TRANSGENDERISM AND SEXUAL ORIENTATION: MORE THAN A MARRIAGE OF CONVENIENCE Mary Coombs* I. Introduction
A hot topic in the gay and lesbian community these days is "same-sex marriage:" can we get it? do we want it? if we get it, can we keep it? As is apparent from the flurry of activity in Hawaii, in the United States Congress, and in various state legislatures, the religious right is equally agitated about making sure we don't have marriages they have to recognize. Curiously, however, very little attention has been paid to those "same-sex marriages" that have existed for some time -- marriages in which one of the partners has undergone sexual reassignment surgery. Both gays and lesbians, on the one hand, and opponents, on the other, have settled attitudes and legal positions regarding gay and lesbian "same-sex marriages" between Tom and Sam or Susan and Lisa. But the terms of the debate also affect the transgendered "same-sex marriages" between Tom and "Sam, formerly known as Susie" or between Tom and "Susie, born as Sam."
In this essay, I want to examine the relationships -- both theoretical and political -- between transgenderism and homosexuality. I suggest that the two characteristics, and the communities of those whose identities are significantly formed by those characteristics, are related in complex ways. They are deeply linked politically, because they are seen as linked and treated as aspects of a similar deviance by the dominant straight community. Largely because of these common politicized perceptions, they often share common battles and thus can benefit from strategic cooperation and alliances. The questions of same-sex marriage and the related litigation which will follow the passage of the Defense of Marriage Act ("DOMA")1 provide one useful lens to examine many of the political and strategic rationales for such an alliance.2
The long-term implications of such an alliance are less clear. Conceptually, the two identities are quite distinct. There is no necessary connection between one's gender identity and one's sexual orientation, however each of those is understood. Indeed, the term "transsexualism" was classically (though erroneously) defined to include as one of its criteria that the person was sexually oriented towards persons of a different sex than that which the transsexual understood himself to be.3 In this essay, I examine only the value of such an alliance between groups -- gays and lesbians on the one hand and transgendered persons on the other -- that understand themselves as distinct. Whether strategic alliance will or should develop into a meta-identity is a separate question that, however important, is beyond the scope of this essay.4
In examining the relationships between the gay and lesbian community and the transgendered community, one immediately faces complex issues of language. The term "homosexuality" reeks of medico-psychological studies of same-sex sexual orientation as a
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disease; "same-sex sexual orientation" is too long and clumsy, while "sexual orientation" implies that straight people don't have one. The term "gay and lesbian" can describe a group of people but does not have a concise corresponding noun form for the characteristic that gay and lesbian people have in common; and "queer," which is in many contexts my preferred linguistic marker, does not define a category separate from transgenderism. Rather, it is better used to describe a range of offenders and norm- breakers, on dimensions of both gender and sexual orientation, and thus tends, perhaps prematurely, to answer the question whether such a meta-identity is appropriate. In this essay, I avoid the term queer; use gay and lesbian when practical, and sometimes use the term homosexuality for convenience, despite its troubling connotations.
Similar linguistic complexities occur on the other side of the proposed alliance. The generally preferred term among activists is "transgender."5 Given the context of marriage rights, however, this essay focuses primarily upon transsexuals, rather than cross-dressers and other transgenderists, who challenge our notions of gender, but not (or at least not directly) of sex, the operative term for the marriage rights issue. I thus use the term transsexual when describing that subset of the transgendered community, while using the term transgender when discussing issues of political alliance
Finally, a caveat about the use of terms like "gay and lesbian" or "transgender" to refer to identities of persons or to communities comprised of persons with such identities. I recognize that the questions of whether there is such a thing as a "gay identity," the potential sources of such identity, and whether such an identity is biologically rooted or socially constructed, are complex and contested. As suggested later, "identities" are multiple and contingent: in different contexts, I might be considered and consider myself an American, a woman, a lesbian, a Jew, or a Jewish lesbian academic of lower-middle- class background living in Miami. For purposes of this essay, I largely remain agnostic about the sources of identity and of the political consciousness of a particular characteristic as the source of an "identity." My argument depends only on the existence of a perception of sufficient and relevant commonality among those who are politically engaged, on both sides, with issues such as same-sex marriage. Those who identify themselves as gay or lesbian recognize an interest they have, as such, in whether their relationships can be treated as legal marriages or will be denied that recognition because they are between same-sex persons. Similarly, those fighting against gay marriage perceive gays and lesbians as a distinctive set of persons who are, by that identity, to be treated differently. Whether one would be "gay" in a different culture, and what that label would mean, is unimportant for the pragmatic purposes at issue here.
Traditionally, the gay/lesbian community has ignored the transgender community. This neglect is understandable in light of the threats to the gay/lesbian community, the salience of those issues that immediately affect that community and the difficulty of effectively creating a sense that gays and lesbians do form a community. It is thus unsurprising that what appear to be subsidiary issues, such as the inclusion or exclusion of groups such as the transgendered, who seem marginal to the self-definition of the gay/lesbian community, have been neglected. The exclusion has largely been one of omission rather than commission. Nonetheless, as our community matures, continued exclusion of transgender issues from our agenda would be an ethical, intellectual and strategic mistake.6
We might consider the analogous issues that arose within the women's movement of the 1960s and 1970s. One can understand at one level why a movement that began with an examination of the meaninglessness and misery of the lives of traditional housewives7 and demands for workplace access might not consider lesbian concerns as central to their agenda. The parallel is imperfect, however. Lesbian concerns were not merely neglected by second-wave feminism. Rather, there was in some circles a conscious decision to exclude lesbians for fear of "contamination" in the eyes of men.8 This was inexcusable. It was also a political mistake. Feminism is only strengthened as it becomes inclusive of all women, while struggling with the recognition that the category "woman" includes a wide range of persons whose concerns and interests only partially coincide.9
Like the category "woman," the category "gay and lesbian" is not unitary but, by its very nature, coalitional. Its common denominator is same-sex sexuality and/or erotic
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attraction and behavior. One might think of the gay/lesbian and straight worlds, then, as involving different pairings of the same components, i.e., men and women. As the term gay/lesbian recognizes, however, the community is comprised of two readily distinguishable subgroups: men attracted to men and women attracted to women. It also, like the feminist community, includes people of different races, classes, ages, and physical abilities, whose understanding of the significance of their gender (in the case of feminists) or their sexual orientation (in the case of gays and lesbians) is frequently affected by their identity along these other dimensions. Similarly, the identity category "gay and lesbian" includes people who have different political understandings of the significance of sexual orientation -- people who see themselves and want to be seen as virtually normal10 and people who want to be seen as radical queer activists.11 Although gays and lesbians, especially those who are more politically aware or are members of the less dominant group on such criteria as race or class, are often aware of the complexity of their identity, we rarely call into question our sex identity, i.e., the maleness or femaleness of our selves and of our desired partners.12 Nonetheless, the presence in the gay and lesbian community of gender benders such as drag queens and diesel dykes suggests that we are more likely than heterosexuals to be gender nonconformists and to be aware of the complexity of sexual/gender identity itself as an aspect of identity.
