By Jim Forsyth
SAN ANTONIO (Reuters) - The widow of a fire captain will appeal a judge's decision to deny her death benefits because she was born male, her lawyer said on Tuesday.
"I continue to grieve the loss of my husband and best friend," the widow, Nikki Araguz, said in a statement released to Dallas Voice, a publication catering to gay, lesbian, bisexual and transgender Texans.
"With this ruling, I continue to be reminded of the bias that exists toward transsexual and intersex people," she said.
Thomas Araguz III, who was a firefighter in the town of Wharton, southwest of Houston, was killed last summer fighting a massive fire at an egg farm near Wharton.
An attorney representing the firefighter's ex-wife, Heather Delgado, argued that Thomas and Nikki Araguz's marriage was not valid because same-sex marriage in Texas is illegal.
"At the time of Thomas Araguz' death, he was not married," said Edward Burwell, Delgado's attorney.
Burwell argued that as much as $600,000 in benefits ranging from insurance payments to money that civic organizations provide to the families of fallen police officers and firefighters should go to the two children Delgado had with Thomas Araguz.
The judge agreed, issuing an order last week that directed all benefits to those children rather than to Nikki Araguz. A trust will be set up to make payments to the children under the supervision of the court, Burwell said.
Gerry Rickhoff, the county clerk in San Antonio and an expert on family law, said a 2001 Texas Appeals Court ruling makes a person's gender at birth the legal gender, irrespective of any surgical procedures that may later take place.
"According to Texas law, you are what your creator made you," Rickhoff said.
Rickhoff said the 2001 ruling has been used to allow his office to issue legal marriage certificates to same-sex couples, if one of the participants can prove they were born the opposite gender.
"God has a tremendous sense of humor," Rickhoff said.
Meanwhile, Araguz has announced her plans to star in a reality TV show that will "offer viewers an honest, up-close, and personal view of being a transsexual in this modern age," according to her Facebook page.
Araguz is also facing criminal charges. She was charged earlier this year with drugging another woman, stealing her watch and attempting to sell it at a Houston pawn shop, according to court documents.
(Editing by Corrie MacLaggan and Peter Bohan)