Attorney sees
2 sides of law
By Karen M. Goulart
PGN Staff Writer
© 2000
Philadelphia Gay News
Phyllis
Randolph Frye was hoping to retire soon.
After 25 years as an out transgender activist and more than two
decades practicing law, she was looking forward to making space for the next
generation of community leaders. Instead she finds herself at the center of two
of the highest profile, and most complicated, trans-rights cases in the
nation.
One case left a client devastated, the other was cause for
celebration. But both require the other for any lasting judicial satisfaction.
Frye will participate in the fourth "International Congress on
Crossdressing, Sex and Gender," which will be held Oct. 5-8 at the Warwick
Hotel, 17th and Locust streets.
Frye took on the appeal of Christie Lee Cavazos Littleton.
In the course of a malpractice suit over the death of her husband,
Mark, Littleton reportedly was shut out of a settlement agreement because the
doctor's insurance company said she was a man. The court agreed.
Littleton had been through all the hoops of legally
"becoming" the woman she knew she was, had been living as a woman most
of her life, was legally Mark's wife for seven years. But the decision of San
Antonio's 288th District Court effectively wiped that all away. Presumably,
Littleton was born with male chromosomes, therefore, in the eyes of Texas law,
she was a man, and as such, her marriage was rendered invalid.
An appeal to the ruling was made to the Texas Supreme Court. Frye
suspected that the judges there, although conservative, would see the same
bigotry she saw at the core of the ruling.
"After the case was decided in October of '99. and I read it,
I thought this is such a bad law and it is so patently bigoted that surely even
the conservative elected Republican on the Texas Supreme Court will hear the
case," Frye said. "And even if they didn't, there wasn't a whole lot I
could do about it."
The Texas Supreme Court refused to hear the case March. But there
was something Frye could do about it.
The Texas Human Rights Foundation contacted Frye, seeking a lawyer
to take the case to the U.S. Supreme Court. Not involved in federal or
appellate law, Frye contacted trans attorney Alyson Meiselman of Maryland, who
agreed to take the case if Frye stayed as local attorney.
Frye and Meiselman sifted through it, looking for any remaining
legal remedies in Texas before appealing to federal court. They discovered there
was time to beg the Texas Supreme Court to extend the deadline for a
second appeal.
Frye decided at this time to take the opposite approach of
Littleton's previous lawyers. Where they hid Littleton from the media, Frye
wanted to put her in the spotlight.
But the second appeal was denied in May. Littleton hired Frye and
Meiselman to prepare another appeal in the case. Frye, Meiselman and a legal
team of local and national attorneys and academics filed the writ in July. A
response could come as soon as November.
Wicks marriage
Meanwhile, Littleton's case would prove a good thing for
another transgender woman.
Jessica Wicks had once hired Frye when Wicks corrected the gender
on her state identification. During the summer, Frye received a call from Wicks
asking for legal help: Wicks wanted to marry her lover, Robin. Frye was less
than eager to assist.
Jessica and Robin Wicks had gone to the county clerk's office in
Houston with copies of their original birth certificates. Having heard of the
Littleton case, and knowing that Littleton's gender had partially been legally
determined by her original birth certificate, the couple saw an opportunity to
be legally married because Jessica's birth certificate showed her to be male,
and Robin's said she was female. They had no luck.
According to Frye, the couple was told because they were two women,
that Jessica could not marry Robin, and because of the Littleton decision,
Jessica could not marry a man, either. It angered the very private couple enough
to contact Frye.
Frye decided to take the case, but only certain conditions.
"I said before you do this, there's a big conflict of interest
you have to understand, if I can get you married, fine, but I have to use the
celebrity and novelty of your issue to gain interest and focus media attention
on the wrongness of the Littleton decision," Frye said.
They agreed.
The media and the San Antonio county clerk's office were notified
in advance that Frye and the Wick's were coming Sept. 6 to get the license. The
strategy worked. The clerk was "as nice as could be," Frye said, and
gave the license without hesitation. The media were also on hand 10 days later
when Jessica and Robin Wicks celebrated their wedding.
With the precarious success of the Wicks' union, Frye is now
calling on couples to come to Texas to do the same thing. And has in the process
become aware of places where similar actions have already taken place.
"I've been trying to tell every one who is a transman and has
a gay boyfriend or transwoman and has a lesbian girlfriend, if they want to, to
take a vacation, come on down to Texas, get a license, wait three days, then get
married," Frye said.