The characteristic which is understood to define the characteristic of transgenderism seems at first radically distinct. Transgenderism is defined as about, not sexual orientation, but sexual identity. Transgenderism is a term for people who experience a separation between their gender -- for some their core gender identity and for others the gender presentation they exhibit at certain times -- and their biological/ anatomical sex.13 The transgender community, like the gay/lesbian community, is itself coalitional. It, too, comprises people who differ on characteristics of race, age, gender, sexual orientation, family situation, etc. -- differences which mean that different meanings will be attached to their transgenderism and different social consequences will flow from their attempts to express that sexual identity. As the case of Renee Richards14 indicates, a successful doctor and tennis star can obtain sexual reassignment surgery and hire expensive lawyers to litigate her claim to play tennis as a woman. Her situation is both similar to and radically different from that of a poorer transsexual who cannot afford surgery or who will lose his job at the factory when he cross-dresses.15
Transsexuals also vary on the dimension of sexual orientation, although the earliest theorists of transsexualism insisted that "the transsexual is not a homosexual," and even made such heterosexuality one of the diagnostic criteria.16 That criteria, I suggest, reflected a deep-seated homophobia. A male-anatomied transsexual had to be a straight woman in a man's body. Thus her desire for men was not perverse. But what if she understood herself to be a woman attracted to women? The doctors and psychiatrists were not -- still largely are not -- prepared to change what looked like a straight man into a lesbian.17
There are also important differences within the transgendered community linked to the very criteria that defines that community. The collectivity of those who are defined by their "non-normative" position on issues of sexual identity includes transsexuals, who understand themselves to be members of the "opposite sex"18 than that which their genitals would suggest and who (often) seek sexual reassignment surgery to make those genitals match their gender identity. In effect, they seek to become -- physically, socially and legally -- the sex they have always been psychologically. If they succeed in doing so, they typically consider themselves simply as members of their new sex, rejecting any significance to how they arrived there.19 In that sense, one might imagine them as akin to the "virtually normal" gay folk who want to be part of a world in which sexual orientation is as insignificant as eye color, and disappear into the melting pot of the straight world. The insistence of some transsexuals on claiming that characteristic as a basis for an identity and politicized community building is a relatively new phenomenon, often associated with adoption of the term transgenderism and a reaching out to the gay/lesbian community for alliance.20
The transgender community also includes other people whose gender identity or presentation does not consistently or completely match the gender that society
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insists is the natural and necessary correlate to their anatomical sex. Cross-dressers21 dress in the clothes associated with the other sex, to obtain employment unavailable to persons of their anatomical sex, for erotic reasons, or to express aspects of their identity they find unavailable when dressing and acting in conformance with what is socially expected of persons with their anatomy.22 While outside observers may identify them as gay, the cross-dressing community has traditionally defined itself as specifically heterosexual.23 Indeed, Virginia Price, their "founding mother," as well as the "experts" in gender identity, often make heterosexuality part of their definition of cross-dressing,24 thus excluding a priori the cross-dressing drag queen and stone butch. In effect, both the gay/lesbian and the transgender communities have historically marginalized or excluded those who embody the intersection of these characteristics.25
Transgenderism also includes people who cannot be neatly pigeonholed as either transsexuals or cross-dressers, but who live in a variety of ways that reject the dichotomy of gender, the place they have been assigned within that dichotomy, or both.26 Let me give two examples. First there are people one might call "non- operative transsexuals." A person born with male genitalia might understand herself to be a woman, dress and live and present herself publicly as a woman, perhaps take hormones to induce some physical shifts toward a more feminine body, but choose not to undergo sexual reassignment surgery. As far as she is concerned, she is a woman and what is between her legs doesn't change that identity. One sees a similar rejection of simple gender dichotomies in the life of someone like Tom/Sharon, who has adopted the term "bi-gendered" to describe his/her persona. Tom/Sharon chooses, at different times and in response to particular social and psychological incentives, to present as male or female: the anatomy remains the same, while the dress, walk, voice patterns and sense of self shift.27 One might think of him/her as the transgendered equivalent of the bisexual.
[P]reoperative, postoperative and nonsurgical transsexuals as well as male and female cross-dressers and transvestites. . . form a transgender community that is in the process of creating not just a third gender but the possibility of numerous genders and multiple social identities.28
Before considering the pragmatic and theoretical reasons for conjoining two communities of people who understand their identities as defined along distinct, though interrelated, dimensions, I should note that there are people who inherently embody that coalition -- who are both transgendered and gay or lesbian. We disserve both communities if we allow such persons to be erased from our consciousness. Researchers and activists were correct when they rejected the nineteenth century notion that we were the same; that homosexuals comprised a third sex or that we in essence were suffering from gender confusion. But they were wrong when they replaced a false concept of necessary sameness with an equally false concept of necessary difference and placed impermeable boundaries between the two categories. Gays and lesbians do not necessarily experience gender confusion; transgendered people are not necessarily gay,29 though there are transgendered lesbians and transgendered gay men.
