Gender Identity on Trial in Divorce Court
Couples in divorce court often disagree on a whole host of issues – who should get the house, how much child support a parent must pay, who gets custody of the dog. But when James Allan Scott and Rebecca Robertson, his wife of 12 years, wound up in divorce court, there was a much more profound disagreement: whether James is a man or a woman.
James is transgender. Though he was born with female genitalia he never identified as a girl, even as a child. As he testified in an affidavit submitted to a Texas Family District Court, “I distinctly remember telling a friend when I was four that I was going to grow up to be a man. I hated wearing girls’ clothing, preferring boys’ shirts, jeans and shoes, and even suits and ties. That was always a fight with my mother because I wasn’t a little girl.” As he grew up, James always felt like a man trapped in a woman’s body. In the mid-1990s – with Rebecca’s full knowledge and support – James transitioned to living as the man he knew himself to be. He underwent prescribed medical and psychological treatment for gender reassignment and legally changed his name and identity documents – driver’s license, passport, Social Security card, and birth certificate – to reflect his male identity. He and Rebecca received a legal marriage license in the state of Texas and exchanged vows in Bethany Presbyterian church in Dallas on Dec. 20, 1998. They held themselves out to the world as a married heterosexual couple, including on their tax filings, on which they presented themselves as “married, filing jointly.”
Rebecca and James split up in 2010. In 2011, Rebecca sought to have the marriage declared void, arguing in her motion for summary judgment that James is female and Texas does not recognize same-sex marriage, thus there never was a marriage. James countersued for divorce. On Nov. 21, 2011, Dallas County Judge Lori C. Hockett handed James a first-round victory when she denied Rebecca’s motion for summary judgment—refusing to void the marriage and allowing the dispute to proceed as a divorce. The ruling was especially meaningful for James, who is disabled and now lives on a very small fixed income, because Rebecca was the primary breadwinner in the household. Had Judge Hockett voided the marriage, James would have no right to an equitable division of the assets the couple accumulated during their 12 years together and he would have been left with almost nothing.
But James’ fight to have his marriage recognized and receive the protection of Texas’ divorce law is far from over: Rebecca recently filed a motion for a jury trial, which means James will likely have to continue to prove in court that his marriage is valid. Essentially, it is his gender identity that would be on trial; Rebecca, in fact, filed a motion to compel James to submit to a physical examination “for the purposes of determining his sex or gender.” His case underscores just how vulnerable transgender people can be in the family court system, where medical history and treatment, legal documentation, and lived experience can simply be tossed aside because the law has yet to catch up with the reality of transgender people’s lives. Indeed, Rebecca relied heavily on the 1999 ruling in Littleton v. Prange, in which the San Antonio Court of Appeals upheld a trial court ruling that Christie Littleton, a transgender woman, had no standing to sue her late husband’s doctor for wrongful death because she had been born a man, therefore their marriage was invalid.
James and his lawyer Eric Gormly – an attorney who specializes in LGBT issues – argue, among other things, that in Texas, “there exists no clear test, legislative or otherwise, of how to make a legal determination of a person’s sex for the purpose of marriage.” As James points out, “When [Rebecca and I] went down for the marriage license, I was not asked, ‘Well, are you transgender?’” In fact, he presented accepted documents for obtaining a marriage license in Dallas – a valid driver’s license (from the state of Texas, in his case) and his Social Security card, both of which identified him as male.
Transgender people “shouldn’t have to go through something like this if we present papers that show we’re just like anybody else,” he says of his legal battle.
There are other social and emotional costs for transgender people who find themselves having to defend their gender identity in the family court system. Many people choose to keep their transgender status private out of fear of being stigmatized, discriminated against or victimized by violence, all of which disproportionately affect transgender people. Prior to Rebecca’s efforts to have the marriage voided, James, an Iowa native who moved to Florida in his teens, was enjoying a very private life. He had moved from Florida to Texas in 1996 partly so he could transition and begin his life as a man where nobody knew him and he’d be less likely to encounter problems related to being transgender. Beside Rebecca, he says the only people who knew he was transgender were the staff people at his doctor’s office. “I just wanted to live my life quietly,” he says. “If I was asked, I wouldn’t deny [being transgender], but nobody had an inkling that they needed to ask.” But because of the court proceedings, his transgender status, along with his birth name and personal medical history are part of the public record, effectively outing him as transgender against his will. Had Rebecca simply agreed to a divorce rather than trying to have the marriage voided, James, 58, likely would have avoided such public scrutiny.
But having been thrust into the public spotlight, James has become more comfortable sharing his story in the hope that public education can bring about a change in the family court system. “I didn’t start out to be an activist,” he says. “As a matter of fact, I just wanted to live my life very quietly, but we need people to stand up and say, ‘This is who I am.’ … We need to be in front of other people talking about it.”