In April, Bernal asked Abbott to issue an opinion about what documents could be considered when officials determined individuals' gender for purposes of granting a marriage license, which the Texas Constitution forbids granting to same-sex couples. The question came up when Sabrina Hill and Therese Bur sought a marriage license from the El Paso County clerk. Hill, born with both male and female genitalia, was identified as a man on her birth certificate, but later, after medical treatments, obtained a court order changing her gender identity to female. So the county clerk's office had before it a mishmash of gender documents, and the law, it said, was unclear about which one should be used to decide whether a couple should get a marriage license. Should the county use the original birth certificate and grant a license for Hill and Bur, despite the fact both appeared to be females? Or should it go by the gender listed on Hill's court order and her driver's license and deny the couple?
In the end, Hill and Bur found a friendly county clerk's office in San Antonio, and they got married. Bexar County Clerk Gerry Rickhoff says court rulings have made it clear that, in Texas, a person's gender is determined at birth and can't be altered later. So he has issued many marriage licenses to transgender couples like Hill and Bur.
But other clerks, like the one in El Paso County, don't see the issue so clearly. And Bernal said she had hoped Abbott would remove the confusion. "Unfortunately, the ambiguity in the law and confusion for the county clerk remains,” she said in a press release.
In a letter formally declining the opinion request, Abbott's office said it would not issue an opinion because a case currently in court could clear up the question. A transgender woman in Wharton is fighting in court for benefits from her deceased husband's estate. The family of Thomas Araguz, a Wharton firefighter, argues he was unaware that his wife was born a man. They want his marriage to Nikki Araguz voided, and they want all his assets to go to his two young sons. "It is the policy of this office to refrain from issuing an attorney general opinion on an issue that we know to be the subject of pending litigation," wrote Nancy Fuller, chairwoman of the AG's opinion committee. "If any of the legal issues in this opinion request remain unresolved at the conclusion of the lawsuit, you may submit a request to resolve those issues."