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.