                                 NUMBER 13-11-00490-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


     IN THE ESTATE OF THOMAS TREVINO ARAGUZ III, DECEASED


                       On appeal from the 329th District Court
                            of Wharton County, Texas.


                                          OPINION

   Before Chief Justice Valdez and Justices Rodriguez and Longoria
                    Opinion by Chief Justice Valdez
        After volunteer firefighter Thomas Trevino Araguz III died in the line of duty, his

mother, Simona Longoria, filed this suit to declare his marriage to Nikki Araguz void as a

matter of law on the grounds that it constituted a same sex marriage. 1 See TEX. CONST.

art. I, § 32(a) (“Marriage in this state shall consist only of the union of one man and one

woman.”); TEX. FAM. CODE ANN. § 6.204(b) (West 2006) (“A marriage between persons of


        1
            Specifically, Simona filed an Application for Letters of Administration, Application for
Determination of Heirship, Petition to Declare Marriage Void, Application for Temporary Restraining Order,
and Motion to Transfer Venue to District Court.
the same sex or a civil union is contrary to the public policy of this state and is void in this

state.”). Subsequently, Thomas’s ex-wife, Heather Delgado, intervened as next friend on

behalf of their two minor children also contending that Thomas’s marriage to Nikki was

void as a matter of law because it constituted a same sex marriage. See TEX. CONST. art.

I, § 32(a); TEX. FAM. CODE ANN. § 6.204(b).                      Nikki answered the suit and filed a

counterclaim to declare the marriage valid. See TEX. CIV. PRAC. & REM. CODE ANN. §§

37.003–.004 (West 2008). The parties filed opposing motions for summary judgment.

See TEX. R. CIV. P. 166a(c), (i). The trial court granted Simona and Heather’s motions

and denied Nikki’s motion. The court then entered a final judgment in favor of Simona

and Heather declaring the marriage void as a matter of law. See TEX. FAM. CODE ANN. §

6.204(b). For the reasons set forth below, we conclude that the trial court erred in granting

the summary judgment because there is a genuine issue of material fact regarding Nikki’s

sex and whether the marriage was a same sex marriage. See TEX. R. CIV. P. 166a(c), (i).

Accordingly, we reverse the trial court’s judgment and remand for further proceedings

consistent with this opinion. See TEX. R. APP. P. 43.2(b).

                                              I. BACKGROUND2

        Nikki was born in California in 1975 with male sex organs, including a penis, testes,

and scrotum, and without any female sex organs, such as a vagina or uterus. The name

“Justin Graham Purdue” appeared on Nikki’s original birth certificate with the designation


        2
           The facts stated in this background section are not in dispute. See TEX. R. APP. P. 38.1(g) (“In a
civil case, the court will accept as true the facts stated unless another party contradicts them.”). We also
note that although we refer to Nikki using feminine terms throughout this opinion, as Nikki and Heather have
in their appellate briefs, we do so strictly for ease of reference and to be courteous and respectful in stating
the basic reasons for our decision. See TEX. R. APP. P. 47.1; TEX. CODE OF JUDICIAL CONDUCT, Cannon
3B(4) (“A judge shall be patient, dignified and courteous to litigants . . . .”); see Littleton v. Prange, 9 S.W.3d
223, 224 (Tex. App.—San Antonio 1999, pet. denied) (referring to appellant in feminine terms even though
her sex was disputed and noting that such references were “out of respect for the litigant” and have “no
legal implications”).


                                                        2
that Nikki was “male.” Nevertheless, since early childhood, Nikki was largely taken by

others as a girl. She always reacted favorably to this. By the age of four or five, she

expressed feelings of being female. Nikki began wearing female clothes as an adolescent

and has continued to do so for essentially all of her life. At the age of eighteen, Nikki’s

physician diagnosed her with “gender dysphoria” (also known as “gender identity

disorder”), a medical condition whereby an individual has longstanding and persistent

feelings of being a member of the opposite sex.          Nikki’s physician started her on

feminizing hormone therapy, and she continued living as a female.

       At the age of twenty-one, Nikki filed a petition in the 245th District Court of Harris

County, Texas to have her name changed. In the petition, Nikki states the following: “I,

Justin Purdue, am a woman with male anatomy, working toward a sex change. I have

been living and working as a woman for over one year and seek to make my new name

legal and permanent.” On February 9, 1996, the district court issued an order granting a

name change from “Justin Graham Purdue” to “Nikki Paige Purdue.” Subsequently, on

April 27, 1996, Nikki filed an application in California to amend her birth certificate to

reflect the name change. Thereafter, on August 21, 1996, the State of California issued

an amended birth certificate reflecting the name change.

       After changing her name, Nikki obtained a driver’s license from Kansas with the

designation that she is female. She then used the Kansas driver’s license to obtain a

Texas driver’s license with the designation that she is female.

       On August 19, 2008, Nikki presented her Texas driver’s license to the County Clerk

of Wharton County, Texas to obtain a marriage license. The marriage license indicates

that Nikki is a “woman.” On August 23, 2008, Thomas and Nikki were married in a




                                             3
ceremonial wedding in Wharton County. At the time of the wedding, Nikki had male sex

organs, but she was living as a woman. After the wedding, Thomas and Nikki cohabitated

as husband and wife until the time of Thomas’s death in 2010.

       In October of 2008, Nikki underwent “genital reassignment” or “neocolporrhaphy”

surgery in which her testes were removed and her penis and scrotum were surgically

altered to resemble and function as a labia, clitoris, and vagina. The procedure was

performed in Texas by Dr. Marci Bowers, a Texas licensed physician. The parties dispute

whether Thomas was aware of Nikki’s operation. On April 28, 2010, just two months

before his death, Thomas gave a deposition in a family court proceeding involving the

custody of his two sons in which he testified that he did not know that Nikki had undergone

genital reassignment surgery. Thomas testified that he did not know that his wife was

“formerly male” or that she had any type of “gender surgery.” According to Thomas’s

testimony, Nikki represented herself as “female” prior to their marriage. Nikki maintains

that before Thomas’s deposition, she and Thomas agreed to take the position that she

was female from birth.     According to Nikki, Thomas was fully aware of the genital

reassignment surgery.

