The Littleton Case 1999 or the Happy Marriage of transphobia and homophobia

The History of Marriage in the United States course has taught us that the institution of
marriage and its restrictions often highlights many deeper social issues concerning race, gender and
sexuality. Considering marriage as a simple contract of love and respect between two persons is an
illusion quickly shattered by the legal and public repercussions and institutional control it exposes
the spouses to. The case of Littleton v Prange demonstrates exactly how much public scrutiny is
allowed on what is often deemed a private affair and exactly how intrusive a court can be in
deciding on the validity of a marriage contract. One of the prevalent quotes at the beginning of the
course was by Nancy Cott:

So far as it is a public institution, it is the vehicle through which the apparatus of state can shape the gender
order. The whole system of attribution and meaning that we call gender relies on and to a great extent derives
from the structuring provided by marriage. (P. 3)

The case Littleton v Prange is a perfect illustration on how the institution of marriage shapes the
‘system of attribution’, because by determining the legality of the Littletons’ union, the court
effectively claimed the right to assess the spouses’ gender. The assessment of gender is concomitant
to the sexual orientation of the spouses, as, in deciding the gender of one member of the couple, the
court also decides what can be considered as a homosexual union, and what is ‘normal’
heterosexual behavior. Thus it is not only Christie Lee’s gender that is being strutinised, but also her
deceased husband’s sexuality, even though he always considered he was in a traditional
heterosexual marriage.

Christie and Jonathon Littleton on their

In our current climate of transphobia, it can ironically be inferred that the case is the perfect
legal illustration of the popular and faulty assumption that transgender women are not real women
and that dating them amounts to homosexuality.1This case has thus a certain relevance in current
debates about the transgender identity. It does so, also because the main counter-argument of many
detractors to the use of correct pronouns for trans men and women is the famous chromosome card.
Ben Shapiro, among others, has repeatedly insisted on the use of pronouns having to fit the
chromosomes of a person, hence calling is ‘biological pronouns’. The Littleton case displays the
origins of this argument, which had been repeatedly used to deny transgender folks the most basic
right and serves an essentialist discourse around gender which posits that you cannot change
‘nature’, or, in Chief Justice’s Hardberger’s extremely complacent words: “There are some things
we cannot will into being. They just are.” (6) It will be interesting to dissect the arguments used in
court and take the full measure of how much control by the state a marriage contract invites in
people’s lives if they have to resort to the justice system to settle their martial issues.
1 Natalie Wynn – Contrapoints – Are Traps Gay? https://www.youtube.com/watch?v=PbBzhqJK3bg
 The Littleton case had to go in depths with scientific matters because it could not easily
disprove the feminine identity of the Appellant. They had to resort to the final chromosome
argument established by Corbett v Corbett (1970). Hadberger purposefully chose to apply this
English case instead of one closer to home, M.T vs J.T in New Jersey, 1976 where a transgender
woman’s marriage had been found valid. The trial court had then respectfully stated:

It is the opinion of the court that if the psychological choice of a person is medically sound, not a mere whim,
and irreversible sex reassignment surgery has been performed, society has no right to prohibit the transsexual
from leading a normal life. Are we to look upon this person as an exhibit in a circus side show? What harm has
said person done to society? The entire area of transsexualism is repugnant to the nature of many persons
within our society. However, this should not govern the legal acceptance of a fact. (4)

The Appellate court had followed in this tolerant line:

If such sex reassignment surgery is successful and the postoperative transsexual is, by virtue of medical
treatment, thereby possessed of the full capacity to function sexually as male or female, as the case may be, we
perceive no legal barrier, cognizable social taboo, or reason grounded in public policy to prevent the persons'
identification at least for purposes of marriage to the sex finally indicated. (4)

Therefore, New Jersey had set the criteria of the sex reassignement surgery to validate the marriage
as being between a man and a woman. Yet the court of Texas chose to follow the Corbett case’s
judgment instead which listed a whole set of criteria to validate before being considered a woman/ a
man:

Based upon the doctors' testimony, the court came up with four criteria for assessing the sexual identity of an
individual. These are:
(1) Chromosomal factors;
(2) Gonadal factors (i.e., presence or absence of testes or ovaries);
(3) Genital factors (including internal sex organs);  and
(4) Psychological factors. (3)

This set of criteria was incredibly intrusive and allowed the court to dig through the whole medical
history of a person, forcing them to call their doctors and surgeons to testify in court. This is what
happened to Christie Lee who had her full transition process scrutinised, from the date she started
hormones (after having been forced to take testosterone to accept her assigned masculine identity)
to the series of surgeries she undertook and the recent administrative changes to her papers.

