Transgendered Issues Confound Courts and Prison Officials
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The case of Justin Purdue has captured the interest and emotions of residents of Wharton County, as well as Harris County, for much of the past year. Purdue was born anatomically a man on June 4, 1975 in Camel, California but at some point in his life he believed he was more suited as a woman. He went through several medical procedures to change his appearance so as to be better able to live socially as a woman, although he continued to maintain male genitalia. In 1996 Pardue filed a pro se petition for a name change in Harris County changing his male name from “Justin” to “Nikki Paige Purdue.” Between 1999 and 2007 she used the name of Nikki Purdue-Mata because of a marriage to a man named Emilo Mata. The couple divorced in 2007.
Sometime after her divorce from Mata, she met and married firefighter Thomas Trevino Araguz III. In August 2008 they were married. The firefighter was killed in a blaze last July at an egg farm in Wharton County. Araguz had previously been married to Heather Delgado with whom he had two children. And that’s where this case becomes a thorny legal issue. The heirs of Thomas Araguz stood to gain $600,000 in death benefits. Nikki Araguz claimed, as the “widow,” she was entitled to the benefits. Heather Delgado and other Araguz family members did not agree. They believed the death benefits should go to Araguz’s two children, ages 7 and 10.
The Araguz family filed a lawsuit to block Nikki Araguz from receiving the death benefits. The family claimed that Nikki was a male at the time of the marriage to Thomas and, thus, under Texas Law, the marriage was void—a law which has been upheld in the Texas appellate process. Nikki countered that her deceased husband knew about her gender before the marriage and that they lived as a same-sex married couple throughout their marriage. While the Araguz family did not believe Thomas’ knew Nikki was anatomically a man, it defies reason to accept that the firefighter lived with Nikki for nearly a year before his death without knowing her birth gender. Although Nikki had previously requested the State of California to issue her a birth certificate designating him as a “female,” she later asked that state to reissue that birth certificate in July 2010, apparently in either anticipation or in defense of the Araguz family lawsuit.
The sole issue faced by Wharton County District Judge Randy Clapp was not whether the Araguz(s) lived as a married same-sex couple but whether the 2008 marriage itself was legal. The Houston Chronicle reported on May 26, 2010 that Judge Clapp had ruled in favor of the Araguz family by declaring the marriage between Thomas and Nikki Araguz was illegal under Texas law and, thus, null and void. Frank Mann III, the attorney representing the Araguz family, released a prepared statement carried in the Chronicle which read: “It is our understanding, having read a draft order circulated by Judge Clapp, that he has ruled that any marriage between Thomas Araguz and Nikki Araguz is void as a matter of law.”
Transgender rights advocates were not pleased with Judge Clapp’s ruling. Noel Freeman, president of the Houston Gay, Lesbian, Bisexual and Transgender Political Caucus, told the Chronicle that he was disappointed because Nikki Araguz had presented legal documents, including the 2010 California birth certificate, designating her as a female. “Here you have a birth certificate, a legally binding document, which the court has chosen to completely ignore,” Freeman told the Chronicle. “The transgender community jumps through a lot of legal hoops—records of sex changes, amended birth certificates—to try to live the same life that everybody else gets to live. This is a very frustrating setback.”
Apparently Judge Clapp’s ruling, according to Lou Weaver, president of the Transgender Foundation of America, was greatly influenced by a medical doctor’s testimony that Nikki was born a male.
Nikki Araguz vows to appeal Judge Clapp’s decision all the way to the U.S. Supreme Court.
Recently, in sexual civil commitment case, the First Circuit Court of Appeals, in Battista v. Clarke, had to take on a case dealing with transgender rights. Sandy Battista was born “David Megarry.” In 1983 a state court in Massachusetts convicted him for the offenses of rape of a child, robbery and kidnapping. In 1996, while still an inmate in the Massachusetts prison system, Megarry filed a petition that changed his birth name David Megarry to his transgender name Sandy Battista. To this day he remains anatomically a man.