Criticism
While Frye sees the Wicks case as advancing trans and gay
rights, her feelings are mixed as the U.S. Supreme Court ponders taking on
Littleton's appeal. Although there are many people, she said, who support her
work, there are some who view it as shameless promotion that sacrifices the
legal standing of some trans people for others.
"I'm getting a lot of nasty e-mail from previously closeted
post-surgical transsexuals because me and Allyson are standing up and fighting
the fight, trying to expose the Littleton case for the horrible thing it
is," Frye said.
Frye said the positive mail outnumbers the negative mail by a wide
margin, but she has been hurt by some of it, and angered that people are blaming
her instead of becoming active in their own communities.
Frye admits it's not a perfect solution, and that she's not sure
what to expect as a final outcome for the two cases. But she believes very
strongly that these actions had to be taken.
What she and Meiselman are hoping is that the Supreme Court says
that while legal sex is a valid jury question, it should be decided after
hearing all relevant facts, including up-to-date medical facts.
"My guess is [the marriages] may have to be litigated
somewhere down the road, but because that is a civil matter and not a criminal
matter, and the marriages were legal when they were formed, they should remain
legal," Frye said.
Frye explained to Wicks that if the Littleton decision is
overruled, the Wicks may have to defend their marriage.
It was a risk they were willing to take.
No gay help
More disheartening than the barbs of trans critics is the lack of
response from the gay and lesbian legal community to what she sees as an
opportunity to advance in the fight for gay marriage.
"The only reason I can figure is because some of these gay and
lesbian legal organizations are still carrying some transphobic baggage, they
refuse to accept that trans folks started the stonewall rebellion in 1969 and
they sure as hell don't want transgender folks to help them open the doors to
same sex marriage."
Whatever the decision of the Supreme Court, Frye said she is ready
to finally hit the sidelines. If the writ is denied she'll help out however she
can in taking the case to the Texas legislature. If it is accepted, it will be
Meiselman who does the arguing in court. She's more than ready to let the many
other trans activists step into the spotlight with "the wonderful
work" they're doing.
"In late December '99, I was getting ready to do the annual
newsletter ... when I didn't know the Littleton case was going to blow up, and I
was thinking, it's so neat to be in the position that I'm not needed," Frye
said with a laugh. "It's really nice not to be necessary anymore; it means
I did a really good job."
Source: http://www.epgn.com/PGN_News/pgn_news.html
PGN Editorial:
Texas two-step
Attorney
Phyllis Frye can see the irony of how a Texas law has both helped and harmed two
of her clients.
The trans-rights activist is at the heart of two ongoing legal
battles involving a Texas law that defines people by their chromosomes. This
law, of course, forever hinders trans residents, no matter their transitions.
Two of Frye's cases highlight the absurdity of this law. In one, a
women was declared to be a man - because she was born male - despite the fact
that she has been living her life as a woman and had a seven-year marriage to a
man. It's the chromosomes, a Texas court ruled.
The other case, using the above Littleton decision, takes advantage
of the chromosomes argument, and allowed two women, one of whom was born male,
to marry legally in Texas. It's the first time a same-sex couple has been
married legally in the Lone Star State.
Frye recognizes and appreciates the absurdity of this complicated
dance that, at once, challenges the ornery Texas statute and uses it. And if she
wins either, one of her clients will lose.
It's important to realize that at the heart of the law is a
fundamental disregard for trans people. When law bases a privilege - in these
cases, the privilege to marry - on the chromosomes one is born with, it excludes
gender-identity minorities. This population is then forever denied the right to
express themselves - to live freely. This law would rather they live a lie.
When you think about it, it's similar to a law preventing gays,
lesbians and bisexuals from living openly, a la "don't ask, don't
tell."
This is, of course, unacceptable, and Frye's quest in these
opposing cases points out the absurdity of the law.
While her and her clients' efforts are laudable, it's disappointing
that prominent gay and lesbian civil-rights organizations are not supporting -
at least not very loudly - these Texas cases.
Although they are distinct communities with varying goals and
problems, there are more similarities than differences among us. There should be
no pecking order for justice and equality.
Source: http://www.epgn.com/PGN_Editorial-Op_Ed/pgn_editorial-op_ed.html
If you surfed in from the Internet
directly to this page
and wish to view the entire Christie Lee Littleton website,
click HERE
Last revised: Sunday, October 01, 2000 08:09 AM