                                                                                    ACCEPTED
                                                                                14-15-00462-CV
                                                                FOURTEENTH COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           8/24/2015 6:03:08 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                  CAUSE NO. 14-15-00462-CV
                    ____________________
                                                               FILED IN
                 IN THE COURT OF APPEALS                14th COURT OF APPEALS
                                                           HOUSTON, TEXAS
      FOR THE FOURTEENTH SUPREME JUDICIAL               8/24/2015 6:03:08 PM
                                                       DISTRICT
                                                        CHRISTOPHER A. PRINE
                         AT HOUSTON                              Clerk

                    ____________________
                             IN RE:
                       AIDYN ROCHER
                          AN ADULT
                    ____________________
              Appealed from the 308th District Court
                     Of Harris County, Texas
                   Cause Number 2015-04730
                    ____________________
                       APPELLANT’S BRIEF
                      __________________



                                    TOM ABBATE
                                    SBOT# 24072501
                                    440 Louisiana St, Suite 200
                                    Houston, TX 77002
                                    Phone: (832) 687-6447
                                    Fax: (800) 501-3088
                                    tom@tomabbatelaw.com




ORAL ARGUMENT REQUESTED
             IDENTITIES OF PARTIES AND COUNSEL

APPELLANT:                       AIDYN ROCHER
                                 a/k/a ALEX WINSTON HUNTER

COUNSEL FOR APPELLANT:           TOM ABBATE
                                 SBOT# 24072501
                                 440 Louisiana St, Suite 200
                                 Houston, TX 77002
                                 (832) 687-6447


PRESIDING JUDGE:                 HON. JAMES LOMBARDINO
                                 308th DISTRICT COURT -8th floor
                                 201 Caroline Street
                                 Houston, TX 77002
                                 (713)274-4606




                             2
                                             TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .............................................................................. 2
TABLE OF AUTHORITIES .......................................................................................................... 4
STATEMENT OF THE CASE....................................................................................................... 5
STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 6
STATEMENT OF FACTS ............................................................................................................. 6
ARGUMENT AND AUTHORITIES ............................................................................................. 8
          ISSUE FOR REVIEW ....................................................................................................... 8
          The Trial Court’s refusal to grant Appellant’s petitioned gender change was a
          violation of the Due Process Clause of the 14th Amendment. Alternatively,
          Appellant was entitled to the requested relief in the interests of justice. ......................... 8
          The Law Regarding Texas Birth Certificate Amendments................................................. 8
          The Law Regarding Gender Changes Generally ................................................................ 9
          The Law Opined in Obergefell v. Hodges ........................................................................ 10
          Analysis............................................................................................................................. 11
CONCLUSION AND PRAYER .................................................................................................. 16
CERTIFICATE OF NON-SERVICE ........................................................................................... 16
CERTIFICATE OF COMPLIANCE ............................................................................................ 17




                                                                       3
                                         TABLE OF AUTHORITIES

Cases
Duncan v. Louisiana, 391 U.S. 145 (1968) .................................................................................. 10
Eisenstadt v. Baird, 405 U.S. 438 (1972) ..................................................................................... 10
Griswold v. Connecticut, 381 U.S. 479 (1965) ............................................................................. 10
In re Estate of Araguz, No. 13-11-00490-CV (Tex. App. 2014) .................................................... 9
Lawrence v. Texas, 539 U.S. 558 (2003) ...................................................................................... 11
Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999) ...................................................................... 9
Obergefell v. Hodges, 14-556 (2015) ............................................................................... 10, 11, 13
Poe v. Ullman, 367 U.S. 497 (1961) ............................................................................................. 10
Statutes
Tex. Fam. Code 2.005 ........................................................................................................... 7, 9, 11
Tex. Fam. Code 45.102 ............................................................................................................. 6, 13
Tex. Health & Safety Code § 191.028 ...................................................................................... 8, 12
Tex. Health & Safety Code § 192.011 ...................................................................................... 8, 12
Other Authorities
Form VS-170 .................................................................................................................................. 9
http://www.dshs.state.tx.us/vs/reqproc/amendment.shtm ............................................................... 9
http://www.dshs.state.tx.us/vs/reqproc/faq/amendment.shtm ........................................................ 9
https://dps.mn.gov/divisions/dvs/Pages/gender-change-policy.aspx ............................................ 12




                                                                       4
                          CAUSE NO. 14-15-00462-CV
                             ____________________
                          IN THE COURT OF APPEALS
          FOR THE FOURTEENTH SUPREME JUDICIAL DISTRICT
                                  AT HOUSTON
                             ____________________
                                       IN RE:
                                 AIDYN ROCHER
                                    AN ADULT
                             ____________________
                      Appealed from the 308th District Court
                              Of Harris County, Texas
                            Cause Number 2015-04730
                             ____________________
                                APPELLANT’S BRIEF
                               __________________


      NOW COMES, AIDYN ROCHER a/k/a ALEX WINSTON HUNTER,

(hereinafter “Appellant,”) and would respectfully show the following:

                       STATEMENT OF THE CASE

      This is an appeal from the Trial ORDER GRANTING CHANGE OF NAME

OF ADULT filed MAY 6, 2015. Appellant has not filed a motion for new trial or

any other original appellate proceeding in this cause.