The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th Ed. 1994) recognized “gender identity disorder” (“GID”) as a psychological condition which involves what the First Circuit called “a strong identification with the other gender.” The psychiatric association states its “diagnostic criteria” not only includes “cross-gender identification” but also “clinically significant distress in social, occupational, or other important areas of functioning.”
Following his 1996 name change, Battista began a legal campaign to have the Massachusetts Corrections Department (“Department”) recognize him as a female, including demands for female hormone therapy and the right to wear female clothing. He filed two lawsuits seeking to force the Department to recognize these “rights.” And although a “consultant” for the Department diagnosed Battistia with GID in 1997, the Department refused to provide the inmate with any additional evaluation and treatment until 2004. That decision came only after Battista had been released from prison and civilly committed to the Massachusetts Center for Sexually Dangerous Persons—a facility in which “sexually dangerous persons” can be held indefinitely until a determination is made that they no longer pose threat to the free community. The center is an all-male facility that detains three classes of sex offenders: criminals participating in treatment programs; civilly committed residents; and those awaiting adjudication as “sexually dangerous persons.” Massachusetts law requires that the latter two classes be confined separately from the “criminal” class.
In response to one of Battistia’s lawsuits, the Department received continued medical assessments from its staff recommending hormone therapy but the
Department said it would not implement these recommendations until all “security concerns” were evaluated. In 2008 the Department “first security review” found, as reported by the First Circuit, “that a feminine appearance would endanger Battista” because “sexual contacts or assaults by other detainees would be made more likely by female clothing and accessories and the enhancement of breasts due to hormone therapy.” In December of 2008 a United States District Court was not impressed by what it called a “fairly cursory” security review and ordered the Department to provide Battista with psychotherapy, access to women’s attire and accessories, monthly reports on his condition, and a “recommendation” on hormone therapy after a six-month review.
Six months later doctors again prescribed hormones for Battista, and while the Department permitted a “first dose” of the treatment, it put all future treatments off until a “second security review” could be conducted. This second security review was released in September 2009 and it once again concluded that “the safety risk was too high.” This review relied heavily on the federal “Prison Rape Elimination Act of 2003” which found that the risk of sexual assaults was higher in “treatment centers” than in prisons. The review concluded that since Battista had been civilly committed to a sex treatment center, the Department lacked the ability to transfer him to “another facility” where the risk of sexual assault would be less.
Battista filed yet a third lawsuit after which prompted the federal district court to conduct a bench trial in June and August 2010. Psychiatrist George Brown testified at this trial that Battista was both “eligible and ready for hormone treatment” and that the Department’s past treatment of her GID fell “below any reasonable standard of care.” He attributed Battista’s 2005 attempt at self-castration a direct result of this lack of treatment which could lead, as the First Circuit noted, “to an inadvertent death due to exsanguination.”
The federal court issued a preliminary injunction requiring the Department to provide Battista with “hormone therapy.” The court’s extensive factual and legal conclusions were based upon the U.S. Supreme Court’s “deliberate indifference” standard in prison medical cases which was announced in Estelle v. Gamble and defined in Farmer v. Brennan. Under the constitutional guidance of these two precedents, the court concluded that 1) Battista had established a “medical need” for hormone therapy which could cause “severe harm” if not provided; and 2) the Department’s refusal to provide this treatment had been “undercut by a collection of pretexts, delays, and misrepresentations.” The court’s ruling, however, was stayed pending the Department’s appeal to the First Circuit.
The First Circuit upheld the district court’s ruling, finding that “the focus of this appeal is narrow. The Department concedes that Battista suffers from GID and needs treatment and that hormone therapy has been recommended as medically necessary; but it says that security concerns reasonably underpin its refusal and contests the finding of deliberate indifference.”
The central issue before the First Circuit was the Department’s position that it had not acted in bad faith with its decision to deny Battista the undisputed need for medical treatment. The First Circuit firmly brushed aside this argument.