Nonetheless, there is no logical link between sexual identity and sexual orientation.30 Are there, then, any reasons for the two communities, each defined by its "non-normative" position on one of these categories, to engage in more than the sort of particularized, issue-specific alliances, such as each community might form with, for example, race-based civil rights movements around effective protections against housing or employment discrimination? I believe there are, for the characteristics that define each community are inherently entangled.
To put it simply: we need to ally because we have common enemies. Those enemies -- the defenders of "traditional family values," who understand little about traditions, less about families, and nothing about any values worth protecting -- see gays and lesbians as dangerous and disgusting in part because we, our love and our relationships, threaten their views of what men and women are.31 Transgendered people,
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their love and marriages, can and do evoke much the same fear and loathing,32 and for much the same reasons.
The dominant ideology perceives sex, gender and sexual orientation as inherently and essentially linked together in very specific patterns. These patterns are seen as natural, biological, and God-given -- though simultaneously so fragile that they need the strong hand of the law to protect them. As Mary Anne Case, Katherine Franke and Frank Valdes have all explained, that conflation of sex, gender, and sexual orientation is both powerful and powerfully dangerous. 33
In the rest of this essay, I focus on the way that conflation has been played out in the particular context of marriage. I begin with an examination of the cases involving marriage and transsexuals to see what they reveal about the images of sex and gender, of marriage and intimacy, embedded in the law of domestic relations, including the implications of those rules and images for the legal control of the relationships of gays and lesbians.34 I then consider the law and politics embedded in the soon-to-be-brought challenges to restrictions on same sex marriage and consider how those challenges will be facilitated if the gay and lesbian community and the transgendered community work together to fight against our common enemies.
II. Same-Sex(?) Marriages
Challenges to the dominant vision of marriage have been brought both in the context of gay or lesbian would-be spouses and of transsexual marriages. In the former context, the challenges have always been brought before any marriage; gay or lesbian couples sought to compel public officials to grant them marriage licenses. The most famous, of course, is Baehr v. Miike.35 Earlier cases, such as Baker v. Nelson,36 Singer v. Hara,37 Jones v. Hallahan,38 and Dean v . District of Columbia,39 are likely familiar to many readers of this journal. The judges in those cases rejected all challenges, often with a breathtaking dismissiveness, based on the dictionary definition of marriage40 or a barely veiled religious view of what marriage must be.41
Some of the most revealing discussions of same-sex marriages and of the underlying visions of gender and marriage that make such a concept appear problematic, however, occur in cases involving transsexuals. In these cases, typically, there was a marriage. Thereafter, the husband sought an annulment on the grounds that he could not have been married to the defendant since she was also a man (or, conversely, a wife claimed that the defendant-husband was really also a woman).
The best known and most extensive discussion is in the British case of Corbett v. Corbett.42 Even for one who does not (as most judges would) find transsexualism itself peculiar, Corbett's facts are strange.43 The petitioner-husband, Arthur Corbett ,was already married when he met the respondent. He was a transvestite who associated with a "deviant" subculture and had engaged in homosexual encounters. Corbett was intrigued when he learned about April Ashley, who was born as George Jamieson, had spent time as a merchant seaman, had joined a troupe of female impersonators, and had later undergone sexual reassignment surgery. Arthur arranged a meeting with Ashley and apparently fell in love. His feelings for her "had become those of a full man in love with a girl"44 and he asked her to marry him, though he also testified that he was jealous of her success at femininity. The two spent less than two weeks together after the wedding and, within a few months, Arthur successfully sought an annulment on two grounds: April was a man and (s)he had refused to consummate the marriage.
In the course of his decision, Lord Ormrod, who was a physician as well as a judge,45 discoursed at length on the sexual peculiarities of the parties and on transsexualism in general. He set out several potential criteria for determining an individual's sex,46 and concluded that the most significant were those that he held constituted biological sex, i.e., chromosomes, gonads and genitals. These were fixed at birth and determined the individual's "true sex," which was unaffected by any later actions, including sexual reassignment surgery.47
Lord Ormrod's explanations for the importance of sex categorization and for choosing these criteria as those essential to that categorization are rooted in a particular,
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heterocentric view of marriage. He explained his decision as follows:
sex is clearly an essential determinant of the relationship called marriage, because it is and always has been recognised as the union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element . . . Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgment, on whether the respondent is or is not a woman. . . The question then becomes what is meant by the word 'woman' in the context of a marriage . . . Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.48
The heterocentrism is apparent; what is somewhat less clear is the judge's rationale for that heterocentrism. What is the "essential role of a woman in marriage" that requires that marriage match a "real" woman and a "real" man? One possibility is that it is that which Ashley concededly could not do -- procreate. As the state's testimony in Baehr shows, some proponents of limiting the right to marry argue that marriage is fundamentally a means to procreation.49
The logical flaws in such an argument are perhaps too obvious to mention, but I cannot resist. First, no state has ever required proof of capacity to procreate before issuing a marriage license to a different sex couple, as the regular weddings at Century Village retirement community attest. Second, procreation does not need marriage. Third, procreation does not, in the late twentieth century, even need intercourse, as the sperm banks set up to facilitate the lesbian baby boom demonstrate. Fourth, parenting does not require procreation: singles and couples, married and unmarried, straight, gay and transgendered can successfully adopt and raise children if the state will let them. Finally, even if we thought marriage was a good thing for those who were going to rear children, providing a stable home and more than one adult deeply committed to the child's day-to- day welfare, it is unclear how the children reared in marital homes would be harmed if Uncle Ted and Uncle George were also married.50
Alternatively, Lord Ormrod may have meant that the essential role of a woman in marriage is providing a vagina as a penis receptacle. Ashley was, however, a post- operative male-to-female transsexual; she had a vagina. Furthermore, an earlier case had held that a husband was not entitled to an annulment because his wife had a physical defect that rendered intercourse impossible, since an operation was available that could adequately enlarge her vaginal cavity.51 The judge in that case rejected the husband's argument that a "mere cul-de-sac leading nowhere" was insufficient.52 Lord Ormrod, however, in allowing Corbett's claim based on Ashley's alleged refusal to consummate, stated:
In any event, however, I would, if necessary, be prepared to hold that the respondent was physically incapable of consummating a marriage because I do not think that sexual intercourse, using the completely artificial cavity constructed by Dr. Burou, can possibly be described . . . as 'ordinary and complete intercourse' or as 'vera copula' -- of the natural. . . . When such a cavity has been constructed in a male, the difference between sexual intercourse using it, and anal or intra-crural intercourse is, in my judgment, to be measured in centimetres.53
The syllogism seems to be that (1) Ashley was born male; (2) therefore Ashley is still male; (3) therefore intercourse between a man and Ashley is inherently sodomy. For the judge to hold this marriage legitimate would be to break down the wall -- perhaps stretched to mere centimeters -- between `normal' heterosexual sexual relationships and gay ones.