       Thomas died on July 3, 2010. On July 15, 2010, Nikki filed a petition in the superior

court of San Francisco County, California requesting the issuance of a new birth

certificate reflecting the change of her sex from male to female. On July 20, 2010, the

California court entered an order changing Nikki’s sex from male to female. Thereafter,

on August 30, 2010, the State of California issued a birth certificate stating that Nikki is

“female.”




                                             4
                                       II. PROCEDURAL HISTORY

        As set forth above, Thomas’s mother, Simona, initiated this suit on July 12, 2010

seeking to have Thomas’s marriage to Nikki declared void as a same sex marriage. See

TEX. FAM. CODE ANN. § 6.204(b). Thomas’s ex-wife, Heather, subsequently intervened

as next friend on behalf of their two minor children also seeking to have the marriage

declared void. See id. Nikki answered the suit and filed a counterclaim to declare the

marriage valid. The parties then filed opposing motions for summary judgment as follows.

A. Heather’s Motion for Summary Judgment

        On October 26, 2010, Heather filed a traditional motion for summary judgment,

with attached evidence,3 asserting the following grounds for summary judgment:

        (1) The marriage was void pursuant to Article I, Section 32 of the Texas
            Constitution, which provides that “marriage in this state shall consist only
            of the union of one man and one woman.” TEX. CONST. art. I, § 32(a).

        (2) The marriage was void pursuant to Section 6.204(b) of the Texas Family
            Code, which provides that “a marriage between persons of the same
            sex is . . . contrary to the public policy of this state and is void as a matter
            of law.” TEX. FAM. CODE ANN. § 6.204(b).

        (3) As a matter of law, no informal marriage could have existed between
            Thomas and Nikki because Section 2.401 of the Texas Family Code
            provides for informal marriage only between a man and a woman, as

        3   The evidence attached to Heather’s motion for summary judgment included the following: (1)
Nikki’s original birth certificate stating that Nikki was born “male” on June 4, 1975 in Carmel, California and
named “Justin Graham Purdue”; (2) an application for a name change completed by “Justin Graham
Purdue,” identifying the applicant’s sex as “M” or male and stating as the cause for the name change: “I,
Justin Purdue, am a woman with male anatomy, working toward a sex change. I have been living and
working as a woman for over one year and seek to make my new name legal and permanent”; (3) an order
of the 245th District Court of Harris County granting the name change as of February 2, 1996; (4) an
application for amendment of birth certificate to reflect the court ordered change of name completed by
Nikki and dated April 27, 1996; and (5) Nikki’s answers to requests for admissions in the instant suit,
admitting the following: (a) Nikki was born Justin Graham Purdue; (b) the birth certificate of Justin Graham
Purdue lists his sex as male; (c) Justin Graham Purdue was born with a penis; (d) Justin Graham Purdue
was born with testes; (e) Justin Graham Purdue was born without a vagina; (f) Justin Graham Purdue was
born without a uterus; (g) Nikki had a penis on the day of the issuance of the marriage license for Nikki and
Thomas; (h) Nikki had testes on the day of the issuance of the marriage license for Nikki and Thomas; and
(i) Nikki had genital reassignment surgery in October of 2008.



                                                      5
            decided by the San Antonio Court of Appeals in Littleton v. Prange, 9
            S.W.3d 223, 231 (Tex. App.—San Antonio 1999, pet. denied). See TEX.
            FAM. CODE ANN. § 2.401 (West 2006).

See TEX. R. CIV. P. 166a(c).

B. Nikki’s Motion for Summary Judgment

        On April 21, 2011, Nikki filed a “no evidence” motion for summary judgment

asserting that she was entitled to judgment as a matter of law because Heather and

Simona could produce no evidence that Thomas and Nikki did not have a valid ceremonial

marriage or, alternatively, a valid informal marriage. See TEX. R. CIV. P. 166a(i).4

C. Heather’s Response to Nikki’s Motion

        On May 13, 2011, Heather filed her response to Nikki’s motion for summary

judgment with evidence attached.5 In her response, Heather argued that summary

judgment was not proper because of the following:

        (1) “It is undisputed that as of the date of the statutory marriage between
            Thomas . . . and Nikki . . . , the participants in the ceremony were both
            men.”

        (2) No informal marriage could have existed between Thomas and Nikki
            after the genital reassignment surgery in 2008 because “Nikki . . . took
            no steps to legally change her sex from male to female until July 15,
            2010,” after Thomas’s death.

        (3) No informal marriage could exist because, under Littleton, a person’s

        4 We note that on appeal, Nikki asserts that the motion was “incorrectly styled as a ‘no evidence’
motion [because] . . . in substance the motion was unmistakably a traditional motion.” We also note that
there was no evidence attached to the motion or referenced therein. We disagree with Nikki’s assertion
that the motion was a traditional motion. See TEX. R. CIV. P. 166a(c). In form and substance, the motion
was a no evidence motion. See TEX. R. CIV. P. 166a(i).

        5
            The following exhibits were attached to Heather’s response: (1) affidavit of Edward C. Burwell;
(2) Nikki’s responses to requests for admissions; (3) certificate of live birth of Justin Graham Purdue; (3)
application for name change for Justin Graham Purdue; (4) order granting the application for name change;
(5) Nikki’s application for amendment of birth record to reflect the name change; (6) Nikki’s memorandum
of points and authorities in support of her petition for a change of gender; (7) Nikki’s amended birth
certificate; and (8) a transcript of the California court’s proceedings regarding Nikki’s request for a legal
change of gender.



                                                     6
            gender, while subject to physical manipulation for the purpose of
            assuming the appearance of an alternate gender, is nonetheless
            governed by the gender of the person at birth, as determined by both
            anatomical and genetic examinations of the person. See Littleton, 9
            S.W.3d at 224.

D. Simona’s Response to Nikki’s Motion

        On April 21, 2011, Simona filed her response to Nikki’s motion for summary

judgment with evidence attached.6 In her response, Simona argued that a “no evidence”

summary judgment was improper because Nikki had the burden of proof to establish the

existence of an informal marriage. See State v. Mireles, 904 S.W.2d 885, 888 (Tex.