The validity of her amended birth certificate is also questioned, as the court argued that, as
there was no error at the time when an official decided that Christie Lee was a boy based on the
observation of her genitals, there was no legal reason to change it. Hence, the court could just take it
in its previous form, where it stated that Christie Lee was male. It could be argued that it was then
rather pointless for the court to ask the appellant to reveal such intimate medical details because, in
the end, none of the modifications she made to her body mattered. Only the chromosomal test and
original state of her birth certificate were retained to disprove her femininity. They also heavily
insisted on the artificial characteristics of her anatomy:

(4) Through surgery and hormones, a transsexual male can be made to look like a woman, including female
genitalia and breasts. Transsexual medical treatment, however, does not create the internal sexual organs of a
women (except for the vaginal canal). There is no womb, cervix or ovaries in the post-operative transsexual
female.
(5) The male chromosomes do not change with either hormonal treatment or sex reassignment surgery.
Biologically a post-operative female transsexual is still a male.
(6) The evidence fully supports that Christie Littleton, born male, wants and believes herself to be a woman.
She has made every conceivable effort to make herself a female, including a surgery that would make most
males pale and perspire to contemplate.
 (7) Some physicians would consider Christie a female;  other physicians would consider her still a male.   Her
female anatomy, however, is all man-made. The body that Christie inhabits is a male body in all aspects other
than what the physicians have supplied. (6 my italics)

So, in other words, transwomen are not real women. It is fascinating how many criteria had to be
used before actually disproving her femininity, since she had the genitalia, hormone levels, social
and psychological life of a woman. As Riley J Dennis argues in her video 2, biological sex itself is a
social construct; if one has to analyse a set of traits, ie; chromosomes, genitals, gonads, hormones
and secondary sex characteristics (like breast or facial hair), then post-op transwomen fulfill three
fifths of the criteria. How comes that not fitting in just one or two of these criteria fully disqualifies
an individual to be considered one or the other sex?

The fact doctors even have to observe so many concurring criteria to determine a person’s
‘biological sex’ stems from the binary bias that influenced scientific research into gathering and
interpreting this data in order to prove the binary.3 Anne Fausto-Sterling, in her book Sexing the
Body argues that no man nor woman fits all these criteria perfectly, as they are all a matter of
degrees or spectrum (ie, hormone levels fluctuate, men and women all produce both estrogens and
testosterone, genitalia come in all shapes and sizes, secondary sex characteristics do not all develop
in the same way for each individual, etc.) than clear binaries; there simply is too many variations in
‘nature’ to classify it in two neatly divided categories. If one only retains the main argument of
chromosomes that ‘do no change’, ie, XX for a woman and XY for a man, then it is again very easy
to undermine the supposition of a strict binary as some people have XY chromosomes but a female
body (in case of Androgen Insensitivity Syndrome), some only have an X chromosome (Turner
Syndrome) and others have XXY chromosomes (Klinefelter syndrome); where would these people
fit, were they to have their marriage ‘scientifically’ questioned in a Texas court? Ultimately,
‘science’ is supposed to discover objective natural elements but constructs and interprets them
according to a social subjectivity; it constructs an homogenous reality of ‘male’ opposed to ‘female’
from widely heterogenous elements. As Natalie Wynn said:
Now if you’re aware of all of this and you still want to insist on strictly binary sexual categories, then you are
trying to force reality to fit your preconceived conceptual scheme, instead of adapting your concepts to fit
reality. And that is what bad science looks like. 4

At the time, these ethical issues about the scientific research around sex and gender was not as
developed, and Chief Justice Hardberger could decide he was not going to risk entering these
‘untested and unknown waters’ even as he knew that his binary reasoning could easily be trumped
by the existence of intersex people:

