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Why Won’t Texas AG Greg Abbott Decide If Trans/Intersex Folks ‘Count’ As Changing Their Gender For Marriage?

Rather than clarify whether a transgender person can marry somebody of the opposite sex under Texas state law, Attorney General Greg Abbott refused to offer El Paso County guidance on what it should do. Does this show a softening of Abbot’s generally anti-gay ways?

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Abbot, who’s fighting to refuse a divorce to a lesbian couple, has an election to think about, so all these queer-related decisions must be absorbed in that context. So it’s curious to see Abbot go from a stance that defends the state’s wholehearted ban on same-sex marriage (which includes refusing to recognize marital status in order to grant a divorce) to today, where he won’t issue an opinion on whether trans and intersex individuals are considered to have changed their gender and now qualify as entering an opposite-sex relationship.

At issue, interestingly, is a situation involving a intersexed woman listed as male on her birth certificate, but who identifies as female, and wanted to marry another woman.

The request was made after two Hudspeth County women – Sabrina Hill and Therese Bur requested, and were denied, a marriage license in El Paso in February of this year. As proof of identification, Hill presented a birth certificate identifying her as a male, a court order approving his name change from a male to female, and an Arizona driver’s license with her new identity as a female.

Presented with conflicting documents, the El Paso County Clerk’s Office requested guidance from the County Attorney’s Office as to the eligibility of the applicants to obtain a marriage license.

Legal analysis revealed the existence of a legal gray area around this particular issue, raised by recent changes adopted by the Texas Legislature. Up until 2009, the identity and gender of a marriage license applicant was established through a birth certificate.

However, during the 81st Session, the Texas Legislature expanded the list of documents acceptable to establish proof of identity and age for purposes of obtaining a marriage license. Section 2.005(b) of the Texas Family Code lists the nineteen documents approved and, to make things more difficult, all are given equal legal weight. This is important for transgender individuals, as conflicting information on various personal documents may arise not from fraud, but because of sex reassignment surgery, and so transgender applicants should be able to self-identify their gender, as opposed to a court doing it for them.

So kudos to Abbott, who concludes this round being not offensive, but absent! And without any guidance, Hill and Bur did the unthinkable under Texas law: they got married.

[previous video report via]

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