App.—Corpus Christi 1995, pet. ref’d) (“The burden of proof is on the one seeking to

establish the existence of such a marriage.”); but see TEX. FAM. CODE ANN. § 1.101 (West

2006) (“[E]very marriage entered into in this state is presumed to be valid unless expressly

made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled

as provided by that chapter.”).

E. Simona’s Motion for Summary Judgment

        Also on April 21, 2011, Simona filed a traditional motion for summary judgment,

with attached evidence,7 asserting the following grounds for summary judgment:


        6 The evidence attached to Simona’s response was the same evidence attached to her traditional

motion for summary judgment set forth in footnote 7.

        7
            The evidence attached to Simona’s motion for summary judgment included the following: (1)
certificate of live birth for Justin Graham Purdue dated June 18, 1975; (2) verified pleading of Justin Graham
Purdue in Cause No. 96-07867 in the 245th District Court of Harris County, Texas; (3) order granting name
change in Cause No. 96-07867 in the 245th District Court of Harris County, Texas; (4) amended certificate
of live birth of Justin Graham Purdue dated August 21, 1996; (5) Nikki’s memorandum of points and
authorities in support of petition for name change; (6) transcript of hearing on Nikki’s petition for change of
gender dated July 20, 2010; (7) Nikki’s certificate of live birth; (8) marriage license for Thomas and Nikki;
(8) Houston Independent School District records for Justin Graham Purdue; (9) Cypress-Fairbanks
Independent School District records for Justin Graham Purdue; (10) Aldine Independent School District
records for Justin Graham Purdue; (11) “medical records of Justin Graham Purdue aka Nikki Purdue aka
Nikki Araguz aka Nikki Mata from Gulf Coast Medical Center”; (12) “medical records of Justin Graham
Purdue aka Nikki Purdue aka Nikki Araguz aka Nikki Mata from Dr. Juan Garza, Dr. Esther Perez, Houston
Area Community Services”; (13) “medical records of Justin Graham Purdue aka Nikki Purdue aka Nikki


                                                      7
        (1) The purported marriage between Thomas and Nikki was void because
             at the time of their marriage, both Thomas and Nikki were males. See
             TEX. FAM. CODE ANN. § 6.204(b).

        (2) No informal marriage could exist between Thomas and Nikki after the
             date of Nikki’s operation (October 7, 2008) based on Littleton. See
             Littleton, 9 S.W.3d at 230.

        (3) The purported marriage is void based on judicial estoppel because Nikki
             previously claimed that she was a male in a separate court proceeding.

See TEX. R. CIV. P. 166a(c).

F. Nikki’s Response to Heather and Simona’s Motions

        On May 13, 2011, Nikki filed her response to Heather and Simona’s motions for

summary judgment with evidence attached.8 In her response, Nikki argued that summary

judgment was improper based on the following grounds:

        (1) Littleton was overruled by the 2009 amendment to section 2.005 of the
             Texas Family Code, which added “an original or certified copy of a court
             order relating to the applicant’s name change or sex change” to the list
             of acceptable “proof of identity and age” for purposes of obtaining a
             marriage license. See TEX. FAM. CODE ANN. § 2.005(b)(8) (West Supp.
             2013).

        (2) Nikki’s gender has always been female, as evidenced by the birth
             certificate issued by the State of California on August 30, 2010 stating
             that she is “female” and the corresponding judgment of the California

Araguz aka Nikki Mata from Dr. Marci Bowers”; (14) “medical records of Justin Graham Purdue aka Nikki
Purdue aka Nikki Araguz aka Nikki Mata from Mount Saint Rafael Hospital”; (15) Nikki’s responses to
Simona’s requests for admissions; (16) Nikki’s responses to Simona’s written interrogatories; (17) excerpts
of Nikki’s deposition in Cause No. 44,575 in the 329th Judicial District Court of Wharton County, Texas;
(18) excerpts of Nikki’s deposition in Cause No. 42,122 in the 329th Judicial District Court of Wharton
County, Texas; (19) excerpts of Thomas’s deposition in Cause No. 42,122 in the 329th Judicial District
Court of Wharton County, Texas; and (20) Thomas’s certificate of live birth.

        8
            The evidence attached to Nikki’s response included the following: (1) affidavit of Jim Paulsen;
(2) affidavit of Collier Cole, Ph.D.; (3) Nikki’s birth certificate; (4) Texas Family Code Section 2.005; (5)
Nikki’s affidavit; (6) Simona’s exhibit F; (7) Nikki’s jail records stating that she is “F” or female; (8) Thomas
and Nikki’s application for a marriage license; (9) 00112 of Houston Community Service medical records;
(10) excerpts from the California health and safety code; (11) Steve Chelotti’s affidavit; (12) marriage
license for Thomas and Nikki; (13) Nikki’s Texas driver’s license; (14) marriage compact of Nikki and
Thomas; (15) California court order for change in Nikki’s birth certificate; and (16) Dr. Bower’s medical
report.



                                                       8
             court, to which the court must give full faith and credit by ruling that the
             other two birth certificates issued by the State of California in 1975 and
             1996, respectively, and her discovery answers are a “nullity” that cannot
             be proper summary judgment evidence. See U.S. CONST. art. IV, § 1.9

        (3) Nikki was female at the time of the ceremonial marriage because
             according to the World Professional Association for Transgender Health
             (“WPATH”) standards of care, she “successfully transitioned” to the
             female sex years before she met Thomas.10

        (4) Nikki was female prior to her genital reassignment surgery, as evidenced
             by her medical records prepared by Marci Bowers, M.D.11

        (5) An informal marriage existed between Thomas and Nikki. See TEX. FAM.
             CODE ANN. § 2.401(a).

        (6) Simona did not plead judicial estoppel.

        (7) The Equal Protection clause of the Fourteenth Amendment to the United
             States Constitution requires Texas to recognize “a post-operative
             transgendered individual’s current sex.” See U.S. CONST. amend. XIV,
             § 1.

G. The Trial Court’s Ruling

        On May 26, 2011, the trial court granted Heather and Simona’s traditional motions

for summary judgment and denied Nikki’s no evidence motion for summary judgment.