I note, however, that “real difficulties” will occur if these three criteria [chromosomal, gonadal and genital
tests] are not congruent.” Corbett v. Corbett, 2 All E.R. 33, 48 (P.1970). We must recognize the fact that, even
when biological factors are considered, there are those individuals whose sex may be ambiguous. See Julie A.
Greenberg, Defining Male and Female:  Intersexuality and the Collision Between Law and Biology, 41 Ariz.
L.Rev. 265 (1999). Having recognized this fact, I express no opinion as to how the law would view such
individuals with regard to marriage. (7)

Luckily for Hardberger, Littleton was not born with ambiguous sex characteristics and the officials
efficiently inscribed ‘male’ on her birth certificate, not knowing exactly what trouble would arise
from this statement. Therefore an individual AMAB (assigned male at birth) could not marry a man
because it amounted to a same-sex union even though it would be considered by any exterior
witness as a traditional heterosexual union (since, in everyday life, people cannot see a person’s
chromosomes).
2 Dennis, R-J. Transwomen are not “biologically male” https://www.youtube.com/watch?v=eWVRzGMVXbM [22-
04-19]
3 A. Jaunait Introduction aux Etudes sur le Genre ed Boeck Sup (2012)
4 Natalie Wynn – Contrapoints – What is Gender? https://www.youtube.com/watch?v=b_uEXzqW43c (05:19)
 By opposition, the possibility to create an ‘apparently’ homosexual marriage through this
arbitrary rule of birth certificate/chromosome was actually brought up in the ‘Other Authorities’
section of the case report and deemed problematic:

In an unreported case, a court in New Zealand was convinced that a fully transitioned transsexual should be
permitted to marry as a member of his new sex because the alternative would be more disturbing. See Mary
Coombs, Sexual Dis-Orientation:  Transgendered People and Same-Sex Marriage, 8 uCLA Women's L.J. 219,
250 & n. 137 (1998) (citing M. v. M. (unreported) 30 May 1991, S.Ct. of NZ).   That is, if a post-operative
transsexual female was deemed a male, she could marry a woman, in what would to all outward appearances
be a same-sex marriage. Id. The question would then become whether courts should approve seemingly
heterosexual marriages between a post-operative transsexual female and a genetic male, rather than an
apparent same-sex marriage between a post-operative transsexual female and a genetic female. (5 my italics)

So the question of ‘appearances’ was thought to be more important in New Zealand. Interestingly
enough, the dogmatic insistence on applying binary gender and sexuality labels when talking about
transpeople highly confuses and complicates matters. Unfortunately for Christie Lee, the
‘appearance’ of a traditional heterosexual marriage, conform in every way to the normative
expectations of the Defense of Marriage Act (1996) – even though it was not even enforced at the
time of her wedding and thus applied retroactively – did not suffice. The chromosomal factor
prevailed and the Littletons’ marriage was considered as a same-sex partnership, actually making it
legal for ‘seemingly’ homosexual marriages to be legal. According to Engel and McCann, this is
exactly what the precedent of Littleton allowed in Texas a few years later:

Littleton is also indicative of the extent to which the courts’ confusion over how to determine sexual identity
can lead to somewhat unexpected results. Littleton relied upon the designated sex at birth to determine sexual
identity. As two lesbians discovered recently, however, this means that, under Littleton, a male to female
transsexual may legally marry another female in Texas. Interestingly enough, the marriage received the
blessings of the president of the Texas Conservative Coalition, which ordinarily opposes same sex marriage,
because, anatomy aside, “[t]hey are legally a man and a woman” (Kurtz 2000).5

As the lesbian couple attempted to re-appropriate this case to make some legal progress around
same-sex marriage, it was simply used by the Texas Conservative Coalition to once again deny the
femininity of a transwoman. The birth certificate was used to validate this marriage, because it turns
out that the suggestion of genetic testing was actually illegal:

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. 6

So, despite her birth certificate, there was a slight chance that Littleton’s marriage was in fact legal
under this arbitrary rule, because XY, XX or XXY chromosomes are not that rare, according to the
same article:
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 sexchromatin test is supposed to reveal
whether the athlete is XX (female) or XY (male). Inconsistencies immediately surfaced. (...)

