A three-judge panel of the Court of Appeals of Texas in San Antonio issued a new opinion on January 27, reaffirming a prior ruling issued on August 12 of last year, that a transgender man who had been parenting children adopted by his long-time former female partner lacked standing to seek custody and visitation rights because he didn’t assert such a claim shortly after the couple broke up. At the same time, the full bench of the Court of Appeals denied a petition for en banc review of the prior ruling, which conditionally granted a writ of mandamus sought by the children’s mother challenging the trial court’s jurisdiction over the case. In re Sandoval, 2016 WL 353010, 2016 Tex. App. LEXIS 754, 756, 758, 759. Justice Jason Pulliam wrote the new decision for the unanimous three-judge panel. Justice Patricia O. Alvarez, who was not on the panel, wrote a concurring opinion on the vote to deny en banc reconsideration. Justice Luz Elena D. Chapa, also not on the panel, wrote a dissent from the denial of en banc reconsideration, claiming that it was procedurally improper for the panel to have granted the writ. Justice Rebecca C. Martinez, also not on the panel, wrote a dissent as well, going further to disagree with the panel’s conclusion on the merits, arguing that the trial court correctly allowed the transgender man to maintain his suit.
At the heart of the case is the question whether a transgender man can bring a paternity action under the Texas Family Code, or whether standing to bring such actions is limited to sperm-producing men who could conceivably be the biological father of the children at issue.
Born a genetic female, Dino Villarreal “self-identified as a male for all of his adult life,” wrote Justice Pulliam in the panel opinion. “Dino moved in with [Sandra] Sandoval in 1994 and lived with her, and later the two children [who Sandoval had adopted in 2002 and 2004], until January 2011 when Dino and Sandoval separated.” Dino continued to have contact with the children until sometime in 2013, after which Sandoval refused further contact. Dino filed a petition to adjudicate parentage in December 2013, almost three years after the parties had split up. Sandoval objected to Dino’s standing, and the trial court agreed with her, dismissing the petition, a ruling that was affirmed by the Court of Appeals on March 11, 2015. Sandoval successfully argued that when the petition was filed Dino was legally a woman and thus did not fit into any of the categories under the Texas Family Code conferring standing to initiate a parentage adjudication.
However, on January 3, 2014, shortly after having filed that petition, Dino had instituted a separate action, eventually obtaining an Order Granting Change of Identity, which “acknowledged his name change from Diana to Dino and included the following finding: ‘3. Petitioner’s sex is male.’ Following the trial court’s findings, the order concluded, ‘IT IS ORDERED that Petitioner’s identity is changed from female to male.” This was an unopposed action, brought under a 2009 statute that authorized Texas courts to make gender declarations in cases of transition.
Dino then filed a second petition to adjudicate parentage under Texas Family Code Ann. Sec. 102.003(a)(8), which authorizes a suit by “a man alleging himself to be the father of the minor children,” asserting that he was now filing as a “man” and thus had standing. He sought temporary orders appointing him joint managing conservator of the two minor children and equal periods of possession and access. Sandoval filed a new plea challenging the court’s jurisdiction. This time, the trial court sided with Dino, finding that because he was now legally “male,” he could proceed under the provision authorizing such an action by “a man alleging himself to be the father of the minor children.” The trial court issued a temporary order giving Dino visitation rights with the children while the case was pending, while Sandoval petitioned the court of appeals for a writ of mandamus, challenging the jurisdictional order.
Under normal rules of Texas procedure such a writ would be out of order, since the trial court’s order was not a final judgment in the case and Sandoval could obtain relief by litigating the case to a final order and then appealing in the normal course if Dino had won. The panel decided, however, that this was not an ordinary case, quoting a 2014 ruling by the Corpus Christi branch of the Court of Appeals, In re First Mercury Ins. Co., 437 S.W. 3d 34, recognizing “several exceptions to this general prohibition against mandamus review of a trial court’s order denying a plea to the jurisdiction. In short, a remedy by appeal may be an inadequate remedy when there are extraordinary circumstances present.” “We conclude,” wrote Justice Pulliam, “that eventual review of the jurisdictional question on appeal from a final judgment would be inadequate in this instance. Mandamus review is therefore appropriate.”
Referring to the statutory scheme for litigation concerning parent-child relationships, Pulliam observed that “standing to file suit under the Texas Family Code is limited. A suit to establish a parent-child relationship may only be brought by certain individuals falling within identified categories,” and that it was a question of “straight statutory construction of the relevant statute” to decide whether a petitioner had standing. Dino was relying on his status as a “man alleging himself to be the father of a child filing in according with Chapter 160.” Chapter 160 says that such a suit can be brought by “a man whose paternity of the child is to be adjudicated.” Texas courts have stated that standing must exist at the time the suit is filed and be maintained throughout the suit. This was the ground on which the court had affirmed dismissal of Dino’s first petition, which was filed before he obtained the gender declaration in the separate proceeding.
