Nikki Araguz vs. The State

8.16.2011

By William Van Meter

Her childhood began in a welter of sexual confusion and ended when she was raped and infected with HIV. But the biggest fight of this fiesty Texan’s life is taking place in the courts, in a frontline battle for transgender rights that is reverberating through the nation.

When she returned to the hotel, Nikki met the next man in her life in the lobby. Frank Mabry VI was a tall, handsome, and imposingly built 31-year-old going to school for solar power panel installation. 'We were drawn to each other,' Nikki says. 'I was a grieving widow in a city by myself.' Mabry became her lover and de facto bodyguard. 'The fourth day we were hanging out,' Nikki says, 'my phone rang. It was ABC, CBS, FOX, asking me to do satellite interviews. This is two weeks after my husband died. I was in shock and couldn't do it by myself. Frank went with me to each interview.'

Nikki retained Phyllis Frye -- who identifies as transgender and is a trans pioneer'as her attorney. The trial was months away, but the fight began in the press. Nikki's criminal history and HIV status were discussed. The attorneys for Thomas's family insisted that he didn't know Nikki was transgender, and that she had kept it a secret from him even after they were married. The family court deposition was cited as evidence.

Attorney Chad Ellis represented Thomas's mother, Simona Longoria. 'Nikki has been hiding this from guys for a long time,' he says. 'It's not an easy thing to do, but it's not outside the realm of possibility. Thomas knew something, but did he know the day he got married that his wife had a fully functional penis? I don't think so.'

Cristan Williams, executive director of Houston's Transgender Foundation of America, joined Nikki's fight. 'The transgender person is at a disadvantage in the media,' Williams says. 'There is the assumption that they are inherently dishonest. The idea that Thomas and Nikki lived together prior to marriage, had a wedding night, and continued to live together, but Thomas didn't know that she was preoperative is absurd. Spend 10 seconds thinking about it. The media gobbled it up. That evil tranny tricked this poor hero. That is how it was sold.'

Frank visited Nikki in Texas and escorted her to court hearings. She went to California to see him and decided to stay. 'I ran away from the nightmare in Texas,' she says. Nikki and Frank got an apartment together in Walnut Creek. By this point, she was going broke and had pawned her wedding ring and all her jewelry. 'I was taken advantage of by everyone around me,' she says of what happened to the bulk of the insurance policy she had received. Nikki says one friend stole about $9,500 from her in checks and cash. Another swindled her after pretending to channel Thomas's spirit.

On a weekend trip to Lake Tahoe, Calif., Nikki and Frank almost got married at a chapel. But Nikki decided it wasn't a good idea in the middle of litigation.

In January 2011, Frank's easygoing demeanor shifted. 'He seemed like he had multiple personalities,' Nikki says. 'He would refer to himself by other names. One was 'Bones,' a bare-knuckle boxer from Detroit. The other was a gangster named 'The Phoenix.' ' On February 8, Frank ran down the street nude into traffic. He was held by the police for 24 hours. When Nikki picked him up from the station on February 9, he was wearing a paper smock. After they got home that evening, Frank grabbed Nikki's phone and car keys from the table. Nikki chased after him, but Frank pushed her away and drove off. She went back inside and got in bed. When she awoke in the morning, Frank hadn't returned. According to eyewitnesses, at around 2:15 a.m., Frank was speeding, ran multiple red lights, and plowed into another vehicle. Nikki's car was totaled and the other driver, 57-year-old Leonid Stoliarov, was killed. Frank was charged with vehicular manslaughter.

Nikki slingshot back to Houston. 'In eight months, my husband died and my boyfriend killed somebody in my car,' she says. 'I was a hot fucking mess. I was no longer a private citizen. I was Nikki Araguz.' She couch-surfed before moving in with high school pal Erica Brown. 'Erica and her daughter gave me a family again,' Nikki says. 'The most devastating part, aside from Thomas being dead, was losing the children. I keep loving other people's kids, and they keep being taken from me.'

The case against Nikki Araguz was reduced elementally. Whether or not Thomas knew about her being transgender (as was initially alleged), her criminal history, and the highs and lows of her marriage were beside the point.

'Her criminal history is irrelevant to the validity of her relationship,' says Lisa Graybill, the legal director of the American Civil Liberties Union of Texas.

The question that remained in the eyes of the prosecution was whether Nikki was male or female at the time of her marriage -- since Texas law doesn't permit same-sex marriages. For the defense, Nikki was female, despite being preoperative at the time -- she had lived her life as a woman with hormone treatments. For the prosecution, not only was Nikki male at the time, but still is, despite reassignment surgery.

A key issue was how the judge would interpret the 2009 Texas Family Code amendment that states, 'a court order relating to the applicant's'sex change' is sufficient to merit a marriage license. Nikki's valid California birth certificate was reissued after Thomas's death. When a California birth certificate is changed, the original is void, and through constitutional full faith and credit, states must recognize each other's legal documents. But this is an era where recognition of same-sex marriages varies from state to state. As such, the copy of Nikki's voided birth certificate was allowed into evidence, as well as her legal one.