        9
            In connection with this assertion, Nikki relies on section 103430(d) of the California Health and
Safety Code, which states in relevant part that “[n]o reference shall be made in the new birth certificate [for
a registrant whose sex has been surgically altered] . . . that it is not the original birth certificate of the
registrant.” CAL. HEALH & SAFETY CODE § 103430(d).

        10
            Nikki relies on the affidavit of Collier Cole, Ph.D., a Texas licensed clinical psychologist and full
professor in the University of Texas Medical Branch, Galveston’s Department of Psychiatry and Behavioral
Sciences, who states that because Nikki “pursued this transition in accordance with the standards of care
of the World Professional Association for Transgender Health, [he] regard[s] her medically and
psychologically as female.” He also states that “[s]urgery per se is not the definitive point that makes
someone female.” According to Dr. Cole, “it is completion of real life experiences which documents such
she had this condition at birth, recognized such as she grew up, and took the steps to resolve this issue.”
        11
           Nikki relies on the medical records prepared by Marci Bowers, M.D. in connection with her
“genital reassignment surgery” or “neocolporrhaphy.”        The records indicate a preoperative and
postoperative diagnosis of “gender dysphoria, male to female transexualism.” The records describe Nikki
as “a 33 year old, phenotypic female, who has followed the WPATH Standards of Care.” Based on a
physical examination, Dr. Bowers described Nikki as a “[p]leasant thin woman in no apparent distress.”


                                                       9
See TEX. R. CIV. P. 166a(c), (i). The trial court’s judgment declares that Thomas was not

married on the date of his death and that any purported marriage between Thomas and

Nikki was void as a matter of law. The remaining issues pertaining to the estate were

severed from this cause, and the trial court’s judgment became final and appealable.

                                  III. ISSUES ON APPEAL

      On appeal, Nikki argues that the trial court erred in granting summary judgment for

the following reasons:

      (1) Thomas and Nikki’s marriage was valid because the uncontroverted
          summary judgment evidence established that Nikki was female.

      (2) Thomas and Nikki’s marriage was validated by the 2009 amendments
          to the Texas Family Code.

      (3) Thomas and Nikki’s marriage was valid under the United States and
          Texas Constitutions, considering that—

          a. The California judgment and birth certificate identifying Nikki’s sex as
             female are entitled to full faith and credit in Texas, and

          b. The trial court’s judgment invalidating the marriage violates Nikki’s
             rights under the Texas Equal Rights Amendment and the Fourteenth
             Amendment to the United States Constitution.

      (4) Thomas and Nikki’s marriage would be valid in most jurisdictions.

      (5) The Littleton decision is not controlling.

      (6) The judgment cannot be affirmed based on judicial estoppel.

      (7) Even if Thomas and Nikki’s marriage were incorrectly deemed a “same
          sex” marriage, Texas courts cannot constitutionally declare it void on
          that basis.

                                  IV. STANDARD OF REVIEW

      “We review a summary judgment de novo.” Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (citing Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). “We review the evidence presented in



                                             10
the motion and response in the light most favorable to the party against whom the

summary judgment was rendered, crediting evidence favorable to that party if reasonable

jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Id.

(citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer &

Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)). “The party moving for traditional

summary judgment bears the burden of showing no genuine issue of material fact exists

and it is entitled to judgment as a matter of law.” Id. (citing TEX. R. CIV. P. 166a(c); Knott,

128 S.W.3d at 216). “When both sides move for summary judgment and the trial court

grants one motion and denies the other, we review the summary judgment evidence

presented by both sides and determine all questions presented.” Id. (citing Comm’rs

Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)). “In such a situation, we

render the judgment as the trial court should have rendered.” Id. (citing Agan, 940 S.W.2d

at 81).

          In this case, the parties filed competing motions for summary judgment in which

each litigant asserted that there were no genuine issues of material fact; however, the

Texas Supreme Court has explained as follows:

          When both sides file motions for summary judgment, each litigant in support
          of his own motion necessarily takes the position that there is no genuine
          issue of fact in the case and that he is entitled to judgment as a matter of
          law. While it does not necessarily follow that when both sides file motions
          for summary judgment there is no genuine fact issue in the case, it does
          indicate that the legal controversy is one which generally turns upon an
          interpretation of some rule of law and both sides are prepared to present
          their respective contentions with reference thereto.

Ackermann v. Vordenbaum, 403 S.W.2d 362, 364–65 (Tex. 1966); see also Coker v.

Coker, 650 S.W.2d 391, 392 (Tex. 1983) (reversing summary judgment and remanding

for trial even though both sides moved for summary judgment and asserted settlement



                                              11
agreement was unambiguous).

                                    V. APPLICABLE LAW

       The Texas Constitution defines a marriage as “the union of one man and one

woman.” See TEX. CONST. art. I, § 32(a). Furthermore, the Texas Family Code provides

that “[a] marriage between persons of the same sex or a civil union is contrary to the

public policy of this state and is void in this state.” TEX. FAM. CODE ANN. § 6.204(b).

Consistent with the foregoing, the Texas Family Code states that “[a] license may not be

issued for the marriage of persons of the same sex,” id. § 2.001(b) (West 2006), and it

also provides that an informal marriage may exist only between a “man and woman.” Id.

§ 2.401(a).

       “[I]n order to provide stability for those entering into the marriage [relationship] in

good faith . . . it is the policy of this state to preserve and uphold each marriage against

claims of invalidity unless a strong reason exists for holding the marriage void or

voidable.” Id. § 1.101 (West 2006). “The presumption in favor of the validity of a marriage

. . . is one of the strongest, if, indeed, not the strongest, known to law.” Tex. Employers’

Ins. Ass’n v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). “The presumption is, in itself,

evidence, and may even outweigh positive evidence to the contrary.” Id. “The strength

of the presumption increases with the lapse of time, acknowledgments by the parties to

the marriage, and the birth of children.” Id. Thus, “the well-established rule [is] that, when

a marriage has been duly established its legality will be presumed, and the burden of

proving the contrary is upon the one attacking its legality.” Id. However, because same

sex marriages are “expressly made void by Chapter 6 [of the Texas Family Code],” they

are not presumed to be valid. TEX. FAM. CODE ANN. § 1.001.