This time, Dino argued that he got the declaration that he is “male” before filing this second case, so he should be home free on standing, but the court disagreed. Justice Pulliam asserted that the 2009 statute authorizing the gender declaration was enacted to deal with the problem of marriage, in response to prior litigation where Texas courts had refused to recognize change of gender in determining who could marry whom. As far as this panel of the court is concerned, Dino’s gender change rendered him “male” for purposes of the state’s marriage law as it then was, but not for purposes of the Family Code provisions on standing to adjudicate parentage. “While the clear language of the Family Code recognizes such an order as sufficient to provide proof of Dino’s identity and age for purpose of obtaining a marriage license,” wrote Pulliam, “we conclude that it is not sufficient to adjudicate parentage under subsection 160.602(a)(3). . . If all that was required for standing was to be a man, then any man could maintain a suit to adjudicate parentage to any child. We do not believe that to be what the Texas Legislature intended.”
“In this case,” wrote Pulliam, “Sandoval’s children are adopted and there is no contention that Dino is the biological father. A man alleging ‘paternity’ is a man asserting standing as the biological father of the subject children.” He pointed out that relevant Texas Family Code provisions define “paternity index” and “probability of paternity” “in relation to the determination the likelihood that a man is the biological father of a child.” Even had Dino been identified male at birth and capable of impregnating a woman with sperm through intercourse or donation, he could not have made this “parentage” claim regarding the children at issue in this case whose procreation was accomplished by earlier biological parents prior to their adoption by his then-partner, Sandoval. “The only basis under which Dino attempts to assert that he has statutory standing as ‘a man whose paternity of the child is to be adjudicated,’ is that he acted as a parent to the children and provided actual daily care for them from the time of their adoption until his relationship with Sandoval ended in 2011. Dino’s status as a person with actual care, control and possession of the children may have conferred standing to file suit had he done so within ninety days of the date on which his actual care, control and possession of the children terminated” under Tex. Fam. Code Ann. Sec. 102.003(a)(9), but he waited much too long to avail himself of that provision. In other words, the court was unwilling to let Dino use Section 160 as a mechanism for giving any legal effect to a claim to de facto or equitable parental status. Pulliam asserted that since Texas had adopted a very specific statutory scheme governing standing, the court was limited to construing and applying those provisions.
The Court of Appeals panel conditionally granted the petition for writ of mandamus and directed the trial court to set aside its April 17, 2015, order that had denied Sandoval’s plea to the jurisdiction, so Dino’s petition was to be dismissed for lack of standing. An actual writ will be issued to the trial court if it refuses to comply. Presumably a dismissal would set up the case for Dino to file an appeal, which he would undoubtedly lose in the court of appeals, and he could then try to bring an appeal to the Texas Supreme Court. But this would undoubtedly stretch out for years during which he will be denied contact with the children, perhaps so long that they would no longer be minors once the case is concluded.
As noted above, while reaffirming its August 12 ruling, the court also denied a motion filed by Dino on August 26 for en banc reconsideration, which drew three separate opinions from judges who were not on the three-judge panel.
Justice Alvarez concurred, expanding on the court’s view of the limited effect of the separate court order declaring Dino to be “male.” She pointed out that that court order “does not mention the Texas Family Code or address its effect under the Texas Family Code,” which “defines ‘man’ as ‘a male individual of any age.’ The Texas Family Code does not, however, define the term ‘male,’” she continued, observing that when the legislature does not define a word, the court will apply its “ordinary meaning,” for which it usually looks to a dictionary definition. Reverting to the early decision by the Court of Appeals that had affirmed dismissal of Dino’s first petition, “we cited Webster’s Dictionary which defines ‘male’ as ‘an individual that produces small usually motile gametes … which fertilize the eggs of a female.’” Justice Alvarez asserted that this definition “has not changed and is controlling in this mandamus. Therefore, regardless of his possession of a court order changing his identity, Villarreal still does not meet the statutory definition of ‘man’ under the Texas Family Code.”
The judge also pointed out that Dino could have brought an action, as the panel noted, had he moved quickly after the parties split up. “By waiting until November of 2013 to file, Villarreal missed his opportunity because he could no longer meet the statutory requirement of having had care, control, and custody of the children for at least six months ending not more than 90 days before he filed his petition.” This argument is frustrating to read, since it seems clear that Dino would have perceived no need to file suit until his contact with the children was cut off by Sandoval in 2013, shortly before he filed his first petition.
Alvarez characterized the standing ruling in this case as “heart-wrenching and sad,” but said that “an appellate court is bound by the law and not emotions,” so she agreed with the decision to deny en banc reconsideration of the panel decision.