The prosecuting attorneys assert that the case was not about transgender rights. 'It's no different than if Nikki was an alleged common-law spouse trying to get the benefits,' says Heather Delgado's co-counsel, Ed Burwell. 'The fact that she's transgender from the purposes of our role in the litigation was incidental.'

'Simona Longoria is not on a crusade to end transsexuals' ability to marry the person of their choosing,' says her attorney, Chad Ellis. 'She cares about making sure her grandchildren get their dad's benefits. We were trying to litigate a probate matter. We ran into a cause.' Ellis, however, admits that his firm received a grant from right-wing organization Alliance Defense Fund to aid in the case.

On May 26, 2011, Judge Randy Clapp declared Nikki and Thomas Araguz's marriage void. Clapp cited as precedent 1999's Littleton v. Prange, which states that gender is ascribed solely chromosomally, and that, therefore, there could never be a valid sex change. That case began when male-to-female Christie Littleton sued the doctor for malpractice after her husband died in surgery. The decision made her lawsuit moot, stating that Littleton had never been married in the first place. (Littleton's attorney was Phyllis Frye.)

The Littleton opinion reads: 'Her female anatomy, however, is all man-made. The body that Christie inhabits is a male body'there are many fine metaphysical arguments lurking about here'But courts are wise not to wander too far into the misty fields of sociological philosophy. Matters of the heart do not always fit neatly within the narrowly defined perimeters of statutes, or even existing social mores.'

'Our understanding has evolved,' Graybill says. 'Gender identity is a complex matter not limited to chromosomes and biology. Nikki Araguz is a woman.'

The Littleton opinion was coupled with 2005's Article 1, Section 32 amendment to the Texas constitution, which states that marriage is between a man and a woman. But what about the amendment that allows a marriage license based on sex change documentation? The laws all say different things, and it was up to the judge to interpret them.

'When it comes to cases involving transgender people, judges don't always follow logic, or even the law, to decide the outcome,' says Paisley Currah, author of The United States of Gender and political science professor at Brooklyn College of the City University of New York. 'It's not a surprise to see judges making decisions from their guts'instead of wading through lengthy scientific explanations about gender identity or the mutability of physical sex characteristics. Araguz's otherness as a transgender woman was no match for the claims of a traditional family, even if it was no longer intact.'

'The ruling,' says Nikki, 'was like a punch to the stomach.'

Later in the week, after her church visit, Nikki is eating eggs and toast at a Cracker Barrel restaurant. She is wearing glasses, sweatpants, and a baseball cap decorated with sparkling rhinestones patterned into a cross. Nikki is trying her hand at online dating. So she doesn't have to explain her existence repeatedly, she sends a link to her website. Her philosophy: If potential suitors can handle it, cool. If not, it's their loss. Nikki wants to marry again one day. 'I'm a nester like there's no tomorrow,' she says.

The day after the verdict, May 25, Nikki was brought up on charges for stealing a Rolex valued at $2,850 from a woman at a bar (the incident allegedly took place in February). According to the police report, a pawnshop owner confirmed that Nikki brought in a watch matching the description. On her Facebook page Nikki wrote that a man had given her a Rolex. 'I can't comment,' she says. 'I feel targeted. It's a load of shit.'

On June 24, a motion for a new trial was filed in the estate case. Two powerful Houston firms signed up pro bono as co-counsel, along with Phyllis Frye. 'We are fighting for the rights of Nikki Araguz and all transgender people,' says Mitchell Katine of Katine & Nechman, L.L.P. At the July 6 hearing, Judge Clapp denied Nikki's motion, saying, 'I have already made up my mind. It would be a waste of time.' When court was adjourned, Nikki yelled, 'Shame on you! My husband loved me and chose to marry me!' and stormed out.

On July 18, Nikki filed an appeal with the 13th District Court of Appeals. That same week, she announced that if she received an insurance settlement for the case, after legal fees, the proceeds would be put into a trust for Thomas's children. 'I'm tired of people saying I'm doing this for the money,' Nikki says. 'Fuck it. I took care of them when Thomas was alive, and I'll help take care of them now.'

Nikki didn't rest after the judgment. She visited Frank Mabry in jail (his charge was upped to second-degree murder), and then Christie Littleton, whose court battle echoed her own. 'Being busy distracts me from having to deal with the pain,' Nikki says. 'If I don't keep swimming, I will sink.' She went to Los Angeles for meetings about a possible book deal and a TV movie before heading back to Houston to join a float in the city's Pride parade.

'This is my new normal,' Nikki muses, 'the activism and the storytelling of my life. I don't know what kind of regular job I would do that wouldn't surround being'' Nikki pauses, smiles, and says, ' 'Nikki Araguz, the transsexual widow.' '

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