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] .

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Sean Saunders

As a trans person, and academic, and teacher of undergraduates, I enjoyed reading this. If I have one critique, it’s this: as a balance to the discussion of the “deceit” that trans people are often accused of practicing, it is important to acknowledge that we, in our self-presentation (whether we “pass” or not), understand ourselves to be presenting true and authentic selves not false selves.

Sean Saunders

(YOU know this, I know, but I’m not sure it comes across in the post. 🙂 )

Carolyn Herbst Lewis

Where is the ‘like’ button for Sean’s comment? 😀

Sean Cosgrove

This is a fantastic post, Mallory! It links the historical and the political really nicely (the connection between racial and gender passing is particularly salient for conversations about the political rights of a number of individuals within our communities, broadly defined).
If I were to make one comment, however, I’d be interested to see you make a more explicit effort to explain the relationship between capitalism and identity. This is a big ask (too big for a blog post of this size, I imagine) but it might provide some useful questions for future studies?

Mallory Nicole Davis

Thanks, everyone, for the compliments, keen eyes and strong critiques! I welcome them.

Ben Saunders, I appreciate your thoughtful insight into the representation of authenticity to juxtapose the charges of deception often faced by members of the trans* community. It was an issue that I grappled with as I wrote the piece. My initial draft included an introductory paragraph that I feel addressed this issue more directly; but it was ultimately too clunky and informal for the tone of the rest of the piece, so it was scrapped. However, your comments are valid, and in the future, I will be cognizant of making a stronger effort to give more agency to the communities I write about throughout the entirety of a piece, so that my advocacy is clear.

Ben Cosgrove, interrogating the connection between capitalism and identity is indeed, a “big ask,” but certainly a worthy one. It’s much too intimate a relationship to explore in a blog post of this size, but I look forward to revisiting it in my work.

Mallory Nicole Davis

I apologize, SEAN (Cosgrove). I’m not sure how you became “Ben.” How embarrassing!

Sean Saunders

Hee hee, You made BOTH the Seans into Bens (including me). No matter!


“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.” well put!

Elizabeth Hungerford

I also find the malleability of identities fascinating, but I urge you analyze how these identities are used to enforce and distribute social POWER. Identities are not merely benign spectrums of self-expression, but tools of social organization that, when reified as natural, serve the status quo. Analysis of power is vital.

For example, African Americans seeking to pass in the white world gained social status. A similar power gain (social mobility up) can be argued about transmen, or females passing as men.The OPPOSITE is true of transwomen, or males passing as women (social mobility down). When a member of the more powerful group seeks to “pass” or be treated AS a member of the group it has power-over, we need a totally different power analysis. Ignoring the power dimension of identities is to ignore the way oppression operates.

Further, African Amercians did not claim to actually “BE” white as a reflection of their essential self/soul, nor did they claim to be “white” on a cellular level. The transgender claim is that “woman” and “man” are essential parts of ourselves and that transsexual people suffer from some kind of biological mis-categorization. Shuffling individuals around like musical chair among pre-fabricated identity boxes does NOT challenge the system. It keeps the system firmly in tact as natural, harmless, inevitable and frames outliers (trans) as mere category errors of a basically just system. This side-steps analysis that would help us deconstruct structural oppression.

And lastly, I can’t wait to read this book.

From the review:

Historians tend to think of passing as “an individualistic and opportunistic practice; a tool for getting ahead,” Hobbs said. But cases like that of the Johnstons convinced Hobbs that there was another side to the story: that many who successfully “crossed over” did so with a heavy conscience.

“I’m not as interested in what people gained by being white, but rather in what they lost by not being black,” Hobbs said. “To understand passing we can’t just look at the story of the person who passed, we have to look at their whole social world, because everyone is going to be impacted.”

AD Powell (@mischling2nd)

Alice Jones Rhinelander was not “African American” but an immigrant from England. There is no such thing as a “light-skinned African American” as you use the term. Alice, her mother and sister did not look Negro or black. Mixed-white would be a more appropriate term for the daughters. The mother claimed to be unmixed European. The father’s ancestry was uncertain. If Alice’s sister had not made the social mistake of marrying a black, the whole issue might not have come up at all.

Above all, there is no such thing as an “African American” “passing as white.” The people you accuse of “passing” are indeed white and should be respected as such. Calling a physically white person “African American” or “black” is as immoral and racist as calling a Jew “non-Aryan.”

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