- The Washington Times - Tuesday, August 10, 2010

Gay marriage aside, can someone born a man also be eligible for the rights of a wife and a widow?

That is what courts in Texas are trying to determine in the case of Nikki Araguz, a transgendered person who was born as Justin Purdue and is being barred from spending or collecting the death benefits of her husband, Capt. Thomas Araguz, a 30-year-old firefighter killed in the line of duty July 4.

The case, which transgender advocates hope will result in the overturning of a Texas law that says a person’s sex is defined at birth, immediately concerns about $600,000 in survivor benefits, with Nikki Araguz on one side and Simona Longoria, the mother of Capt. Araguz, on the other.

Mrs. Longoria is arguing, on behalf of her grandchildren, that Nikki Araguz was born a man and that since Texas defines marriage as the union of a man and a woman, the marriage is void and she has no rights to spousal and survivor benefits.

Depending on whether the union is recognized as legal, Nikki Araguz could be denied any benefits or could receive up to $300,000, said Chad Ellis, the attorney for Mrs. Longoria. The rest would go to the 6- and 9-year-old children whom Capt. Araguz had with his first wife, Heather Delgado.

The case has prompted charges and countercharges about deception and about whether Capt. Araguz knew that his wife was born a boy, and has the potential to break new legal ground in the definitions of “marriage” and “sex/gender.”

But Mr. Ellis is not interested in that.

“I’m not blazing new legal ground,” Mr. Ellis said. “This issue has already been decided. This is not a new concept. … They’re trying to push an agenda that’s bigger than the death benefits of Tommy Araguz and whether or not his children get this money.”

A hearing Aug. 16 will determine whether Mrs. Longoria will win her bid to be declared the executor of her son’s estate. The common-law rule is that, in the absence of a will, a married man’s widow oversees it. This dispute centers on whether Nikki Araguz is a widow.

The current precedent in Texas is a 1999 state court case, Littleton v. Prange, which says three factors determine a person’s gender at birth: gonads, genitalia and chromosomes. The Merriam-Webster Dictionary defines transgender as a person “who identifies with or expresses a gender identity that differs from the one which corresponds to the person’s sex at birth.”

Nicole Haagenson, a spokeswoman for Nikki Araguz, said the union between the two was clearly a valid marriage.

“They had a marriage license,” she said. “They have pictures and documents.”

At the time of Capt. Araguz’s death, however, the couple had been separated for months, and Nikki Araguz was interested in obtaining a divorce.

The case heated up last week, when Nikki Araguz produced e-mails purporting to show that Capt. Araguz was aware of his wife’s former identity as a male.

“There is no question that my husband knew exactly what was going on,” Nikki Araguz told reporters in Texas on video. “He was fully loving and accepting and compassionate to the medical condition that I was dealing with when we first met. This is less about money than it is about the civil rights of my husband and I to legally be recognized as we recognized each other and all of our friends and neighbors did as a heterosexual, male and female, married couple.”

Nikki Araguz’s legal representative did not return requests for comment to The Washington Times. But Phyllis Randolph Frye, a transgendered lawyer who is representing Nikki Araguz, told the Houston Chronicle that she hopes this dispute will overturn Texas’ definition of gender as fixed at birth.

“If the legal chips go where I hope they go, I hope that we can get Littleton overturned or rendered toothless,” she said.

Mr. Ellis, however, contends that Capt. Araguz didn’t know about Nikki Araguz’s former identity as a male until an April 28 deposition set up by Mrs. Delgado, the mother of their children.

Nikki Araguz’s past was brought to light during an unsuccessful run for mayor of Wharton, Texas, and Mrs. Delgado then brought it to the court’s attention in a dispute with her ex-husband over custody of their children. Nikki Araguz was on probation at the time for drug possession, a fact also mentioned in the custody dispute.

In court, Capt. Araguz clearly stated multiple times that he had no knowledge of his wife’s previous identity as a male. At that time, Nikki Araguz’s birth certificate also became public.

Nikki Araguz has “a rap sheet about half a mile long,” Mr. Ellis said. “We’re dealing with someone who has conned people all of her life.”

Ms. Haagenson said court testimony was unreliable.

“They both lied in the deposition, and they felt like that was the thing to do to protect his having custody of the children,” she said, adding that the e-mails clearly demonstrate that Mr. Araguz not only knew about his wife’s gender identification, but went to doctor consultations with her.

According to court documents, Nikki Araguz was born Justin Graham Purdue and changed names to Nikki Purdue in February 1996.

In the documentation presented in 1996 when Justin Graham Purdue became Nikki Purdue, she said, “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.”

Masen Davis, executive director of the Transgender Law Center, expressed sympathy for Nikki Araguz.

“It is our hope that Nikki’s relationship is recognized, and our heart goes out to her for the loss of her husband,” he said.

Shannon Price Minter, legal director for the National Center for Transgender Equality, said the national push for gay marriage has unintentionally hurt transgendered people and resulted in cases like this.

“I think it’s very unfortunate that, perhaps because of the visibility of lesbian and gay couples seeking marriage, that transgendered people have been caught up in that frame and have been hurt by that and have actually, in some respects, are more vulnerable now than they have been in the past,” he said. “I think it’s really only in the past few years that we see pretty ugly cases like this coming up because people are, I think, exploiting homophobia.”

But Bryan Fischer, director of issue analysis at the American Family Association, called the whole dispute ridiculous, but unsurprising, given the culture’s confusion about sex, as also shown in debates over gay marriage and homosexuality.

“We think that our public policy ought to be guided by science and biology, and not by political correctness,” he said, noting that gender is a biological reality and not a choice or a role one plays, as contemporary gender theorists maintain.

“This case just certainly indicates how complicated and bizarre things get when you simply ignore the biological reality that this individual is a man,” he said. “He’s a male in every cell of his body. His DNA has been male from the moment he was conceived and will be until the day he dies.”

Mr. Ellis said his client is distressed that the case’s focus has veered away from her grandchildren and her son’s heroic death. He died fighting a massive fire at an egg farm near Boling that took 150 firefighters to extinguish.

“Simona Longoria is not asking for a dime,” Mr. Ellis said. “She’s only doing this for the children.”

“She had to make a very difficult decision. … She knew if she did this what would happen; that instead of Tommy being a hero in newspapers throughout Texas, it would be Tommy that was married to Nikki Araguz.”

• Kathryn Watson can be reached at kwatson@washingtontimes.com.

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