“ …. even without an evil motive, the district court could reasonably find that there had been ‘denial,’ ‘delay’ and ‘interference’ under Eighth Amendment precedent and that a reasonable professional judgment had not been exercised under [Youngberg v Romeo]. It has been fifteen years since Battista first asked for treatment, and for ten years, health professionals have been recommending hormone therapy as a necessary part of the treatment. When during the delay Battista sought to mutilate herself, the Department could be said to have known that Battista was in ‘substantial risk of serious harm.’
“But the question remains whether the withholding of hormone therapy was ‘wanton’ or outside the bounds of ‘reasonable professional judgment.’ Medical ‘need’ in real life is an elastic term: security considerations also matter at prisons or civil counterparts, and administrators have to balance conflicting demands. The known risk of harm is not conclusive: so long as the balancing judgments are within the realm of reason and made in good faith, the officials’ actions are not ‘deliberate indifference,’ or beyond ‘reasonable professional’ limits.
“Here, despite much early resistance, hormone therapy for GID is now provided in some cases in Massachusetts prisons. The defendants point to this to establish their good faith; Battista, to show that providing her the therapy would be consistent with security needs. Both positions are overstated. Hormone therapy has not been welcomed by the Department, but both the Treatment Center’s internal environment and Battista herself arguably presented added risks.
“The Treatment Center is the one facility where Battista can be housed as a civil inmate and, while the Department could establish a branch elsewhere, this would pose administrative difficulties and be isolating for Battista. The civil-side residents of the Treatment Center contain a disproportionate number of male sex offenders who might threaten one who presents herself as female. And Battista has a record of infractions and sexual contacts and risk-taking that colorably place her at greater risk from invited or uninvited sexual contact.
“Nor is Battista’s willingness to take risks for herself decisive. The defendants have an obligation to take reasonable measures to protect inmates, and Battista is quite likely to sue if preventable harm occurs. Battista will bear some of the risk of the hormone therapy, but not all of it. And, while she could be kept in protective custody available at the Treatment Center, this custody—as currently structured—involves confinement for most of the day and other disadvantages that Battista is unwilling to tolerate.
“The legal labels applied to facts are reviewed on appeal more closely than a district court fact-finding, but often with some deference to the district judge. Yet this would be a much harder case if defendants had proffered a persuasive and untainted professional judgment that—while hormone therapy would help Battista—the dangers, security costs and other impediments made it infeasible. For the problem is not one of callous guards or inept medical care but of conflicting considerations. As we said in an earlier case involving the Treatment Center:
“’Any professional judgment that decides an issue involving conditions of confinement must embrace security and administration, and not merely medical judgments․ The administrators are responsible to the state and to the public for making professional judgments of their own, encompassing institutional concerns as well as individual welfare. Nothing in the Constitution mechanically gives controlling weight to one set of professional judgments.’
“Yet in this instance, as the record now stands, the defendants have forfeited the advantage of deference. Initially, the district judge was far from anxious to grant the relief sought. It was only after what the judge perceived to be a pattern of delays, new objections substituted for old ones, misinformation and other negatives that he finally concluded that he could not trust the defendants in this instance. The details are laid out in his oral opinion and the record contains support for his conclusion.”
Transgender rights cases, both in the prison setting and in the free world, will unquestionably be addressed in many other courts. While some may see a man living as a woman as having a “mental disorder,” others see sexuality in less black and white terms; as a natural human right with many shades of grey, where sexual identity can only be determined from the individual perspective. While it is becoming settled that transgendered people are a recognizable class who enjoy a litany of medical rights, it is doubtful that this classification will be lead to a constitutional protection to marry over a state’s inherent right to define marriage. This will remain a hotly contested issue as the Araguz case exemplifies. While some states have recognized marriage to include legal unions between members of the same sex, Texas courts and the U.S. Congress with the Defense of Marriage Act have resisted social and political efforts to move into those hot waters. One thing is certain: the issue is far from resolved.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Houston Criminal Defense Attorney John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization