PEGGY O'HARE and MATTHEW WOOLBRIGHT
Houston Chronicle
Reprinted with Permission

Attorneys for the widow of a Wharton firefighter killed in the line of duty presented Monday what they called proof that the fallen hero knew of his wife's gender history.


The evidence they presented — including an e-mail exchange and a witness statement - proves, they said, that the late Wharton fire captain Thomas Araguz III knew that his wife, Nikki Araguz, had undergone gender reassignment surgery after being declared a boy on her birth certificate and after being diagnosed with a genetic disorder that kept her from growing into a fully developed man.

Dueling news conferences by attorneys on both sides of the case and new court documents filed Monday were the latest developments in a legal battle centering on who stands to be paid monetary benefits resulting from Thomas Araguz's death, which occurred last month when he became trapped while fighting a fire at an egg farm near Boling.

Nikki Araguz's lawyers filed court papers Monday arguing that her two-year marriage to Thomas Araguz was valid because of a new provision in the Texas Family Code that took effect last year, which allows a person to present a court order relating to a sex change to obtain a marriage license. The couple also had what could legally be recognized as an "informal marriage" in Texas, the attorneys argued, even though Nikki Araguz didn't undergo genital reconstructive surgery until two months after they exchanged marital vows in a church ceremony.

An attorney for the fallen firefighter's family said Nikki Araguz's attorneys are "misapplying" that new provision of the law.

Thomas Araguz's mother has filed a lawsuit in Wharton County declaring all the money - which could amount to $600,000 - should go to the late firefighter's two sons, ages 9 and 6, and requesting that the couple's marriage be voided because both her son and Nikki Araguz were males at the time of the wedding ceremony. Same-sex marriages are not allowed in Texas.

The lawsuit also alleges Thomas Araguz did not know Nikki was born a male.

"In the end, when he finally realized (Nikki) was a male, he was really heartbroken," said the firefighter's mother, Mona Longoria of Wharton. "He was angry, he was ashamed, he was confused, like, 'How could she do this to me?' "

Nikki Araguz, 35, argued that her late husband was fully aware of her gender history and even accompanied her to doctor appointments in Houston as she prepared to undergo genital reassignment surgery.

Sworn deposition

"This is less about money than it is about the civil rights of my husband and I to legally be recognized as we recognized each other - as a heterosexual, male and female married couple," Araguz said Monday. "There is no question that my husband knew exactly what was going on. He was fully loving and accepting and compassionate to the medical condition that I was dealing with when we first met."

Thomas Araguz gave a sworn deposition in April claiming he did not know his wife was formerly a male and stating she had never had gender surgery. Nikki Araguz told the Chronicle they lied in their depositions - taken for a child custody dispute - so Thomas Araguz's parental rights over his sons would not be curtailed.

Nikki Araguz, born Justin Graham Purdue in 1975, said she had an underdeveloped male anatomy that never developed further as she grew older. She has always thought of herself as female.

Her lawyers on Monday released an e-mail exchange between her and Thomas Araguz, which occurred on the date of her genital reassignment surgery.

"What can I say to make you feel better? The only thing I know is 'I LOVE YOU' ... Today has been a hell of a day, would you agree? After talking to you, I called my mother-in-law to let her know the good news," Thomas Araguz wrote in an e-mail made public Monday.

Chad Ellis, the attorney for Thomas Araguz's mother, said the late firefighter said nothing about a sex change in the e-mails and referred only to an unspecified operation.

"They're coming from someone who's an admitted perjurer and who is truth-challenged, to say the least," Ellis said. "Where are the e-mails from Tommy saying, 'I know you had a sex change?' I don't see that in there. They talk about an operation."
Witness' statement

The Transgender Foundation of America released a statement from Carolyn Bosma, who said she saw Thomas Araguz accompany Nikki Araguz to her appointment at a Houston transgender clinic in 2007.

"Mrs. Araguz was particularly curious about what she might face when she had her own genital reconstructive surgery and what type of post-operative care she might need to plan for," Bosma's statement said. "This conversation took place in the presence of Mr. Araguz."

The widow's lawyers expressed confidence Monday that state law validates the Araguz couple's position as husband and wife.

"The statute in 2009 clearly trumps a case law from a lower level appellate court in 1999," said Nikki Araguz's attorney, Phyllis Randolph Frye.

Ellis said the new provision says nothing about allowing people to legally change their gender but simply lets a person present a court order for a sex change or name change for identification purposes to obtain a marriage license - such as if Nikki Araguz, born a male, wanted to marry a woman.

Nikki Araguz's legal stance is "insufficient" to invalidate the Texas Constitution, said attorney Edward Burwell, who represents Thomas Araguz's ex-wife, the two boys' mother.

"You are what you are born," Burwell said at a news conference. To suggest otherwise based on one new provision of the state's family code, he said, "is a bit of a stretch."