By Adolfo Pesquera
Express-News Staff Writer
A recent appellate court opinion intended to legally define what is a man and what is a woman will create havoc throughout society unless it is replaced with a better definition, a Houston trial attorney said.
The majority of the medical community and an international court agree with her.
A San Antonio transsexual's loss of standing in a wrongful death suit against her late husband's doctor appeared to be a fascinating but isolated situation with little significance outside a small community of people who choose to have their sex surgically altered.
But as the case has drawn attention, said her attorney, Phyllis Frye, it is becoming more apparent that the implications can touch everyone.
Christie Lee Cavazos Littleton, now 48, underwent sexual reassignment in 1979. Ten years later, she was injured in a car accident and had to go to Lexington, Ky., for bladder reconstruction.
There she met Jonathon Mark Littleton, an auto assembly line worker. While she was recovering, the two became friends, fell in love and obtained a marriage license in Kentucky. But in 1996, Mark Littleton became ill and died.
"It's a funny thing," Littleton said. "When I met my husband, he was taking care of me. Holding my hand in bed, changing my bandages. We met and ended it the same way."
Littleton's wrongful death suit against the doctor for medical malpractice was thrown out of 288th District Court on the grounds that Littleton was really a man and same-sex marriages are illegal.
The 4th Court of Appeals upheld the trial court's decision in October. In its opinion, Chief Justice Phil Hardberger sided with the doctor's insurance company and said, "Male chromosomes do not change with either hormonal treatment or sex reassignment surgery. Biologically, a post-operative female transsexual is still a male."
In March, the Texas Supreme Court informed Littleton's attorney it would not hear her case. He told Littleton, then removed himself as her attorney. She missed a deadline for filing a motion to reconsider before she could hire Frye.
Frye was granted an extension Tuesday and has until April 18 to file a new motion.
"Every heterosexual involved in a wrongful death suit, a divorce, anything involving community property, insurance benefits, stands to lose something," Frye said.
"If this ruling stands, and right now it is the law of the land, attorneys will have to seek chromosome tests. If they don't, their client can turn around and sue them for malpractice."
Genetic testing would add to the legal cost, but under the present legal system it can't even be done. State law prohibits the use of genetic information by a state agency, including judges.
Littleton never was given a test to discover whether she was genetically a man. The court simply assumed she was because she once had male organs.
But it's not that simple. Just ask the international athletic community.
Allegations that certain countries were seeking unfair advantage in athletic competition by disguising men as women led to genetic testing for sex verification in 1967.
Known as the baccal smear, an athlete's mouth is swabbed, and a sex chromatin test is supposed to reveal whether the athlete is XX (female) or XY (male). Inconsistencies immediately surfaced.
In 1967, Polish sprinter Eva Klobukowska was eliminated from the European Cup, banned from competition and publicly humiliated worldwide, all because she had an XXY result, one chromosome too many to be declared a woman. A few years later, she became pregnant and gave birth to a healthy baby.
"One in every 400 competitors was eliminated in the Atlanta Olympic Games, even though there was nothing unusual about them anatomically," said Cheryl Chase, director of the Intersex Society of North America.
Three dozen medical conditions create sexual ambiguity in the human species, Chase said. These conditions affect between 1 percent and 2 percent of the general population, or in Lone Star terms between 190,000 and 380,000 Texans.
"If the Texas court's finding about who is eligible to marry is allowed to stand, many intersex people will not be allowed to marry anyone," Chase said.
The hard facts of science, said Brian Derrick, a biologist at the University of Texas at San Antonio who has been studying brain anatomy as a better indicator of sex, is that there are anatomical men with female chromosomes and vice versa.
That makes everyone suspect and the potential target of genetic testing.
"From a psychological and medical perspective, Littleton is a woman and always has been a woman," Derrick said.
Courts throughout the United States have rarely granted transsexuals the status they prefer.
The one notable exception was Renee Richards, the transsexual tennis star who in 1976 defeated the United States Tennis Association's attempt to ban her when the New York Supreme Court ruled there was "overwhelming medical evidence that (Richards) is now a female."
But outside the United States, and within the athletic community, sex definitions are changing.
Kristina Sheffield, a transsexual, sued the United Kingdom in the European Commission of Human Rights after she was repeatedly forced to identify herself as a male in judicial and commercial matters.
The commission ruled in 1997 that her privacy had been violated and noted that "there was a clear trend toward the legal acknowledgment of gender reassignment in ... Germany, Italy, the Netherlands, Sweden and Turkey."
Whichever way the Texas Supreme Court rules on Littleton, the case won't end there. The issue is too important, Frye said.
"I have an appellate attorney in Virginia waiting for my phone call," she said. "If need be, we'll take it to the U.S. Supreme Court."
The courts may be confused as to what Littleton is, but the widow and self-employed beautician goes on with her life confident that she must prevail.
"I'm a woman," Littleton said. "Anybody can see that's all there is to it."