Justice Chapa dissented from the voting denying en banc reconsideration. She focused her argument on what she saw as a conflict between this ruling and prior rulings of the Texas courts about when it was appropriate to allow a party who loses a plea to jurisdiction to obtain interlocutory review of that decision. She argued that the cases relied upon by the panel majority to grant mandamus review were all distinguishable. “Absent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision or an intervening and material change in the statutory law, a panel should not ignore the prior holding of another panel of this court,” she argued. Thus, the panel should have denied the petition for mandamus review. She also rejected the panel’s conclusion that this case presented “extraordinary circumstances,” pointing out that there was lots of child custody litigation in the Texas courts, and this ruling could open the floodgates for mandamus petitions every time a trial court rejected a respondent’s claim that the petitioner lacked standing to seek custody.
Justice Martinez was the sole dissenter on the merits, writing a sophisticated argument engaging concepts of sex and gender and invoking Obergefell along the way.
She pointed out that as far back as 1985 Texas had enacted a statute governing statutory interpretation that required gender neutrality in construing statutes. “The Legislature’s clear intent to apply its provisions gender-neutrally is the context within which our court should construe ‘each rule adopted under a code,’” she wrote, quoting from the statute. “Further, the Texas Legislature had also previously adopted an understanding of gender that is broader than one’s anatomy at birth by granting legal recognition as a ‘man’ to a person born anatomically female. A court of law ordered legal recognition to Dino’s identity as a man regardless of his anatomical sex, without exclusion to its applicability. That he was born female is now altogether secondary. A majority of this court determines this case by addressing and viewing gender as inextricable from anatomy, by disregarding Dino’s legally-recognized gender-identity as male, and by forcing a narrow definition of being a ‘man’ without specific and evident direction from the Legislature. Dino asked for equal dignity in the eyes of the law, and both the Constitution and the trial court granted him that right. There is no reasonable explanation to deny his identity under every provision of the law and, in particular, the Family Code. The statute does not impose biological sex as the fixed marker of gender identity, nor should it be interpreted to use it as a mechanism for discrimination. That Dino lacks standing stems solely from the fact that he is transgender.” The reference to “equal dignity,” or course, is to the term used by Supreme Court Justice Anthony Kennedy in his concluding remarks in Obergefell, where he held that the states had unconstitutionally denied “equal dignity” to same-sex couples by refusing to allow them to marry or to recognize their marriages.
Martinez pointed out that the U.S. Supreme Court’s decisions in Windsor and Obergefell concerned, importantly, the harm to children when their parents’ relationships were not recognized. “The Supreme Court saw no reasonable explanation for that. This should suggest to us that the Court’s analysis would extend to cases not simply involving marriage, but also to eligibility for adoption and custody. For our en banc court to read the statute to now encompass marriage and not standing to bring suit to adjudicate parentage is thus problematic.” She supplemented this argument with reference to other streams of fundamental rights doctrine and standing doctrine.
“There is no prohibition against applying Dino’s legal identity as male to every other provision of the law, and this court is without license to limit the consideration of one’s gender identity exclusively for purposes of marriage,” she wrote. “This court cannot create a separate entrance to the courthouse for Dino, nor close the door to him as I believe the court’s opinion does. It disappoints me that we would sanction treating an individual differently than how the law allows, and I therefore encourage further review of this decision. Dino is a male as a matter of law. Whether he can meet the burden to prove his allegation of paternity which is to be adjudicated is not yet before us to review.”
Unfortunately, Justice Martinez’s lone dissent is a single voice in the wilderness on the Texas Court of Appeals. And the notion that a “man” or a “male” for purposes of Texas law (other than marriage) is limited to individuals who can produce sperm that are capable of biological procreation seems absurd. Would this mean that after a vasectomy a person is no long a “man” for purposes of the Texas Family Code or any other Texas statute? What about a person born male who suffers an accident or medical complication prior to puberty and thus never attains the capacity to generate motile sperm? Not a “man”??? Furthermore, after Obergefell, the “exclusive purpose” that the court of appeals panel finds for the statute on declaration of gender has been rendered nugatory, since gender identification is no longer relevant to the right to marry under the 14th Amendment. Does this mean that the Texas statute now has no purpose, since it doesn’t matter whether one is legally male or female in applying for a marriage license? Or, as Justice Martinez argues, does the gender identity statute remain significant for all those instances in Texas law apart from the right to marry where gender is relevant to a statutory right, privilege or benefit? The court’s ruling may have many ramifications that it failed to consider.
A news article dated January 21, 2015 in OutInUSA.com had an interview with Dino, indicating he was represented in the litigation by Deanna L. Whitley, who opined that the argument before the court of appeals panel that had then recently been held seemed to have gone well. They must have been quite disappointed by the January 27 ruling.