- The Washington Times - Thursday, June 2, 2011

A transgendered woman will appeal a Texas court ruling that says she is not entitled to surviving-spouse benefits because her marriage to a deceased fireman was not legal.

The case is of national interest because of its implications for transgender unions and state laws forbidding same-sex marriage.

The case of Nikki Paige Araguz will be appealed “in a timely manner,” Houston-based Frye and Associates said Wednesday. The firm is led by Phyllis Frye, who personally changed from male to female many years ago and is a leader in transgender-law issues.

Ms. Araguz’s appeal follows a May 26 ruling by Wharton County District Judge Randy Clapp, which found that Wharton Volunteer Fire Department Capt. Thomas Araguz III “was not married” as of July 4, 2010, the day of his death, and “any purported marriage” between him and Ms. Araguz “was void as a matter of law.”

Soon after Araguz died fighting a fire, his mother and administrator of his estate, Simona Longoria, brought a lawsuit to void his August 2008 marriage to Ms. Araguz.

Araguz’s estate is estimated at more than $600,000. Ms. Araguz said that as his widow, she is eligible for some of those benefits and that Araguz demonstrated his intention for her to share in any inheritance by naming her as a beneficiary in one document.

Araguz’s family and ex-wife Heather Delgado said his entire estate should go to his two children with Ms. Delgado. They also said he had only recently learned that his wife was formerly a man, and they had been separated for the two months before his death.

Austin Nimocks of the Alliance Defense Fund, which supported the plaintiffs, said Judge Clapp’s ruling was based on a 1999 Texas appellate court ruling that said that a transsexual woman was “still a male” based on her male chromosomes. The appeals court “determined that gender is fixed, saying, ‘There are some things we cannot will into being. They just are,’ ” said Chad Ellis, an attorney for the plaintiffs.

Ms. Frye and her colleagues said they will argue that a 2009 Texas law trumps the 1999 court ruling. The 2009 law says that a court order showing that a name or sex has been changed is acceptable proof of identity for marriage, they said.

Ms. Araguz, who was born Justin Purdue, said her husband was well aware of her transsexual history, her HIV-positive status and her October 2008 sex-reassignment surgery.

“I am completely devastated by the court ruling,” she said. “With this ruling, I continue to be reminded of the bias that exists toward transsexual and intersex people.”