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Most American cases involving actual or contemplated transsexual marriages follow a similar, though more abbreviated, logic. In Anonymous v Anonymous,54 a New York court granted an annulment. It could have done so solely on the grounds of the wife's fraud -- or perhaps the husband's incompetence -- since he alleged that he was unaware until his wedding night that his bride had male sex organs. This holding seems unexceptional. Whatever the limits may be to the doctrine of annulment on the grounds of fraud going to the "essentials of the marriage," it would seem that concealment of the fact that one does not have the equipment for the kind of intercourse one's spouse expects would qualify.55 The Anonymous court also held, however, that the marriage was void because the defendant was a man. Not only was he a man at the time of the marriage, with male genitalia, but, the court asserted, even sexual reassignment surgery would not make him the requisite "true female." Marriage required a true male and a true female, since its purpose was procreation. 56
Not long after Anonymous, the New York courts in B. v. B.57 faced a rarity among rarities: a challenge by a wife to the validity of a transsexual marriage.58 During their courtship, Frances B. explained, she had assumed Mark was a man, relying on his words, dress and appearance. Upon marriage she discovered he was incapable of normal sexual intercourse, since he "does not possess a normal penis, and in fact does not have a Penis."59 Mark answered that he was a female-to-male transsexual in transition. The court first held, citing both Anonymous and the gay marriage cases of Baker v. Nelson and Jones v Hallahan, that marriage required one male and one female since "the marriage relationship exists with the results and for the purpose of begetting offspring."60 Indicative of the court's confusion was its defining procreation as central, while citing as support cases holding that physical incapacity for sexual intercourse itself provided grounds for annulment. Given that "analysis," Mark was not and would never be male enough to be a husband. "While it is possible that defendant may function as a male in other situations and in other relationships, defendant cannot function as a husband by assuming male duties and obligations inherent in the marriage relationship."61
B. v B. suggested that categorization of a person by sex is a functional question and that Mark might be legally male in other contexts. Other courts, however, have been reluctant to recognize a sex change in other legal contexts for fear that it will facilitate the petitioner's ability then to marry in his new sex. For example, the immediate issue before the court in In re Ladrach,62 was the petitioner's ability, following sexual reassignment surgery, to obtain a new birth certificate, reflecting her current sex and name. The court, refused to order the bureaucracy to issue such a certificate precisely because Ladrach planned to use that birth-certificate sex to marry "another" man. One should highlight the irony of such a ruling. The petitioner, a male-to-female transsexual, could not have that change acknowledged on her birth certificate and thus could not marry a genetic man. Since she was still legally a man, then, she could marry a woman. In effect, the legal rule, designed to prevent same sex marriages, would forbid post-operative transsexuals from entering into what appears to be an opposite sex, heterosexual marriage. Meanwhile it would provide no basis for denying them a license to enter into what would appear to be, and what they and their partner would understand to be, a marriage between two men or two women.63
The most disturbing aspect of these cases is the normative imposition of a particular state-sanctioned view of marriage. Even where the parties are aware of the sexual identity of their partners, the marriage is void because it is not within the legally cognizable bounds of marriage. This conception of marriage, like the one underlying DOMA and the debate preceding it, treats the desires of the parties to the marriage as irrelevant. Marriage between any couple except a "real" man and a "real" woman is void. These holdings permit one of the parties to such a marriage to use the law strategically to avoid marital obligations they willingly and knowingly accepted, just as some lesbian biological mothers have sought to deny the legitimacy of their relationships in order to block their co-mother from continued access to their child.64 They would also apparently permit such a marriage to be ignored or challenged by third parties, such as parents, children of a prior marriage, insurance companies, or tortfeasors, who would benefit legally if the marriage did not exist, just as people in those categories benefit today from
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the legal invisibility of lesbian and gay relationships.
Just as Baehr seems poised to reverse a consistent pattern of losses in gay and lesbian marriage cases,65 there is one case in the line of transsexual marriages that gets its result right and its analysis partially right. M.T. v. J.T.66 involved a marriage between a man and a wife whom the husband knew had undergone male-to-female sexual reassignment surgery before the marriage. Indeed, they began living together before the operation and J.T. had helped pay for M.T.'s surgery. They married and lived as husband and wife for two years, regularly engaging in penile-vaginal intercourse. Nonetheless, when M.T. sued for divorce, J.T. countered that she was a man and that the marriage was therefore void. M.T., with the best possible facts for refusing to void the marriage, prevailed. The court assumed that marriages are heterosexual unions, between differently sexed persons.67 But it concluded that M.T. was a woman. It held, unlike Corbett, that the most important criteria for classifying a person as male or female, is core gender identity. At least where contemporaneous anatomy corresponded to core gender identity, these defined sex, regardless of chromosomes. Sex rested on "the dual test of anatomy and gender," which together determined sexual capacity, which was defined as "the coalescence of both the physical ability and the psychological and emotional orientation to engage in sexual intercourse as either a male or a female."68 Under this test, M.T. was a female and her marriage to a male was therefore valid..
