Robertson v. Scott was First: Response to Araguz Ruling
by Eric Gormly
The February 13, 2014 decision by the San Antonio Court of Appeals, holding that a transgender woman had certain rights as the widow of a deceased firefighter, was good news indeed. Not just for the transgender community, or the broader LGBT community, but for all of us. The woman who brought the suit, Nikki Araguz Loyd, was justifiably elated over the decision.
As an attorney with a specialization and LGBT rights, I was especially interested in and heartened by this decision.
The San Antonio Express-News covered the story, and repeated the claim made by Ms. Araguz Loyd that this was the first decision in the state of Texas recognizing transgender marriage. While her exuberance is understandable, her statement was not entirely accurate. The first decision lending support to transgender marriage was Robertson v. Scott, Cause No. DF-10-16083, rendered on November 21, 2011, by the 255th District Court of Dallas County, Texas. Rebecca Robertson, a genetic woman, wanted to end her marriage of more than 10 years with James Scott, a transgender man. On advice of legal counsel, rather than file for divorce, Ms. Robertson filed a petition to declare the marriage void, based on the state's refusal to recognize same-sex marriage.
(Note: Ms. Robertson later said she regretted following her lawyer's advice not to pursue a divorce. She and Mr. Scott have reconciled since, and remain close friends.)
After Mr. Scott filed a counter-petition for divorce, the other side took what had become the standard strategy in these cases. They filed a motion for summary judgment, or MSJ, which maintained they should not even go to trial because, as a matter of law, the marriage was void ab initio - that it never existed in the first place.
Prior to this case, every time such an MSJ had been filed in a transgender divorce, the court hearing the case upheld the MSJ and declared the marriage void. However, all of these decisions had been based on faulty reasoning, and the transgender spouses fighting the MSJ had relied on incorrect or incomplete arguments.
Mr. Scott and his attorney were able to develop new arguments, present old arguments in a more effective and comprehensive manner, and show the prior decisions were countered both by state and federal law.
The judge hearing the case, the Hon. Lori Hockett, took the time to read the arguments in the MSJ, Mr. Scott's response, their rebuttal to Mr. Scott's response, and Mr. Scott's surrebuttal to the rebuttal.
On November 21, 2011, Mr. Scott became the first transgender spouse to overcome an MSJ in support of a petition to declare the marriage void. By ruling that the counter-suit for divorce could not be dismissed as a matter of law and that the action should proceed to trial as a divorce, this became the first time in which a court recognized the validity of a marriage involving a transgender spouse.
However, this correction of the record should not detract in any way from the importance of the San Antonio Court of Appeals' decision supporting the rights of Ms. Araguz Loyd as a widow of the fallen firefighter.