                                             12
                                             VI. DISCUSSION

        “Over the course of the last decades, States with same-sex prohibitions have

moved toward abolishing them.” Lawrence v. Texas, 539 U.S. 558, 570 (2003). Twelve

states and the District of Columbia have “decided that same-sex couples should have the

right to marry and so live with pride in themselves and their union and in a status of

equality with all other married persons.” United States v. Windsor, 133 S.Ct. 2675, 2689

(2013). In 2013, the United States Supreme Court struck down the provision of the

Defense of Marriage Act (“DOMA”) that prohibited the federal government from

recognizing same sex marriages. See id. at 2696 (“The federal statute is invalid, for no

legitimate purpose overcomes the purpose and effect to disparage and to injure those

whom the State, by its marriage laws, sought to protect in personhood and dignity.”) (citing

1 U.S.C. § 7). To date, these developments have not affected the law banning same sex

marriages in Texas. See Tex. FAM. CODE ANN. § 6.204(b).

        The dispute in this case is whether Thomas and Nikki had a same sex marriage in

contravention of Texas law. See TEX. CONST. art. I, § 32(a); TEX. FAM. CODE ANN. §

6.204(b). The resolution of the dispute will require a determination of Nikki’s sex, an issue

on which the parties strongly disagree.12 In granting the summary judgment, the trial court

declared that the marriage was void under Texas law. See TEX. FAM. CODE ANN. §

6.204(b). In doing so, it necessarily found that Nikki was a man at the time of Thomas’s

death such that the marriage was between two men in violation of the Texas Constitution



        12
           Heather’s brief states that “[t]he determination of . . . [Nikki’s] gender is the only issue in this
case.” Likewise, Simona’s brief states that the “[t]he validity of the marriage before this Court revolves
around a central issue: Is Nikki Araguz male?”


                                                     13
and the Texas Family Code. See TEX. CONST. art. I, § 32(a); TEX. FAM. CODE ANN. §

6.204(b). We conclude that this was an error because, on the record before us, the

question of Nikki’s sex is a disputed issue of material fact that precludes summary

judgment.   See Tex. Commerce Bank v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002)

(“Summary judgment is appropriate only when there are no disputed issues of material

fact and the moving party is entitled to judgment as a matter of law.”).

A. Was Summary Judgment Proper Based on Littleton?

       As set forth above, Heather and Simona asserted that summary judgment was

proper based on the Littleton decision by the San Antonio Court of Appeals. See Littleton,

9 S.W.3d at 224. Therefore, we will address whether the trial court’s summary judgment

must be upheld based on Littleton.

       Littleton involved a final summary judgment rendered against an individual named

Christie Lee Littleton who was born with male sex organs, was later diagnosed with

gender dysphoria, and underwent medical treatment for the condition, “which culminated

in a complete sex reassignment” such that she became “medically a woman.” Id. at 224–

25. Nevertheless, the trial court ruled that Christie’s subsequent marriage to Jonathan

Mark Littleton was void as a same sex marriage based on Christie’s original birth

certificate stating that she was “male.” Id. at 225.

       Christie appealed to the Fourth Court of Appeals in San Antonio, which was unable

to reach a unanimous decision. Two of the three justices who heard the case agreed to

affirm the trial court’s judgment on the basis that Christie was not a surviving spouse

under the Texas wrongful death statute. Id. at 231–32. Chief Justice Hardberger wrote

an opinion, designated as the majority opinion; however, the other two panel members




                                             14
did not join his opinion, but instead wrote separately. Id. at 223–34. Justice Angelini

wrote a concurring opinion, id. at 231–32, and Justice Lopez wrote a dissenting opinion.

Id. at 232–34.

       The central theme of Chief Justice Hardberger’s opinion was that Texas law does

not recognize any individuals “as having successfully changed their sex.” Id. at 230. In

her concurring opinion, Justice Angelini was careful to limit her discussion to the “pre-

operative distinction between Christie Lee Littleton and a typical male.”       Id. at 232.

Although Justice Angelini did not purport to express a position on the issue of whether

Texas law recognizes that an individual may change his or her sex, her concurring opinion

focuses on Christie’s pre-operative condition and fails to address Christie’s post-operative

condition, thus implying that Texas law does not recognize the possibility of a sex change.

See id. at 231–32.

       Heather and Simona relied extensively, if not exclusively, on the Littleton decision

as authority for their motions for summary judgment. Yet, even if Littleton was correct at

the time it was decided in 1999, it is possible that the legal landscape has changed since

then. And in fact, it has.

       In 2009, the legislature amended the family code to add a court order related to an

applicant’s “sex change” as a form of acceptable proof to establish an applicant’s identity

and age, and thus, eligibility, to obtain a marriage license. See TEX. FAM. CODE ANN. §

2.005(b)(8). The parties dispute the meaning of the amendment. Nikki cites it as her

primary authority, while Heather and Simona dismiss it as being, in essence, meaningless

surplusage that did not have the effect of legitimizing any individual’s “sex change” under

Texas law. We disagree with Heather and Simona on this point.




                                            15
       “A statute is presumed to have been enacted by the legislature with complete

knowledge of the existing law and with reference to it.” Acker v. Tex. Water Comm'n, 790

S.W.2d 299, 300 (Tex. 1990). Furthermore, “the legislature is never presumed to do a

useless act.” Hunter v. Fort Worth Cap. Corp., 620 S.W.2d 547, 551 (Tex. 1981). Courts

“will not read statutory language to be pointless if it is reasonably susceptible of another

construction.” City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995) (citing

Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987)).

       The Texas Code Construction Act provides in relevant part:

       In enacting a statute, it is presumed that:

              (a) compliance with the constitutions of this state and the United
                 States is intended;

              (b) the entire statute is intended to be effective;

              (c) a just and reasonable result is intended;

              (d) a result feasible of execution is intended; and

              (e) public interest is favored over any private interest.

