Understanding Transgender Marriage in Texas Law

HOUSTON - Nikki Araguz is the much talked about widow of a Wharton firefighter killed on the job.

She's a woman whose life started with a birth certificate that classified her as a boy, and now continues as a woman.

Since her birth, Araguz has had gender reassignment surgery, and that's all she needed in order to legally marry a man, according to a year-old amendment to the Texas family code.

"Texas law now says you can get a marriage license after a sex change," said Chris Tritico, FOX 26's Legal Analyst.

That's right.

In a state governed by traditionally conservative lawmakers, marriages involving a transgender partner are now legal.

But the issue is not clear cut.

In fact, just last week, Texas attorney general Greg Abbott declined to issue an opinion on a case involving an El Paso couple.

Sabrina Hill was born a male, is now a transgender female, and married to another woman.

When the couple wanted to marry, El Paso County wouldn't give them a marriage license, but Bexar county did, based on a 1999 court decision.

Darrell Steidley is Araguz's lead attorney.

When asked if he was waiting to see what Greg Abbott would do or say, Steidley said, "Yes, of course. We were interested to see what the response would be."

"I don't think he wants to jump into this political hot bed in an election year, that's what I think," said Tritico. "And that's a shame because that's why we elected him, to interpret and give us these rulings on these laws so we know how to operate. I think he is shirking his responsibilities, and it's a shame."

A spokesperson for Abbotts office says there is nothing unusual about his decision to decline giving an opinion when litigation is pending.

And right now, the Araguz case is in the court system.

But part of the reason the law is so unclear goes back to 1999, when a Texas court ruled a person could not change their sex for the purpose of marriage.

"In other words, you are what you were born," said Tritico. "So what we have here is couples (for example) who started out a man. (That person) now looks and appears to be a woman, but under Texas law, (they're) still a man, so (they) will marry this woman. So it appears we're marrying a same sex couple."

Transgender activists fighting for equal rights took advantage of that perception to prove a point.

They married as heterosexual couples, even if, much like the El Paso case, they didn't look the part.

"You have case law that says one thing," said Tritco. "And family code says another thing, and Texas constitution says we don't recognize same sex marriages."

Tritico says the 2009 amendment trumps the opinion of the court.

The Araguz defense team says that's good news for their case, even though Nikki married before the law was updated.

But as that battle continues, so do the questions.

"Somebody is going to file suit over this issue somewhere, somehow," said Tritico.