In one sense, M.T. splits the interests of gays and lesbians from that of heterosexual transsexuals, since it assumes that heterosexual sexual intercourse is the defining marital act. Its analysis, however, provides a step forward from Corbett and Anonymous in advancing our mutual interest in de-heterosexualizing marriage and in exploding the conflation of sex, gender and sexual orientation. M.T. rejects procreation as the necessary purpose of marriage; instead it views the core meaning of the marital relationship as intercourse and intimacy. Procreation excludes our relationships by definition. While gays and lesbians can and do procreate, they do not do so by means of the couplings that would be recognized by same-sex marriage. Intimacy and intercourse, however -- at least if the latter is not narrowly limited to penile-vaginal forms of erotic intimacy -- are as descriptive of gay relationships as of heterosexual ones.69
The transsexual marriage cases are a revealing but an incomplete lens for examining the commonalities between the gay/lesbian and the transgendered communities which can provide the basis for political and strategic alliances. Most significantly, because they focus on relationships rather than directly on identity, they provide only an indirect view of the legal and cultural conflation of sex, gender and sexual orientation. The cases do, however, implicitly reveal the insistence, often in the face of contrary evidence, that society and law can and must divide people into two genders (masculine and feminine), which precisely map onto two sexes (male and female). In a range of areas, the demand for conformity to one of two (the right one of two) gender models disadvantages people who cannot or will not conform: transgendered people, as well as masculine women and effeminate men who don't identify themselves as transgendered.70 Many of these people are gay or lesbian; others are perceived as such because of ideological conflations.71 The conceptual separation of gender and sex and the liberation of individuals to define themselves within a far richer and more complex array of patterns than the dominant culture currently allows is crucial not only to transgendered people, but also to gays, to lesbians, to many women and to more men than would perhaps be willing to admit to a taste for the feminine.72
It is readily apparent that gender is neither inherent in the biology of sex differences nor naturally divided into two distinct and internally coherent categories. As a friend put it, "knowing who is the butch doesn't tell you who changes the tires." Less obviously, biological sex itself is also more complex than the dichotomous model,73 as the transsexual case law described above demonstrates. The criteria for classifying people as male or female include, in addition to the chromosomes, gonads, hormones, genitalia and psychological sex (presumably equivalent to core gender identity) mentioned in Corbett, such other characteristics as "internal sex organs other than the gonads (e.g. a uterus or sperm ducts);" "secondary sex characteristics (e.g., facial hair);" and "sex of rearing (usually the sex assigned at birth)."74 Furthermore, many of these criteria themselves do
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not divide people into two distinct groups. Intersexed people may have ambiguous genitalia or gonads that are male on one side and female on the other. Secondary sex characteristics are even more variable; there are women with more facial hair than some men and men with more developed breasts than some women. Even if an individual could be easily classified on each individual criterion, he or she might have "male" genitalia, but "female" secondary sex characteristics as a result of a lack of testosterone. Corbett and M.T. provide two of numerous possible formulae to apply in such cases. One lesson is that we cannot assume that sex is clear and simple; we cannot with certainty put each person into a box labeled "male" or "female."75
The difficulty of classification by gender or sex might make us consider whether and when society or the legal system needs to classify individuals by sex at all.76 And, of course, if the state did not engage in such classification, it would not and could not limit the right to marry based on that no-longer-legally available information. Same-sex marriage would be achieved as a political matter because the state would have no way of knowing as a legal matter the sex of the two parties to the ceremony.77
A challenge to the coherence of sex as a conceptual and not merely a legal category, however, is problematic for the gay/lesbian community.78 If our gay/lesbian identity rests on our sexual orientation, then characterization by sex -- of ourselves and of our objects of desire -- is central to that identity.79 If I am a lesbian, then I am a person attracted to people who are women, rather than men.80
One intriguing theoretical puzzle is whether what attracts one to other people is their sex or their gender.81 Is sexual orientation about attraction to organs and what we do with them or to feminine or masculine persons? The latter are clearly cultural constructs, though statistically highly linked to female and male anatomies. Like most interesting questions, the answer, I suspect, is a form of "it depends." Some of us, like some heterosexuals, are primarily erotically attracted to particular bodies; others have a sexual orientation rooted more in a desired intimacy with people of a particular gender (as is suggested, for example, by the notions of butch and femme). Because sex and gender are so conflated, we have only the merest fragments of data from which to theorize about what sexual orientation might mean in a world where gender either became disassociated from anatomical sex or disappeared as a coherent category.82 The responses of partners to transsexuals coming out may reflect such differences: perhaps those with sexual orientations leave, those with gender orientations are more willing to stay.83 Western cultural notions of masculinity and femininity might suggests that men are relatively more concerned with the anatomy of their objects of desire and women with their (often gendered) behavioral patterns.84 All that, however, is grist for another essay. For now, let us return to the subject of marriage, and particularly to the questions of how, who, when and where DOMA can and will be challenged.
II. Transgenders, Queers and DOMA
The right to marry and the significance of having or not having that right has long been significant for a theoretical understanding of the lives of gays and lesbians and of the forces of prejudice arrayed against us.85 These issues were immediately and concretely crucial for such transgendered people as M.T. and Ashley Corbett. Until recently, however, legally recognized gay marriage seemed so unlikely that it was not a major focus of the political agenda of the gay/lesbian community. Baehr v. Miike has radically changed the political landscape, for it now appears that same sex marriage will soon be a reality -- at least in Hawaii.86
Meanwhile, political pressures, largely fueled by the religious right, have rallied throughout the United States to derail gay marriage.87 Note that I say gay marriage here, though the Baehr litigation and the various marriage-restricting bills are articulated in terms of same-sex marriage. The opponents' rhetoric makes clear that they have conflated the two; the focus of the opposition is to two gay men or two lesbians celebrating and legitimating their love in a process that both recognizes that union with symbolic public approbation88 and provides the concrete economic benefits that "marriage" has always provided. The conflation assumes what is generally, but not necessarily, true: that a "man"
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who wants to marry another "man" is erotically attracted to the maleness or masculinity of his chosen partner. This would not be true if the marriage involved a female-to-male transsexual whose wedding preceded his surgery and his loyal, though not gay, husband. It also assumes away the possibility of companionate, but not erotically defined same-sex marriages in which sexual orientation is simply irrelevant to the marriage choice.89 This disjuncture between the language of "same-sex" and the legislatures' homophobic purpose may provide a wedge by which gay/lesbian and transgender activists and lawyers can cooperate and organize together. If we ignore our transgender compatriots, however, we may instead facilitate a resolution that disadvantages us by shifting the focus from marriage, intimacy and gender equality to a sexual orientation-specific focus on sodomy.