TEX. GOV’T CODE ANN. § 311.021 (West 2013) (emphasis added). The Act also provides

as follows:

       (a) Words and phrases shall be read in context and construed according to
          the rules of grammar and common usage.

       (b) Words and phrases that have acquired a technical or particular meaning,
          whether by legislative definition or otherwise, shall be construed
          accordingly.

Id. § 311.011 (West 2013); Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d

644, 651 (Tex. 2006) (“Ordinarily, the truest manifestation of what legislators intended is

what lawmakers enacted, the literal text they voted on.”).




                                             16
       Read in the context of the constitutional definition of the marriage relationship, the

statutory term “same sex marriage” means a marriage between two men or a marriage

between two women. See TEX. CONST. art. I, § 32(a); TEX. FAM. CODE ANN. § 6.204(b).

The term “sex change” is also used in the marriage statute, but it is not defined. See TEX.

FAM. CODE ANN. § 2.005(b)(8). Therefore, we give the term its “ordinary meaning.”

Owens Corning v. Carter, 997 S.W.2d 560, 572–73 (Tex. 1999) (“When interpreting a

statute, we begin with the words of the statute itself, giving words their ordinary meaning.”)

(citing In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex. 1998)).

       Here, the legislature has clearly used the words “sex change” in a way that

establishes that a person who has had a sex change is eligible to marry a person of the

opposite sex such that the marriage is between one man and one woman, as set forth in

the Texas Constitution. See TEX. CONST. art. I, § 32(a). The statute provides in relevant

part as follows:

       PROOF OF IDENTITY AND AGE.

              (a) The county clerk shall require proof of the identity and age of each
                   applicant [for a marriage license].

              (b) The proof must be established by . . .

                      (8) an original or certified copy of a court order relating to the
                      applicant’s name change or sex change . . . .

See TEX. FAM. CODE ANN. § 2.005(a), (b)(8) (emphasis added).

       The statute clearly contemplates a court of competent jurisdiction issuing an order

recognizing and essentially certifying an individual’s change of sex, much like a name

change. However, unlike a name change, which is governed by Chapter 45 of the Texas

Family Code, there is no corresponding chapter of the family code governing a sex




                                              17
change. See id. §§ 45.001–.006 (West 2002). There are no rules or standards set forth

in the statute, and the legislative history is silent with respect to this provision of the

statute. To date, there have been two failed attempts to delete the words “sex change”

from the statute. See Tex. S.B. 723, 82d Leg., R.S. (proposing to remove the words “or

sex change” from section 2.005(b)); Tex. H.B. 3098, 82d Leg., R.S. (same). However,

the statute’s future is not at issue in this case. Today, we deal with the statute as it was

enacted by Texas lawmakers and signed into law by the governor.

       For our purposes, the key words in the statute are “identity” and “sex change.” See

TEX. FAM. CODE ANN. § 2.005(a), (b)(8). “Identity” refers to the applicant as an individual,

and the term “sex change” refers to the applicant changing his or her sex. See id.

Reading the statutory provision as a whole, it states that an applicant who has had a “sex

change” may use a court order related to that sex change as proof of identity and thus

eligibility to obtain a marriage license. See id. Reading the statute to conform with the

definition of a marriage in the Texas Constitution and the statutory ban on same sex

marriages, which are crystal clear in their meaning and effect, we hold that under Texas

law a valid marriage could exist between Nikki and Thomas only if Nikki was a woman

during their marriage such that there was a marriage between one man and one woman,

as set forth in the Texas Constitution. See TEX. CONST. art. I, § 32(a). Otherwise, it was

a same sex marriage banned by Texas law. See TEX. FAM. CODE ANN. § 6.204(b).

       In sum, we hold that Texas law recognizes that an individual who has had a “sex

change” is eligible to marry a person of the opposite sex. See id. § 2.005(a), (b)(8). For

these reasons, we conclude that the trial court’s summary judgment in this case cannot

be affirmed based on Littleton because Littleton has been legislatively overruled. See id.




                                            18
B. Is There a Fact Issue Precluding Summary Judgment?

        In their respective motions, Heather and Simona argued that Nikki is a man based

on the uncontroverted summary judgment evidence that she was born with male sex

organs, had male sex organs at the time of her ceremonial marriage to Thomas, and was

originally designated as “male” on her California birth certificate.

        In response, Nikki objected to the evidence of her original birth certificate on the

basis that it “is now a legal nullity” because the State of California subsequently issued a

new birth certificate stating that she is “female,” which Nikki produced as summary

judgment evidence. Nikki also presented the expert report of Dr. Cole stating that

“sexuality per se is a complex phenomenon which involves a number of underlying

factors.”13 According to Dr. Cole’s affidavit, the factors that “should be taken into account

when identifying someone as male or female” “include chromosomes, hormones, sexual

anatomy, gender identity, sexual orientation, and sexual expression.” Dr. Cole notes that

while sexual “anatomy” at birth is “typically” the basis for determining an individual’s sex,



          13 Simona made several objections to the affidavit of Dr. Cole. On March 24, 2011, the trial court

signed an order overruling all the objections. Simona has not appealed that ruling. However, in her
appellate brief, she contends that this Court should exclude the affidavit of Dr. Cole from consideration
because (1) the affidavit fails to state that “the facts contained herein are true” and (2) the documents
referred to in the affidavit were not attached. In response to the first contention, Nikki requested and
obtained an order from the trial court stating that Nikki “out of an abundance of caution, has revised the
timely filed affidavit of Collier Cole, Ph.D. to state that ‘the facts and opinions stated in this affidavit are
within my personal knowledge, are true and correct . . .’ at the onset of his affidavit.” Attached to the order
is Dr. Cole’s affidavit stating that the facts are “true and correct.” We also note that both affidavits (the
original and revised) stated that the facts and opinions were within Dr. Cole’s personal knowledge and both
were subscribed to and sworn before a notary public. Accordingly, we will not exclude the affidavits from
consideration on this basis. See Fed. Fin. Co. v. Delgado, 1 S.W.3d 181, 184 (Tex. App.—Corpus Christi
1999, no pet.) (“[W]here the affidavit does not specifically recite that the facts set forth there are true, but
does set out that it is based on personal knowledge and is subscribed to and sworn before a notary public,
it is not defective if, when considered in its entirety, its obvious effect is that the affiant is representing that
the facts stated therein are true and correct.”). In response to the second contention, we note that the
revised affidavit by Dr. Cole, which the trial court permitted, had the documents referred to in the affidavit
attached to the affidavit. See TEX. R. CIV. P. 166a(f) (“Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith.”). Accordingly, we will not exclude
the affidavit from consideration in this appeal.


