Undergraduate Writing Series
The Trouble with Transcendence: Is Defying the Gender Binary the New Racial Passing?

The Trouble with Transcendence: Is Defying the Gender Binary the New Racial Passing?

In 2010, Thomas Araguz III, a Texas firefighter died on the job, leaving behind his two children and transgender wife, Nikki.[1] The couple was legally married because although the state of Texas only recognizes heterosexual marriages, the state will validate a transgender union if the trans partner’s identification documents dictate that s/he is the opposite legal sex of the spouse.[2] However, when Nikki sought survivor benefits after her husband’s unexpected death, Thomas’ family launched a case against Nikki, stating that Thomas did not know his wife was transgender. The suit argued that Nikki wrongfully deceived her husband, while lobbying for the nullification of their marriage and subsequently, Nikki’s request for spousal benefits. The case was complicated further by the prosecuting attorney’s interrogation of a deposition taken from Thomas in a separate court case—a battle over custody of his two sons with his ex-wife—in which he stated that he did not know that Nikki was transgender.[3] In response to the scrutinizing of her late husband’s statement, Nikki insisted that Thomas lied during his deposition and pretended to be unaware of her transgender status in order maintain custody of his two small children. Nikki stated, “At the time, Thomas and I thought it was in the best interest of our children to lie. They were the center of (our) lives”.[4] Whether Nikki neglected to disclose her trans identity to her husband or that the couple collectively decided to lie to the court during their custody case for the sake of their children, deception surrounding Nikki’s trans status is at the center of this legal case; and undoubtedly, her credibility will be diminished regardless of how the court decides.

trans-poster-900_0Although the political push for expanded marriage rights has gained tremendous momentum over the last decade and has secured the right for gays and lesbians to legally marry in sixteen U.S. states, those who are transgender face unique challenges when it comes to navigating nuptials—challenges that are largely absent from national conversations surrounding marriage “equality.”  While in many situations, trans* people can legally marry in states where same (natal) sex marriage is still illegal, this privilege is insidiously deceptive. Because trans identities, bodies and relationships often operate outside of the gender, anatomical and sexual binary, they are all too often perceived as a threat to social order. It’s no secret that capitalism doesn’t look kindly upon those who don’t obey her rules, and those rules include cultivating established identities that can easily be classified. For trans* people, who by definition traverse the male/female binary, gendered institutions—including marriage—present a minefield of consequences for possessing the ability to be categorized as one thing while being socially identifiable as another.  In historical terms, this is called “passing.”

Passing is a term typically used to denote a person’s ability to move imperceptibly across racial lines, though the word is equally fitting to describe a trans* person’s ability to transgress the gender binary. Nikki’s perceived deceptions echoes the case of Alice and Leonard Rhinelander, an interracial couple who were married in 1924 who made national headlines because Alice, a light-skinned African-American woman, passed for white and married into the affluent Rhinelander family.[5] When negative press threatened to tarnish the Rhinelander family name, Leonard disappeared without warning and filed for an annulment, claiming that Alice misled him by presenting herself as a white woman. Ultimately, it was proved that Leonard had, in fact, known that Alice was African-American, and Alice counter-sued Leonard for abandonment. Although the Rhinelander family ended up offering Alice a monetary settlement upon her agreement to a divorce, the character attacks launched on Alice and her family, based upon her alleged racial deception were devastating. And like Nikki, Alice’s identity came under fire in a torrential court case only after the transcendent nature of her identity proved threatening to the family of her husband.

Alice and Leonard Rhinelander
Alice and Leonard Rhinelander

Both instances involve coopting an identity based upon an ability to be socially read as something other than how someone might be identified. Additionally, for trans* people and people of color alike, passing involves the risk of being accused of deceit. The fact that the Ohio State Law Journal defines passing as a “deception”[6] is a good indication of the stigmatizing level of social suspicion cast upon those who can transcend categories that are socially perceived as fixed. Although passing requires an observer’s inability to readily distinguish a person from what she is passing as, when it is discovered that the passer is something other than she appears, the observer—not the passer—is regularly regarded as a victim, a victim of the passer’s deceit.  These are the kinds of charges that are frequently brought against trans* people involved in the dissolution of heterosexual marriages and, more frequently, by the families of deceased spouses.

As the cases of both Nikki Araguz and Alice Rhinelander illustrate, individuals who embody transcendent identities—those who are able to “pass” and transgress the rigid and inflexible social boundaries that dictate identity—are often exceedingly vulnerable to the whim of the same people who legitimate their ability to do so. Claiming to have been deceived by a member of a group that has been historically stigmatized and looked upon with suspicion (trans* people, in the case of Araguz and light-skinned people of color, in the case of Rhinelander) is not a new tactic; but the fact that people are still being persecuted for the malleability of their identity—even in an arena as intimate as marriage—speaks volumes to our society’s unflattering obsession with the distribution and painstaking maintenance of palatable and easily recognized identities.



  • Mallory Nicole Davis is a junior at the University of Oregon. She is majoring in English and Women’s and Gender Studies with an emphasis in Queer and Ethnic Lit. Recently inducted into the McNair Scholars’ Program, she will spend the summer researching the work of James Baldwin and his construction of a definitively queer and ethnic American identity. You may contact her at malloryd (AT) uoregon (DOT) edu.


[1] JD, “Dead Firefighter Leaves Behind Transgender Wife. His Family Wants Her Kicked to the Curb,” July 20, 2010 Queerty (accessed December 10, 2013).

[2] Dan Solomon, “Can Transgender People Get Married In Texas?,” September 23, 2013 Texas Monthly (accessed December 10, 2013).

[3] Peggy O’Hare, “Deposition: Wharton Firefighter Unaware Wife Born a Man,” July 27, 2010 Houston Chronicle (accessed December 10, 2013).

[4] Peggy O’Hare, “Deposition: Wharton Firefighter Unaware Wife Born a Man,” July 27, 2010 Houston Chronicle (accessed December 10, 2013).

[5] Mark Kitrell, “Love On Trial: An American Scandal in Black and White,” Race, Racism and the Law (accessed December 10, 2013), excerpted from: Mark Kittrell, “Love on Trial: An American Scandal in Black and White,” Journal of Law and Family Studies (2002).

[6] Randall Kennedy, “Racial Passing,” Ohio State Law Journal 62 (2001). [PDF version] .

At the time of this post, Mallory Nicole Davis was a student in Elizabeth Reis‘s upper division class on Transgender Issues at the University of Oregon. Using transgender history, identity, and politics as a lens, the course explores how sexuality and gender have been configured throughout American history. For this assignment, students were able to choose any topic and write a blog post in the style of other Nursingclio.org essays.