transgender marriage, both of which come with a fair amount of pending litigation, all of which I expect will […]