                                                        19
“this is sometimes done incorrectly.”

      Dr. Cole’s affidavit states in relevant part as follows:

      With respect to gender dysphoria it is the factor of gender identity which is
      the primary focus. By definition gender identity is that personal private
      sense of being male or female. Of note, there also exist certain conditions
      where individuals may be born with chromosomal anomalies (such as XXY)
      or anatomical anomalies (such as intersex condition), in such cases it is
      recommended today that physicians not intervene until an individual is of
      age and has accepted clearly his or her gender identity. Then, as in the
      case of gender dysphoria, surgical and medical procedures can be brought
      to bear, to line up that person’s body to fit the mind and thereby complete
      treatment and resolve the underlying issue.

      Many individuals with gender dysphoria will recognize such themselves
      early in life and move forward with pursuing treatment intervention on their
      own. Others will go to professionals who can assist them in this regard.
      With increased awareness of this condition following the Christine
      Jorgenson case in 1952 many centers around the country began developing
      programs. However, it was not until 1980 that the Harry Benjamin
      International Gender Dysphoria Association was created and established
      the first Standards of Care, these are now in the sixth edition and can be
      found on the website of the World Professional Association for Transgender
      Health (WPATH.org). As in other areas of medicine once a condition
      becomes more understood protocols or standards are developed to assist
      people seeking help for a particular condition as well as to aid treating
      professionals working with them. In this case the major technique used to
      confirm a diagnosis of gender dysphoria is the “real life experience.”
      Essentially this is a period of time, a minimum of one year, where the
      individual begins living in the desired gender role. It is during this period of
      time that an individual will undergo hormone therapy to become more male
      or female in appearance, will begin living and working in that gender role,
      will deal with family and relationships, and then move towards making legal
      changes in terms of one’s name and gender designation on routine
      identification through the courts. After a successful transition an individual
      may pursue gender reassignment surgery to redesign the genitals in the
      desired fashion. . . .

      Many individuals cannot afford surgery and so will continue to live without
      such. It should be noted that this does not make them any less gender
      dysphoric than someone who does complete surgery. It is completion of
      the real life experiences itself which marks the point of change. Afterwards
      the individual, either one who has had surgery or one [who] has not, can
      pursue legal steps to change the birth certificate in the desired direction.
      Overall this method of treatment (i.e., The Standards of Care) is recognized



                                            20
         and accepted by contemporary and medical entities (e.g., Texas
         Department of Health, the Endocrine Society of the U.S.).

         After providing the foregoing explanation of gender dysphoria and the accepted

standards of care for the condition, Dr. Cole offers the following information concerning

Nikki:

         With respect to Nikki Araguz . . . I was provided a number of medical records
         to review before I interviewed her. These records dated back to the early
         1990’s and revealed much about her transition process. (A listing of these
         documents can be found in the attachment with this statement.) They
         suggest that Ms. Araguz had been following the aforementioned steps of
         the real life experience, including living as female, undergoing feminizing
         hormone therapy, and experiencing satisfying relationships with family and
         others. In addition to her records, I had a face-to-face interview with her in
         early January. She was born in Carmel, California, and raised primarily in
         Houston, Texas. From an early age she recalls longstanding feelings of
         being female, an observation often seen as noted above. Indeed, she
         reports wearing female clothes essentially all of her life. She often was
         perceived by others as female until they were corrected. This would
         suggest a strong female sexual identity.

         At age 18 her physician started her on feminizing hormone therapy. (No
         evidence of chromosome testing was reported.) From there she continued
         living as female in the real world. Her family was supportive of her gender
         dysphoria, she had both friendly and intimate relationships over the years,
         and she was successful in various work endeavors, where she always
         presented herself as female. At age 21 she successfully changed her name
         legally in the Houston courts. None of the records reviewed indicate any
         psychiatric problems related to her gender dysphoria or living as female. In
         my professional opinion she had successfully completed the “real life
         experience” in the late 1990’s as described in the Standards of Care. She
         then began saving money to pursue sex reassignment surgery which was
         completed in October 2008. In summary, Ms. Araguz successfully
         completed the current medically-accepted steps for treating the condition of
         gender dysphoria as described above. She essentially had been living as
         a female from an early age. Then, she began seeing a physician to initiate
         her feminizing hormone therapy which remains ongoing at this time. Also,
         she successfully dealt with family members and others in her life and also
         worked in the real world as a female. Eventually she was fortunate to
         complete sex reassignment surgery. However, as noted above many such
         individuals do not complete surgery for financial reasons. Surgery per se is
         not the definitive point that makes someone female. Rather, it is completion
         of the real life experience which documents . . . [that] she had this condition



                                               21
       at birth, recognized such as she grew up, and took the steps to resolve this
       issue. And, she pursued the transition in accordance with The Standards
       of Care of the World Professional Association for Transgender Health; I
       regard her medically and psychologically as female.

       We conclude that Dr. Cole’s affidavit is sufficient to raise a fact issue regarding

Nikki’s sex. According to Dr. Cole, sexuality is a “complex phenomenon,” particularly

when a “person’s body . . . [does not] fit the mind.” The uncontroverted evidence

established that Nikki suffers from a medical condition known as “gender dysphoria,”

discussed at length in Dr. Cole’s affidavit, the symptoms, diagnosis, and treatment of

which are “matters beyond the ken of most jurors” and jurists. Alexander v. Turtur &

Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004). Because the issue is beyond our

“common understanding, expert testimony is necessary.” Id. at 119–20; Haddock v.

Arnspiger, 793 S.W.2d 948, 954 (Tex. 1990) (holding, after reviewing the evidence, that

an expert was needed because the nature of the case was beyond the “common

knowledge of laymen”). We believe that “[e]xpert testimony is necessary . . . [because]

the . . . [condition of gender dysphoria and its treatment are] of such a nature as not to be

within the experience of the layman.” Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).

