Another wrinkle in the legal questions surrounding same-sex divorce arose in Dallas court recently. The union in question is between Rebecca Louis Robertson and James A. Scott. Robertson wants to have “the alleged marriage” declared void; Robertson claims that her partner was born a female, was a female at the time of the alleged marriage and remains a female. In contrast, Scott wants a divorce and says that he — the pronoun he prefers for himself — is a man, even if he was born with female genitals, because, he says, he has undergone complete gender transformation and he always thought of himself as a man. Robertson filed a petition to have the marriage voided on Sept. 9, 2010. Scott filed a Feb. 22 counterclaim seeking a divorce. Robertson filed a second amended petition to have the marriage voided on May 13 and filed a June 27 motion for summary judgment to declare the marriage void. In her motion for summary judgment, Robertson argued, “Upon admitting that she was born female, [Scott] has foreclosed any possibility for this Court to validate the marriage, as this is Court is bound by the Dallas Court of Appeals and it has stated clearly that the constitutional and statutory prohibitions against same sex marriages are to be upheld.” [For discussion of In the Matter of the Marriage of J.B. and H.B., see "Gay Divorce Case Adds to Debate Over Gay Marriage."] Scott filed a response to the motion for summary judgment on Nov. 3. In it, Scott objected to Robertson’s use of female pronouns to describe Scott. Scott also argued that he “did not acknowledge being born female . . .” but instead “being born with female genitals.” Scott wrote that he has fully completed his transition to become male, although he “opted against the risky and largely ineffective procedure known as phalloplasty, which consists of attaching a sausage-like section of skin-covered tissue between the legs.” In addition, Scott argued, “One does not perceive oneself through his or her genitals. One perceives the world and oneself through his or her mind. . . . And for most people that psychological reality is matched by the physical body, but not always.” Scott argued that, through multiple lines of authority, “his marriage is valid under the laws of Texas. Mr. Scott’s case has nothing to do with same-sex marriage. Mr. Scott’s case is about affirming the right of a transgendered man or woman to enter into a hetero sexual marriage in Texas, confident that neither the state nor a . . . spouse can declare it to be anything than what it is: a valid, legitimate marriage.” On Nov. 21, 255th District Judge Lori Chrisman Hockett denied Robertson’s June 27 motion for summary judgment to declare the marriage void. Scott is represented by Eric Gormly of The Gormly Law Firm in Dallas, who hails the denial of summary judgment as a significant ruling for transgender individuals. Gormly notes that he expects the couple to go through a divorce. Thomas Nicol of The Nicol Law Firm in Dallas, who represents Robertson, however, stresses that the ruling only addressed the summary judgment motion and that a trial will still be held to determine if a the marriage may be voided. “We could still win at trial,” Nicol says.
-- Miriam Rozen