5 Engel, D. and McCann M. Fault Lines: Tort Law and Cultural Practice (150)
6 http://web.archive.org/web/20080513071859fw_/http://christielee.net/saen2.htm
 "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. 7

So pushing this decision to the conclusion of its own absurd logic, many marriages, if they were to
be assessed in terms of chromosomes, would actually have been illegal in Texas. Thankfully, not
every couple had to suffer this amount of biological scrutiny, or it would quickly prove the
inapplicability of such a criterion. At this point, it is necessary to remember that the whole case
started because a widow simply wanted to sue her deceased husband’s doctor for malpractice. The
questioning of her being a valid surviving spouse quickly escalated into extremely intrusive
discussions about the determination someone’s identity and the almighty power of courts in
assessing it according to a set of arbitrary criteria, the application of which were crudely degrading
and humiliating for the appellant. At the time, Christie Lee’s attorney, Frye had justly declared:

We’re talking about philosophical questions of how we define ourselves and how much the state is allowed to
interfere in a decision that is both medical and intensely personal.8

To add to their previous arguments about the chromosomal sex and amended birth certificate
validity (which was a point of dissent for Judge Lopez), the court lengthily – and pompously –
pondered at the lack of legislation concerning the case of ‘transsexual’ marriages and refused to
‘create law’:

It would be intellectually possible for this court to write a protocol for when transsexuals would be recognized
as having successfully changed their sex. Littleton has suggested we do so, perhaps using the surgical removal
of the male genitalia as the test. As was pointed out by Littleton's counsel, “amputation is a pretty important
step.” Indeed it is. But this court has no authority to fashion a new law on transsexuals, or anything else. We
cannot make law when no law exists: we can only interpret the written word of our sister branch of
government, the legislature. Our responsibility in this case is to determine whether, in the absence of
legislatively-established guidelines, a jury can be called upon to decide the legality of such marriages. We hold
they cannot. (5-6)

Yet, again, in the presence of a New Jersey, somewhat recent precedent whereby a ‘transsexual
marriage’ had been deemed valid (no law applicable for the case either), the choice not to follow it
rested entirely with the Chief Justice. Here the constitutional division of power permitted the court
to drop all responsibility in their own decision, leaving it for the ‘legislature’ to regulate these
matters. But it is not so; a decision can overturn a statute, as the case U.S vs Windsor (2013)
proved, by challenging the legal definition of a legal union as set by the homophobic Defense of
Mariage Act (1996). So the power was in the court’s hands but, unfortunately, the case did not even
make it to the Texas Supreme Court. Things changed a decade after this case, and since 2015, the –
in itself already insulting claim – that a transgender woman and a man form a same-sex couple

7 http://web.archive.org/web/20080513071859fw_/http://christielee.net/saen2.htm
8 Dahir, M. ‘Genetics vs Love’ The Advocate10-10-2000 (25)
would not nullify the union anymore. And, for the specific case where such a couple would marry,
the Texas courts cannot cancel their marriage since 2014:

Earlier this year [2014] in February, the 13th District Court of Appeals in Corpus Christi issued a landmark
opinion in favor of Houston trans widow Nikki Araguz, ruling that Texas must recognize the marriages of trans
people. The ruling could have had an impact on Van De Putte's [Littleton remarried] case had it come years
earlier. 9

This case thus stood at a strange intersection of homophobia and transphobia; a same-sex
marriage was simply being determined a nullity, like no marriage had even taken place and to deny
the femininity of a transwoman by implying hers was a same-sex marriage was an extremely violent
stance. Indeed, the display of their transition and malevolent interrogation that these women faced
in all the cases cited as to whether or not their partner in fact knew about their transition put them in
a perpetual state of suspiciousness. They also had to fit the narrowly defined diagnosis of
‘Transsexuality’ because, at the time, it was still perfectly fine to consider someone’s gender
identity as a mental illness. The excessive pathologisation of transfolks was thus overtly used and
abused in the legal context. Choices that are deeply personal and bound to only concern the
intimacy of a couple and their sexuality are coldly listed, dissected and questioned for cases.
Amazingly, even the person’s lifelong sexuality (“M.T. dated men all her life.”) is considered as a
proof of her identity, conflating a person’s sexual orientation and gender identity in a truly
heteronormative way. One of doctors in a case goes so far as to attest the “good cosmetic
appearance” of the wife’s vagina, no matter how little legal purpose it serves. In courts, the
supposed division between the private sphere and the public sphere has no meaning, and judges can
require anything to be laid bare and examined.

These cases also introduce the question of the determination of sex and gender in American
society, as is obvious from the various criteria imposed (as previously discussed) and the crude
insistence on the artificial nature of these MtF transitions. It effectively infered that there is a
hierarchy between cis- and trans-individuals. The sub-standard category of men and women who
were ‘man-made’ were thus logically refused the right to lawful marriage back then and are still
considered somewhat lesser nowadays. The fact that surgeries and hormone therapies are listed in
details actually borders on voyeurism from the courts because even post-operative, fully-
transitioned ‘transsexuals’ supposedly do not have the required chromosomes anyway and only their
birth certificate (ignoring any amendments) is valid to assess their gender. The only case where the
trans-woman had not had bottom surgery was deemed even easier to settle, because the lack of a
vagina – that would not grant her a female status in any case because it is ‘man-made’ – was
prohibitive. Now, it is actually commonplace for cis-women to have cosmetic surgeries (like breast
augmentation or labiaplasty), to take the contraceptive pill or to be on post-menopause hormonal
therapy. So in practice, they have the same ‘artificial’ amount of synthetic hormones and surgical
work done as a trans-woman yet their femininity is never deemed ‘man-made’ or less real.
Likewise, a lot of insecure or aging cis-men take testosterone complements or injections to boost
their arbitrary ‘masculine’ attributes without their manhood being considered artificial10. This
reveals the double-standards when it comes to assessing people’s gender in western society.

The conclusion that can be drawn from these cases is that intimacy, couple life and marriage
was ultimately a very risky attempt for trans-folks prior to 2014 in Texas, as the entire contract, with
the emotional engagement and relationship history it officialised, could be canceled as though it had
never existed by exposing their transition publicly in court. The New Jersey case had actually been
set off by the husband, who after living with a woman for many years, tried to cancel the wedding
by proving that she was not a woman at all so that he would not have to pay ‘maintenance and
9 http://www.qsanantonio.com/christie-lee.html [consulté le 26-04-19]
10 Paul B. Preciado Testo-Junkie ed. Grasset Fasquelle (2008)
support’ to his ex-wife. Therefore, if her femininity was satisfying enough at the time of the union,
it suddenly no longer was when it came to financial support after separation. The amount of
scrutiny one exposes oneself to in engaging in marriage is a serious risk for anybody, but in case of
a transition, it could, in those years, amount to a public shaming (due to media coverage) and an
entire panel of judges misgendering the person, denying their identity altogether and telling them
their union has no legal value.

The power of the state over its citizen’s union and gender in the U.S has thankfully
diminished since 1999 and progress still has to be made to ensure that no intrusive procedure such
as the one Christie Lee endured ever takes place again. Marriage as an institution, because of the
rights and duties it endows the individuals with is questionable for the very public scrutiny it allows
in exchange for these rights and duties.
 Selective bibliography

Primary Sources

Littleton vs Prange 27-10-1999 Court of Appeals of Texas, San Antonio Online at:
https://caselaw.findlaw.com/tx-court-of-appeals/1079164.html

Pesquera, A. "Lawyer ponders effects of transsexual's case". San Antonio Express-News 08-04-2000
Online at: http://web.archive.org/web/20080513071859fw_/http://christielee.net/saen2.htm.

Dahir, M. “"Genetics vs Love” The Advocate 10-10-2000 pp.25-29

www.christielee.net archive online at:

Littletons’ Wedding Picture (1989) found at https://transgriot.blogspot.com/2009/08/littleton-v-

Secondary Sources

A. Jaunait Introduction aux Etudes sur le Genre ed. Boeck Sup (2012)

Dennis, R-J. Transwomen are not “biologically male”

Fausto-Sterling, A. Sexing the Body ed. Basic Books (2000)

Wynn, N. – Contrapoints – What is Gender? https://www.youtube.com/watch?v=b_uEXzqW43

Engel, D. McCann M. Fault Lines: Tort Law and Cultural Practice ed. Stanford University Press
(2009)

Paul B. Preciado Testo-Junkie ed. Grasset Fasquelle (2008)