In re Estate of Araguz, 443 S.W.3d 233 (Tex. App.—Corpus Christi-Edinburg 2014, pet. denied).
Husband died intestate and his mother filed an action to determine heirship which would exclude Wife as an heir claiming that the marriage was void because the Texas Constitution prohibits same-sex marriage. Wife asserted that the marriage was valid because even though Wife was born with male sex organs, Wife had spent her life living as a female, had her name changed to a female name, and had gender reassignment surgery. The court granted a summary judgment that the marriage was void relying on Littleton v. Prange, 9 S.W.3d 223 (Tex. App.—San Antonio 1999, pet. denied), which held that gender is determined at birth and cannot be changed by surgical procedures.
The appellate court reversed. The court pointed to a post-Littleton amendment to Family Code § 2.005(b)(8) which permits the county clerk to rely on a court order certifying a sex change to issue a marriage license. Thus, the court held that “Texas law recognizes that an individual who has had a ‘sex change’ in eligible to marry a person of the opposite sex” and that Littleton was legislatively overruled. The court did not, however, determine that the marriage was valid but instead returned the case to the trial court because there is a genuine issue of material fact with respect to Wife’s gender.
Moral: A person’s legal gender may be altered by the appropriate surgery thus permitting two people who were the same gender at birth to marry each other as long as they are currently configured as members of different genders.