Those lawyers and activists who are planning for the coming court battles over same-sex marriages have focused in significant part on DOMA. They also recognize that new state laws explicitly restricting marriage licenses, as Florida has long done, to applicant couples in which "one party is a male and the other party is a female," or that explicitly refuse to recognize out-of-state same-sex marriages will naturally frame the strategic choices of what issues to litigate in which jurisdiction.90 I, too, will focus on DOMA, but note how any particular legal case must also take into account the relevant state law.
DOMA, the extraordinarily ill-named Defense of Marriage Act, was passed by Congress and signed by President Clinton in late 1996.91 The statute has two substantive parts. The first, in effect, authorizes states to ignore same-sex marriages entered into in other states, contrary to the usual understandings of constitutional and statutory full faith and credit.92 No state "shall be required to give effect to any public act, record, or judicial proceeding" of any other state "respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . . or a right or claim arising from such relationship."93
The second substantive section of the statute announces that the federal government shall ignore such marriages. "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman." In such federal statutes, regulations, etc., "the word `spouse' refers only to a person of the opposite sex who is a husband or wife."94 This last is grammatically awkward, for everyone is of the "opposite sex" of some people and the "same sex" as others.95 Nonetheless, the legislative history and context leave little doubt who is opposite to whom: men to women, husbands to wives, and the Congress and President to gays, lesbians and transgendered people.
This statute has a wide range of implications, some of which are more readily challengeable than others. Lawyers and activists seeking to overturn the statute must strategize carefully to consider how best to structure challenges to the statute to maximize the chances of winning and to maximize what will be won. Those of us engaged in such work, however, must also recognize the procedural openness of our legal system: we have no litigation fuhrer with the power to control the filing and management of lawsuits. Effective strategizing thus also requires involving as many potential relevant players as possible in the process. And this is where our transgender colleagues must be our transgender allies, or we are all worse off. The first situations that may be "ripe" for litigation under DOMA may well not involve Hawaii marriages between two genetic men or two genetic women, but already existing marriages between transgendered people and their spouses.
DOMA says nothing about the authority of Hawaii or any other state to permit or forbid a marriage under its laws to a same-sex couple who meet the state's own residency requirements for issuing a marriage license. A challenge to DOMA, then, assumes a marriage that has already occurred and is valid according to the laws of the state where it was celebrated. The second part of DOMA will create cognizable harm when someone in such a marriage is denied some federal benefit to which he or she would otherwise be entitled. The first part will be challengeable when one or both partners to such a marriage seek to enforce a claim in a state other than the state in which they were married and that state, relying on DOMA, refuses to recognize the marriage or its legal consequences. No
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such marriages between gays and lesbians will arise, however, until the Baehr litigation is concluded, a process that will take us well into 1997 and perhaps into 1998.96
Meanwhile, there already exist what arguably are same sex marriages. There are, for example, marriages which might be seen as same-sex because one of the partners is intersexed, meaning that he or she is not clearly male or female at birth and thus not clearly of the "opposite sex" from his/her spouse.97 Particularly as to intersexed persons, challenges to the marriage are unlikely, since there is presumably a long-standing social agreement as to what sex this person shall be designated, even if there has not been "corrective" surgery to construct external genitalia that unmistakably match that designation. So long as no one has a motive to challenge the sex classification, marriages involving intersexed persons provide a conceptual but not a likely practical basis for challenges to DOMA.
Where one of the partners has changed sex -- that is, in the situation of transsexual marriages like those discussed above -- the likelihood of a challenge to the sex designation of that spouse and thus a claim that DOMA permits a court or agency to ignore the marriage, is greater. The transsexual marriages that might lead to DOMA-based harms and thus to challenges to DOMA, come in two forms. First, a challenge may arise in cases like M.T. or Corbett, involving a marriage between a person of one sex and a person who has transitioned to the other sex, for example a genetic man and a male-to- female transsexual. Licenses for such marriages may have been obtained either because the documentation of the transsexual partner had been changed to reflect her new sex or because the bureaucrats in the state where the marriage was performed, seeing what appeared to be an ordinary male-female couple, never asked for documentary proof of sex.98 Since the then-married couple does not appear to raise any same-sex marriage issues, the challenge to the validity of the marriage will likely arise as a litigation tactic by the non-transsexual spouse, as it did in Corbett and M.T., or by some other party with knowledge of the transsexualism who would benefit by having the marriage declared void. Imagine a divorce case or an inheritance case in which the issue of transsexualism is raised and in which the marriage was celebrated in New Jersey, between New Jersey residents, and litigation later arises in Florida.99 Ordinarily, the Florida court would look to the law of New Jersey to decide the validity of the marriage.100 A marriage that was valid when performed in New Jersey, usually remains valid even after the spouses move to Florida. Thus, one spouse can seek spousal support or division of property in connection with a divorce. Similarly, the surviving partner will be deemed a widow(er) entitled to inherit in preference to, say, the deceased partner's parents.101 Either spouse will be entitled to bring a loss-of-consortium claim if the other spouse is injured during their vacation in Florida.102
The traditional understanding, however, is that the obligation to recognize out-of- state marriages is not absolute. Rather, it has not infrequently been limited by the application of one or both of two principles: a lesser willingness to defer to the law of the state or celebration in the case of "evasionary" marriages,103 and where the marriage is contrary to the "strong public policy" of the forum state.104 Neither of these principles provides a clear and universal rule for classifying those cases where out-of-state marriages will not be recognized; the application of each varies across jurisdictions and according to the context of the suit and the extent to which failure to recognize the marriage would disrupt the legitimate and settled expectations of the parties.105 Nonetheless, it is fair to say that, as family law has traditionally been understood, marriages as such aren't entitled to full faith and credit.
