Marriage rights at issue in Senate bill

By Daniel C. Houston

A bill that would remove only three words from the Texas Family Code could have significant implications for relationships in which at least one partner has gone through a sex change.

The bill, S.B. 723, authored by Republican Sen. Tommy Williams, who could not be reached for comment, would strike language from the statute allowing transgender individuals to present documentation of a sex change as proof of identity to receive a marriage license.

Without this language, the law could effectively default to a 1999 Texas appellate court decision that concluded people are legally considered to be the gender they were born with, making marriages between two people born with the same gender invalid under Texas law, regardless of whether either partner underwent reconstructive surgery.

The bill would only affect couples applying for a marriage license after Sept. 1, the date this provision would go into effect. All marriage agreements entered into before then would be “governed by the law in effect immediately before that date,” according to the bill as filed in the Texas Legislature’s online database.

Chuck Smith, deputy executive director for LGBT advocacy organization Equality Texas, testified against S.B. 723 on behalf of his organization, and said he believes the bill’s author fails to recognize “the reality that people do change their sex.”

Smith said he believes it is a mistake to classify a person’s gender solely according to what he or she was at birth, and that being able to use an affidavit as proof of a sex change should be sufficient to apply for a marriage license.

“We believe that transgendered people that get married should be able to use the most recent documentation to reflect who they are,” Smith said. “Someone who’s transitioned is living their life as a gender other than the one in which they were born.”

In the 1999 appellate ruling, Littleton v. Prange, the court drew a distinction between what it considered to be a person’s actual gender and what that person perceives his or her own gender to be. People can find themselves in a situation in which their “sexual self-identity is in conflict with their biological and anatomical sex,” according to the court’s majority opinion.

It’s questionable whether the bill would even fully accomplish what its author intends, Smith said. He also said the language could still allow for transgender individuals to obtain a marriage license using a driver’s license or other documentation that reflects their gender after reconstructive surgery. Smith also said this bill would effectively open the door for two self-identifying females to obtain a marriage license, provided one of them was born male.

S.B. 723 failed to obtain the two-thirds majority necessary to bring it to the Senate floor for consideration ahead of schedule. As it stands, it could be weeks before it reaches a vote, but officials could not confirm a more specific date.