Similar to when the Texas Supreme Court held that “the diagnosis of skull fractures is not

within the experience of the ordinary layman,” see id., we hold that the condition of gender

dysphoria—including its symptoms, diagnosis, and treatment—are issues of fact not

within our common knowledge and therefore require expert testimony. See Volkswagen

of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904–05 (Tex. 2004) (“The answer is not within

common knowledge and requires expert testimony.”).

       The only expert testimony in the summary judgment record is Dr. Cole’s affidavit.

Heather and Simona failed to submit any expert testimony in support of their motions.



                                             22
Although their evidence established that Nikki was born with male sex organs and had

male sex organs on the date of her ceremonial marriage to Thomas, there is no evidence

to controvert Dr. Cole’s expert testimony regarding Nikki’s medical condition (i.e., gender

dysphoria), its treatment, or his expert opinion that Nikki is “medically and psychologically”

female as a result of her compliance with the standards of care adopted by the World

Professional Association for Transgender Health. Dr. Cole’s expert testimony accounts

for Nikki’s male sex organs at birth and at the time of her ceremonial marriage to Thomas,

which are uncontroverted facts that cannot be disregarded, and places them in context

such that a reasonable juror crediting Dr. Cole’s testimony would be able to find Nikki’s

sex to be female. Accordingly, we conclude that Nikki raised a genuine issue of material

fact regarding her sex. See TEX. R. CIV. P. 166a(c).

C. Was Summary Judgment Proper Based on Judicial Estoppel?

       The only remaining basis for upholding the trial court’s summary judgment is

Simona’s assertion of judicial estoppel. “The doctrine of judicial estoppel precludes a

party from adopting a position inconsistent with one that it maintained successfully in an

earlier proceeding.” Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex.

2008). In response to Simona’s motion for summary judgment, Nikki argued that Simona

had not pled judicial estoppel and therefore could not assert it for the first time in her

motion for summary judgment. See TEX. R. CIV. P. 94 (listing “estoppel” as an affirmative

defense that must be specifically pled). We agree. Accordingly, we conclude that the

trial court could not have properly granted summary judgment based on Simona’s

assertion of judicial estoppel.




                                             23
D. Is Nikki Entitled to Rendition of Judgment?

      Finally, Nikki requests that we render a judgment in her favor; however, we deny

the request because Nikki’s no evidence motion for summary judgment does not support

rendition of a judgment. See TEX. R. CIV. P. 166a(i). In reaching this conclusion, we have

considered only the evidence that Heather and Simona produced in response to Nikki’s

no evidence motion for summary judgment. See id. As noted above, Nikki’s motion was

in form and substance a no evidence motion for summary judgment. See id. It did not

reference any evidence, such as Dr. Cole’s report, which was attached only to Nikki’s

response to Heather and Simona’s traditional motions for summary judgment. Therefore,

the issue on appeal is whether Heather and Simona produced some evidence sufficient

to raise a genuine issue of material fact as to Nikki’s sex being male. See Merriman v.

XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013) (“No-evidence summary judgments

are reviewed under the same legal sufficiency standard as directed verdicts.”).

      As set forth above, the summary judgment evidence produced by Heather and

Simona does not include any expert testimony. Although we have concluded that the

expert testimony offered by Nikki was sufficient to defeat Heather and Simona’s traditional

motions for summary judgment and expressed our belief that expert testimony is

necessary regarding the symptoms, diagnosis, and treatment of gender dysphoria, the

issue here is simply whether Heather and Simona produced some evidence to raise a

fact issue about Nikki being male during the marriage. See Western Investments, Inc. v.

Urena, 162 S.W.3d 547, 550 (Tex. 2005) (“Unless the respondent produces summary

judgment evidence raising a genuine issue of material fact, the court must grant the

motion.”). Heather and Simona’s evidence showed that Nikki had male sex organs during




                                            24
the marriage. In our view, this was enough to raise a fact issue about whether Nikki was

male during the marriage because a rational trier of fact could draw a reasonable

inference that Nikki was male based on her male sex organs. This inference could be

drawn without the assistance of expert testimony.         Accordingly, the evidence was

sufficient to defeat Nikki’s no evidence motion for summary judgment. See TEX. R. CIV.

P. 166a(i). We conclude that the trial court properly denied Nikki’s motion.

                                     VII. CONCLUSION

       For the reasons set forth above, we sustain Nikki’s first, fifth, and sixth issues

challenging the trial court’s summary judgment in favor of Heather and Simona.

Specifically, we sustain Nikki’s first issue because Nikki produced sufficient evidence to

raise a genuine issue of material fact with regard to her sex. We sustain Nikki’s fifth issue

because we conclude that Littleton is not controlling because it was subsequently

overruled by the legislature. We sustain Nikki’s sixth issue because summary judgment

cannot be upheld based on judicial estoppel. Although Nikki requests that we render a

judgment in her favor based on these issues, we conclude that such relief is inappropriate

because (1) a genuine issue of material fact exists with regard to Nikki’s sex and (2)

Heather and Simona produced sufficient evidence to overcome Nikki’s no evidence

motion for summary judgment. Accordingly, we render the judgment the trial court should

have rendered, which is a judgment denying Nikki, Heather, and Simona’s motions for

summary judgment. See Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848.

       We do not reach Nikki’s second, third, or fourth issues because the issues would

not entitle Nikki to any additional relief beyond reversal of the trial court’s summary

judgment. See TEX. R. APP. P. 47.1. Finally, because we conclude that there is a genuine




                                             25
issue of material fact regarding Nikki’s sex, we do not reach Nikki’s seventh issue

challenging the constitutionality of the Texas ban on same sex marriages. See TEX. R.

CIV. P. 166a(c); TEX. R. APP. P. 47.1.

       We reverse the trial court’s judgment and remand the case for further proceedings

consistent with this opinion.

                                               ___________________
                                               ROGELIO VALDEZ
                                               Chief Justice

Delivered and filed the
13th day of February, 2014.




                                          26