The issue of what "full faith and credit" might mean as applied to marriages has never been directly faced by the Supreme Court.106 The likely answer is complicated by the ambiguity of what marriages are within the terms of the full faith and credit clause: acts, records or judicial proceedings?107 The characterization chosen is likely to matter. In prior cases, the Supreme Court has held that a very strong form of full faith and credit applies to the judicial proceedings of another state,108 while it has consistently permitted states to limit much more the application in their courts of the "acts," (meaning the statutes) of other states.109 How far the Supreme Court would go in requiring one state, under the clause, to recognize the "records" of another state, is still harder to predict, because there is essentially no case law directly on point. Yet the likeliest characterization of a marriage
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may be precisely as a "record," that is, a private action, pursuant to the state's laws, of which the state keeps records, rather than the action of a judge ("judicial proceeding") or of the state legislature ("act").
Consider the options the Florida court might have when faced with the claim that it need not recognize the validity of that New Jersey marriage. First, it might apply what it believes to be settled law, consistent with the full faith and credit clause,110 and refuse to recognize the marriage as evasionary (if it had involved Florida residents who had gone to New Jersey to take advantage of its more generous marriage laws and then returned home) or contrary to its "strong public policy."111 Under such an analysis, DOMA is superfluous, for the analysis assumes that Florida was already free not to grant full faith and credit to the New Jersey marriage. Second, the Florida court might decide, as a matter of its own choice-of-law rules, that it should recognize the marriage, even if it could not have been celebrated in Florida. Since DOMA only purports to permit, not require, the non-recognition of sister-state marriages, it is again superfluous.112 Third, the Florida court might hold that the constitutional full faith and credit clause would have required it to recognize the marriage, but that Congress could and did modify that obligation when it passed DOMA and then rely on DOMA to refuse to recognize the marriage. Finally, it could conclude that DOMA would permit it to refuse to recognize marriages otherwise protected by the full faith and credit clause, but that DOMA is unconstitutional. In the context of challenges to the validity of marriages themselves, the first or second approaches -- each of which would render DOMA irrelevant -- seems the most likely. Thus, such litigation may well provide a poor test case for determining DOMA's constitutionality.113
We would have another, stronger test case, if DOMA were invoked to refuse to recognize the judgment of another state's court. Consider again our hypothetical transsexual New Jerseyan and his/her spouse. Assume they are divorced in New Jersey and, as part of the property division, the husband is ordered to sign over the title to certain Florida property to his wife. The husband, having moved to Florida, refuses to do so; the wife seeks to have her New Jersey judgment enforced by the Florida courts, and the husband then defends by arguing that his former "wife" is really a man and thus that the marriage can be treated as void. DOMA seems to say that Florida is free to do as he asks and ignore the New Jersey divorce judgment, since the former wife is asking Florida to "give effect" to a "judicial proceeding . . .respecting a relationship between persons of the same sex" that was treated as a marriage and to give effect to a "claim arising from such relationship." Similarly, DOMA would seem to suggest that Florida would be free to refuse to enforce a judgment for loss of consortium obtained in a New Jersey lawsuit against the drunken Florida driver who injured one's same-sex spouse.
Absent DOMA, however, this is the core situation for the application of full faith and credit. Even if the forum state would itself not recognize a cause of action, full faith and credit demands that it enforce the judgment of another state based on such a claim.114 Ours is a unified, although federal, system in which people do not lose their established legal rights because they have moved across state lines (or, still worse, because their debtors do so).115
In a case structured like this, the court would almost surely have to consider the arguments that DOMA is unconstitutional.116 A number of such arguments are possible. First, although the constitutional full faith and credit clause gives Congress the power to prescribe the manner of proving an act, record or judgment and "the effect thereof," it is unclear whether the language authorizes Congress to deny such recognition to a certain class of judgments, or only to implement what appears to be a universal obligation in the constitutional text to recognize the judgments of sister states.117 Other potential bases for holding DOMA unconstitutional include the constitutional right to travel,118 due process and equal protection.119 If any of these arguments succeeded,120 Florida would be required to enforce a judgment rooted in the New Jersey marriage between a post-operative transsexual and her "same-sex" spouse.
A transsexual and his/her partner might also provide the test case to challenge DOMA or state law limitations on the recognition of same-sex marriage via a different route. Begin with a traditional mainstream couple: he is genetically, anatomically, and
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chromosomally male and dresses and acts in a masculine fashion; she is similarly female and feminine. One of them, after the marriage, recognizes that he or she is a transsexual.121 Assume, for example, that the wife comes to understand himself to be a man, although born with female anatomy.122 He then begins to dress and act as a man, takes male hormones and ultimately undergoes sexual reassignment surgery.123 The husband may, of course, decide that this was not part of his expectations at marriage and seek a divorce.124 But not all partners of transsexuals are, in effect, so committed to sex and sexual orientation as central to their intimate lives, or their marriages. The husband may decide that he still loves and wishes to remain married to the person whom he married; the transsexual spouse may also want to remain in the marriage, whether because he understands himself to be a gay man or because, whatever his erotic interests, he still loves his husband. We now have, for all intents and purposes, a same-sex marriage, which may or may not be a "gay marriage." In effect, this is the situation that Baehr makes doctrinally central: it is about gender/sex, not necessarily about sexual orientation.