                                          5
          STATEMENT REGARDING ORAL ARGUMENT

      Oral argument should be granted in this case.         The Appellant filed an

ORIGINAL PETITION FOR CHANGE OF NAME OF ADULT, requesting that

the trial court change both his name and gender identity. Although the trail court

granted the change of name, it refused to grant the change of gender identity. As this

appears to be an issue of first impression, oral argument would aid the Court in

clarifying the issue and determining the whether the trial court improperly denied

that portion of the requested relief.

                           STATEMENT OF FACTS

     Appellant his petition for name and gender change on January 28, 2015. In the

petition, Appellant laid out all of the requisite information for an adult name change

pursuant the Texas Family Code. Tex. Fam. Code 45.102. Of note, Appellant pointed

out that he had been born in Philadelphia in 1986, and had lived in two other states

prior to moving to Texas. Finally, Appellant requested that his name be changed

from Aidyn Rocher to Alexander Winston Hunter and that his gender be changed

from female to male.

     On March 30, 2015, Appellant approached the trial court to obtain a ruling.

However, this setting was reset due to the fact that DPS initially incorrectly entered

the Appellant’s social security number on the criminal history report. Further, the

trial court requested that counsel for Appellant bring case law and other authorities

                                          6
regarding gender changes in Texas as it was unsure whether it had the authority to

grant relief on that issue.

     On May 6, 2015, after DPS filed an amended criminal history report, the trial

court held a hearing on Appellant’s petition. (RR. – 5). The trial court stated that it

had reviewed the case law submitted prior to opening the record in the case. (RR. –

5). Appellant then presented the required evidence on the record and asked that the

trial court change his name and gender. (RR. – 5-8).

     However, the trial court stated that, although it was granting the change of

name, it refused to grant the gender change. (RR. – 8). Counsel then asked the court

to take judicial notice of section 2.005(b)(8) of the Texas Family Code. (RR. – 8);

Tex. Fam. Code 2.005. Counsel pointed out that, although Texas did not recognize

same-sex marriage at that time, section 2.005 laid out the various documents

necessary to prove one’s identity when applying for a marriage license. (RR. – 8).

Further, subsection (b)(8) provides that an applicant for a marriage license can

establish their age and identity via “an original or certified copy of a court order

relating to the applicant's name change or sex change.” Tex. Fam. Code 2.005.

Therefore, Texas law at least recognize that a person can legally change their gender.

(RR. – 8-9).

     To this the trial court responded, “I have signed the order and [will] let the

Court of Appeals decide that.” (RR. – 9).


                                            7
                    ARGUMENT AND AUTHORITIES
                               ISSUE FOR REVIEW

      The Trial Court’s refusal to grant Appellant’s petitioned
      gender change was a violation of the Due Process Clause of
      the 14th Amendment. Alternatively, Appellant was entitled to
      the requested relief in the interests of justice.

The Law Regarding Texas Birth Certificate Amendments

      Texas law provides that a person may file for an amended their birth certificate

in a form prescribed by the department. Tex. Health & Safety Code § 191.028.

Further, the department has 30 business days to notify the individual of whether the

amendment has been accepted for filing. Tex. Health & Safety Code § 191.028.

      Moreover, section 192.011(b) provides that, on the request of the person or

the person's legal representative, the state registrar, local registrar, or other person

who issues birth certificates shall issue a birth certificate that incorporates the

completed or corrected information instead of issuing a copy of the original or

supplementary certificate with an amending certificate attached. Tex. Health &

Safety Code § 192.011. Finally, the statute states that the department shall prescribe

the form for certificates issued under this section. Tex. Health & Safety Code §

192.011.

      According to the Texas Department of State Health Services website, Form

VS-170, has been designated as the form to amend a birth certificate.


                                           8
http://www.dshs.state.tx.us/vs/reqproc/amendment.shtm. On page two, it specifies

that to change sex on a birth certificate, the applicant will need certification by a

medical attendant or affidavit and one document (the form specifies the type of

documents, including a passport, considered acceptable evidence). Form VS-170.

All      applications      will      be       reviewed      by       a      specialist.

http://www.dshs.state.tx.us/vs/reqproc/faq/amendment.shtm.

