Betsy
03-02-04, 11:37 PM
Intersex and/or transperson? The Lambda Legal person quoted doesn't seem to get it.
Judge orders genetic testing in divorce case
03/02/2004
By PAM EASTON / Associated Press
A person born as a man but now legally a woman was ordered Tuesday to undergo genetic testing before moving forward with an attempt to void a marriage with another woman.
Linda Gail Carter, born James Howard Murphy, wants a union with Constance D. Gonzales voided after the pair were married by a minister in Las Vegas in October 1998. Carter had her gender legally declared female more than four months before the wedding, and has a Texas driver's license that identifies her as female.
Gonzales, who says she lived in Houston with Carter until March 2003, filed for divorce, which if granted would recognize the marriage. Carter, who pulled her hair back at the nape of her neck and wore a suit coat to court Tuesday, claims the marriage should not be recognized because both are female and Texas does not recognize same-sex unions.
A Texas appeals panel ruled in 1999 that a person's sex is determined by chromosomes.
State District Judge Lisa Ann Millard gave Carter until March 22 to undergo chromosomal testing first ordered last year. Carter failed to appear for that testing in November, according to court documents.
"Although claiming to be female as the result of a judicial proceeding, (Linda Gail Carter) is 6-foot-4, weighs 275 pounds and purportedly has male genitalia," Gonzales' attorney, S.C. Childress, argued in a motion. "It is the contention of Constance D. Gonzales Carter that Linda Gail Carter, also known as James Howard Murphy, is male and that their marriage is therefore valid."
Carter's attorney, Elsie Martin-Simon, argued there is no need for the chromosomal testing because a 1998 judgment legally changed Carter's name and gender designation. She said the testing violates her client's privacy and height has nothing to do with a person's gender, pointing to a number of female professional basketball players.
"Surely, it cannot be contended that these famous 'female athletes' are not 'female,'" she wrote.
Jerry Simoneaux, president of the Stonewall Law Association of Greater Houston, said getting a divorce, as opposed to having the union voided, would likely entitle Gonzales to more of the property the couple is disputing over. The association focuses on legal issues affecting gay and transgendered people.
"Constance Gonzales and I never lived together as spouses, never held ourselves out as spouses in the state of Texas and never agreed to be 'purportedly married' prior to the purported marriage ceremony in Las Vegas, Nevada on Oct. 31, 1998," Carter said in a sworn affidavit.
Martin-Simon declined to comment about the case to The Associated Press after Tuesday's hearing, citing a gag order in the case. Childress did not return a phone message left by The AP.
Richard Carlson, a law professor at South Texas College of Law, said the law is unsettled in Texas about whether a person can change gender.
Carlson said if chromosomal testing determines Carter is a male, the appropriate remedy would be to grant a divorce.
Meanwhile, Simoneaux said the chromosomal test could show Carter is an intersexed person with both male and female characteristics and possibly force the court to determine whether an intersex person can marry people of both sexes or no one at all.
"We really don't know how to treat people where two people are married and one person is transgendered," he said. "To most people it is going to be a same-sex marriage, but to the state of Texas they are only concerned with chromosomes and therefore it is an opposite sex marriage."
Judge orders genetic testing in divorce case
03/02/2004
By PAM EASTON / Associated Press
A person born as a man but now legally a woman was ordered Tuesday to undergo genetic testing before moving forward with an attempt to void a marriage with another woman.
Linda Gail Carter, born James Howard Murphy, wants a union with Constance D. Gonzales voided after the pair were married by a minister in Las Vegas in October 1998. Carter had her gender legally declared female more than four months before the wedding, and has a Texas driver's license that identifies her as female.
Gonzales, who says she lived in Houston with Carter until March 2003, filed for divorce, which if granted would recognize the marriage. Carter, who pulled her hair back at the nape of her neck and wore a suit coat to court Tuesday, claims the marriage should not be recognized because both are female and Texas does not recognize same-sex unions.
A Texas appeals panel ruled in 1999 that a person's sex is determined by chromosomes.
State District Judge Lisa Ann Millard gave Carter until March 22 to undergo chromosomal testing first ordered last year. Carter failed to appear for that testing in November, according to court documents.
"Although claiming to be female as the result of a judicial proceeding, (Linda Gail Carter) is 6-foot-4, weighs 275 pounds and purportedly has male genitalia," Gonzales' attorney, S.C. Childress, argued in a motion. "It is the contention of Constance D. Gonzales Carter that Linda Gail Carter, also known as James Howard Murphy, is male and that their marriage is therefore valid."
Carter's attorney, Elsie Martin-Simon, argued there is no need for the chromosomal testing because a 1998 judgment legally changed Carter's name and gender designation. She said the testing violates her client's privacy and height has nothing to do with a person's gender, pointing to a number of female professional basketball players.
"Surely, it cannot be contended that these famous 'female athletes' are not 'female,'" she wrote.
Jerry Simoneaux, president of the Stonewall Law Association of Greater Houston, said getting a divorce, as opposed to having the union voided, would likely entitle Gonzales to more of the property the couple is disputing over. The association focuses on legal issues affecting gay and transgendered people.
"Constance Gonzales and I never lived together as spouses, never held ourselves out as spouses in the state of Texas and never agreed to be 'purportedly married' prior to the purported marriage ceremony in Las Vegas, Nevada on Oct. 31, 1998," Carter said in a sworn affidavit.
Martin-Simon declined to comment about the case to The Associated Press after Tuesday's hearing, citing a gag order in the case. Childress did not return a phone message left by The AP.
Richard Carlson, a law professor at South Texas College of Law, said the law is unsettled in Texas about whether a person can change gender.
Carlson said if chromosomal testing determines Carter is a male, the appropriate remedy would be to grant a divorce.
Meanwhile, Simoneaux said the chromosomal test could show Carter is an intersexed person with both male and female characteristics and possibly force the court to determine whether an intersex person can marry people of both sexes or no one at all.
"We really don't know how to treat people where two people are married and one person is transgendered," he said. "To most people it is going to be a same-sex marriage, but to the state of Texas they are only concerned with chromosomes and therefore it is an opposite sex marriage."