The Law Regarding Gender Changes Generally

      In 1999, a state district court in Texas held that a transgender woman was

male as a matter of law, and that transgender people could not legally change their

sex assigned at birth under any circumstances. Littleton v. Prange, 9 S.W.3d 223,

225 (Tex. App. 1999). However, in 2009, the Texas legislature amended its Family

Code to include that an original or copy of an order stating an applicant’s name or

sex change counts as the proof required for a marriage license. Tex. Fam. Code §

2.005(b)(8). After this change, the Texas Court of Appeals, Thirteenth District,

Corpus Christi held that Nikki Araguz, a transgender woman, could indeed be legally

recognized as a woman in deciding whether her marriage to her late cisgender

husband was valid. See In re Estate of Araguz, No. 13-11-00490-CV, 2014 Tex.

App. LEXIS 1573 (Tex. App. 2014). Araguz and the amendment to the family code,

represent a clear trend in Texas law departing from the attitude in Littleton.




                                          9
The Law Opined in Obergefell v. Hodges

      Recently, the United States Supreme Court ruled that same-sex couples had a

constitutional right to marriage. Obergefell v. Hodges, 14-556 (2015) (Roberts, C.

J., Scalia, J., Thomas, J., and Alito, J., dissenting). Although this case is not directly

on point to the one at bar, the Court, in its wisdom, did provide that, under the “Due

Process Clause of the Fourteenth Amendment, no State shall ‘deprive any person of

life, liberty, or property, without due process of law.’” Obergefell, 14-556.

Moreover, the Court stated that while the “fundamental liberties protected by this

Clause include most of the rights enumerated in the Bill of Rights,” these liberties

additionally “extend to certain personal choices central to individual dignity and

autonomy, including intimate choices that define personal identity and beliefs.”

Obergefell, 14-556 (citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Duncan v.

Louisiana, 391 U.S. 145, 147-149 (1968); Griswold v. Connecticut, 381 U.S. 479,

484-486 (1965)).

      Furthermore, the Court opined that the “identification and protection of

fundamental rights is an enduring part of the judicial duty to interpret the

Constitution.” Obergefell, 14-556. Unfortunately, “[t]hat responsibility, however,

‘has not been reduced to any formula.’” Obergefell, 14-556 (quoting Poe v.

Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)). “Rather, it requires

courts to exercise reasoned judgment in identifying interests of the person so

                                           10
fundamental that the State must accord them its respect.” Ibid (emph. added). In the

exercise of that judgment, the courts are “guided by many of the same considerations

relevant to analysis of other constitutional provisions that set forth broad principles

rather than specific requirements.” Ibid. Further, “[h]istory and tradition guide and

discipline this inquiry but do not set its outer boundaries.” Obergefell, 14-556 (citing

Lawrence v. Texas, 539 U.S. 558, 572 (2003)). Finally, the Court stated that “[t]hat

method respects our history and learns from it without allowing the past alone to rule

the present.” Ibid.

Analysis

      Appellant was entitled to his requested gender change. Although Texas law

does not explicitly provide for gender marker changes by court order, it does allow

for, and recognize them as valid. As stated above, a person seeking a marriage

license can use a court order changing their gender marker as proof of identity and

gender in their application. Tex. Fam. Code 2.005. Although Texas did not recognize

same-sex marriage until the Supreme Court’s landmark decision, it has explicitly

allowed transgendered people to marry others since 2009, provided that the parties

were a different gender from each other when they applied for the license.

      Further, Texas allows for the gender marker to be changed on a person’s birth

certificate. As stated above, after filing out the form, providing the necessary

documentation, and being reviewed by a specialist, any person, even an adult, may

                                          11
change their gender marker on their Texas birth certificate. Therefore, it is beyond

dispute that Texas recognizes that an adult may change their gender based on their

preferences.

      However, Appellant cannot avail himself of the procedures for changing his

birth certificate because he was not born a Texan. Whether or not a person will be

allowed to change the name or gender on their birth certificate depends on the state

where they were born. Because Appellant was born in Philadelphia, Pennsylvania,

in order to change his birth certificate to reflect his new gender, he would be required

to file for it in accordance with the provisions of Pennsylvania law. Therefore, the

procedures outlined for changing the gender marker on a Texas birth certificate do

not apply to him. See Tex. Health & Safety Code § 191.028; 192.011.

      Instead, Appellant needs to change his driver’s license gender designation.

According to the DPS website, a person can change their gender marker on their

driver’s license by submitting a certified copy of a court order changing their gender

marker.          https://dps.mn.gov/divisions/dvs/Pages/gender-change-policy.aspx.

Although it also provides that a person desiring such a change may also submit

certification that the clinical procedure has been completed, much like those seeking

to amend their birth certificate, this should not be a be a bar to transgendered persons

seeking a court order.




                                          12
      In order to complete the transition from one gender to another, a court ordered

name change will almost always be required as the name they were given at birth

will likely pertain to only one gender. Any person seeking a gender change will

already be required to avail themselves of the procedure outlined in the family code

so that their name does not conflict with their gender in almost all instances. Tex.

Fam. Code 45.102. Why then should they be forced to go through two different

processes if they are only seeking to change their gender on their driver’s license?

      Obviously, Texas has recognized that its citizens have a liberty interest in their

identity long before the Supreme Court’s landmark decision made it clear.

Obergefell, 14-556. Were it otherwise, they would not have provided a vehicle for

Texas-born residents to change it on their birth certificate, or provided a statutory

vehicle for a name change. Finally, had they intended for all applicants seeking such

an amendment to submit certification that the clinical procedure had been

accomplished, they would not have allowed for court orders to satisfy the

documentation requirement.

      The only issue in question then is whether the Texas Legislature implicitly

forbids people from changing their gender through the orders of a Texas court.

Although they have not laid out an explicit procedure for doing so similar to a name

change, and have not issued a statute or constitutional amendment forbidding such,

they have enacted the vehicles for doing so outlined above. Therefore, it cannot be


                                          13
said that they explicitly forbid citizens to change their gender within the borders of

Texas.

      Moreover, any argument that they implicitly forbade court-ordered gender

changes is without merit. If they had, a court order changing a person’s gender would

not be sufficient documentation for the DPS. Therefore, we are left with the issue

that the family code’s failure to provide a vehicle for changing a person’s gender,

and/or failing to explicitly allow for gender changes in chapter 45 was an oversight,

as simply adding the phrase “and/or gender” to the statute would alleviate this

confusion in the law.

      Further, utilizing chapter 45’s change of name provision to change one’s

gender is the most obvious method of doing so for persons not born in Texas who

seek to change their Texas driver’s license. First because the name change will be

required to make the gender change complete, and second, to avoid the expense and

embarrassment of obtaining a medical certification to be reviewed by a “specialist.”

Therefore, there is no valid reason as to why the name change statute cannot also be

used to change one’s gender.

      Unfortunately, the trial court refused to act because of the conflicts outlined

above. Appellant pointed out that Texas case law appears to be moving towards

recognizing transgendered rights as members of their chosen gender, and that Texas

law at least contemplated that a person could change their gender by court order.


                                         14
However, not having a statute explicitly telling the court that it could issue an order

changing the Appellant’s gender, it stated that it would “let the Court of Appeals

decide that.”

       Finally, it must be noted that in some jurisdictions the name change statute is

already being used to change the gender of some petitioners. In the transgendered

community, it is well known that a court order changing one’s gender can be

obtained in certain courts in San Antonio and Austin. This practice is leading to a

disparity in the law whereby a class of people are limited in their due process rights

by jurisdiction only. There is no other portion of the law where this is either true, or

acceptable in any way.

       While those desiring the change can apply in these jurisdictions and thereby

obtain relief, they must meet the residency requirements of the county first. If this

issue is left as it is, the court will implicitly be requiring people to suffer the expense

of moving prior to applying. Again, there is no other portion of the law where such

a requirement exists.

       Therefore, Appellant has a liberty interest in changing his gender from female

to male. Although Texas does not explicitly state that the name change statute may

be used to this end, there is no valid reason why it may not. Finally, because

Appellant is not a native-born Texan, the procedure delineated for changing a Texas

birth certificate is not applicable to him.


                                              15
                       CONCLUSION AND PRAYER
      ACCORDINGLY, this Court should SUSTAIN Appellant’s ISSUE FOR

REVIEW; VACATE the Trial Court’s ORDER denying the change of gender; and,

REMAND the cause to the Trial Court below for a FURTHER PROCEEDINGS in

light of this Court’s rulings with regard to the requested gender change.

       Appellant further prays for all relief to which she may be entitled.

                                               Respectfully submitted,


                                               ______________________________
                                               TOM ABBATE
                                               SBOT# 24072501
                                               440 Louisiana St, Suite 200
                                               Houston, TX 77002
                                               (832) 687-6447

                                               Attorney for APPELLANT


                       CERTIFICATE OF NON-SERVICE


      This is to certify that no service of the forgoing document was performed as

there is no adverse party to this case.




                                               ______________________________
                                               TOM ABBATE




                                          16
                  CERTIFICATE OF COMPLIANCE
I hereby certify that there are 2,899 words contained in this document.



                                             ______________________________
                                             TOM ABBATE




                                        17