Of course, one could argue that this is not a same-sex marriage. If Corbett were right, and sex is defined by chromosomes, the wife is still a woman, though he is now a woman with a penis. And, as a woman, he is entitled to marry a man or, certainly, remain married to a man. He is a "person of the opposite sex who is a wife." Nonetheless, by external appearances and by the self-understanding of the spouses, this has become a same-sex marriage.125 Such a couple might present the same problems of interstate recognition of marriages and of their legal consequences, whether or not embodied in judgments, as were described above.126 Furthermore, unlike the apparently different sexed couple in the hypothetical above, such a couple would appear to be involved in a same- sex marriage.127 They are thus more likely to face the denial of any of a range of federal benefits contingent on marriage. A social security agency may be unwilling to grant a surviving spouse's benefit, upon the death of a male worker, to a person who looks like a man and says he is a man. The I.N.S. might be unwilling to grant the spousal immigration preference to a female United States citizen's female spouse. An IRS auditor may challenge a joint tax return signed by Anne and Linda Smith. In such cases, the spouse/couple will presumably seek to protect their access to the benefits associated with their marriage by raising all possible constitutional arguments.128
As a matter of formalist legal doctrine, these transsexual same-sex marriage situations are analogous to the cases that might be presented by gay or lesbian couples who will be married in Hawaii.129 Because these marriages already exist, however, the cases may well arise before gay/lesbian same sex marriages even occur. Whether transsexuals end up litigating the validity of their marriage under DOMA depends on the actions of both the federal authorities and of the parties to such marriages.130 To some extent, then, the context in which the first DOMA challenges will occur is wholly outside the control of activists in even the transgender community, let alone the gay and lesbian community. The course of such litigation, however, and the strategic decision-making surrounding it, are not wholly uncontrollable.
In considering how to deal with the significant possibility that these first challenges will involve a transgender marriage, those of us whose primary concern is the validity of gay and lesbian marriages, must examine both the legal and the political commonalities and differences between our marriages and transgender marriages, between our political interests and the political interests of the transgender community. In trying to imagine how a court will respond to a transgender marriage case, one must recognize the various ways in which a court
might distinguish it from a gay or lesbian marriage. In some ways, transgender marriages may appear even more problematic; public understanding and support of transsexuals is probably still at a more primitive stage than that for gays and lesbians, especially gays and lesbians who seek the relatively traditional lifestyle defined by marriage.131 Similarly, equal protection arguments based on sexual orientation seem more legally and politically plausible at this point than equal protection claims raised by transsexuals. On the other hand, as Phyllis Randolph Frye, a leading transgender activist, has argued,132 there is a factually appealing case for finding against DOMA and thus in favor of the marriage, when the non-transgendered partner, especially to a "post-wedding transsexual marriage," is the litigant. Here is a person who has chosen to "stand by his
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man" and to maintain a marriage, while the state is seeking to break up that marriage or to deny him benefits he has always had. Family values are about limiting divorce, not imposing it on those who want to continue being married.
The different potential litigation structures present cases of differing strengths, whether the litigants are a transgendered person and spouse or a gay or lesbian couple. For example, as I suggest above, it is much harder to argue that DOMA is unconstitutional when applied to the recognition of a marriage than when applied to the recognition of a judgment, such as a divorce decree or a judgment in a wrongful death claim against the killer of one's same sex spouse, which "aris[es] from [a same-sex marital] relationship."133 On the other hand, winning the easier case may result in a judgment of limited effect. If our divorces are recognizable everywhere, but our marriages are not, we can go to Hawaii to marry, but we can't safely leave.134 There are similarly complex judgments involved in strategizing over which cases to bring, which arguments to raise, and in which states to litigate, and in picking the cases with the best facts and the most attractive plaintiffs. Deciding whether the "best" plaintiffs for a particular challenge are a gay couple, a heterosexual transsexual couple, or even a gay transsexual couple would be part of that strategizing. For example, while I agree with Ms. Frye's position that a spouse of a transsexual presents a particularly appealing litigant, I disagree with her apparent position that the spouses in such a marriage file a proactive lawsuit seeking a proclamation that such a marriage is still valid.135 I would await a case in which someone is indisputably seeking to take some marriage-related benefit away and then defend the validity of the marriage.
The previous paragraph assumed away, by its use of the term "we," the question of who is to make such decisions. To some extent, we are all hostage to any lawyer or any pro se litigant anywhere who has a situation in which DOMA is potentially at issue.136 Ideally, the litigation strategy will be more considered; even in such cases, other lawyers and activists may be able to engage in consultation or amicus briefing to help shape the litigation. In thinking about litigation strategy, the civil rights struggle provides a good model. Cases were chosen by the NAACP to present a series of issues in an order that moved the courts along a path to desegregation.137 Litigation was also recognized as part of a larger context. One wants to win in court, of course. But public interest litigation, properly understood, is also an aspect of community organizing and lobbying efforts. What is absolutely necessary, especially for gays and lesbians, is that the group of lawyers and activists who help craft such strategy include leaders of both the transsexual and the gay/lesbian communities.138 The marriages of transsexuals and their partners are the ones first at risk. Those of us in the gay/lesbian community cannot ask them to wait for us to litigate our cases, especially if and when they suffer concrete harm, merely because the proponents of DOMA only meant to harm us.139 They did not, I think, mean to harm only us. Here, as elsewhere, we share common enemies and therefore common concerns. Here, as elsewhere,140 we cannot know what may be the depth or breadth of our commonalities in a world without such common enemies. I look forward to the world in which the answers to that question can be explored.
* Professor of Law, University of Miami School of Law. Thanks to my colleagues, Marc Fajer and Clark Freshman for their useful comments, only some of which I was wise enough to adopt here, to my research assistant, Mary Claire Pitochelli, and to the reference librarians at the University of Miami Law Library, who have pulled my chestnuts out of the fire more times than I care to remember.. 1 The Defense of Marriage Act, PL 1-4-199 (Sept. 21 1996)(will be codified at 28 U.S.C. 1738C [Section 2] and 1 U.S.C. Section 7 [Section 3]). 2 Another such lens is the "gender identity disorder of childhood" by which the psychiatric profession seeks to label and then "cure" children who might otherwise grow up as gay or transgendered. See Eve Kosofsky Sedgwick, How To Bring Your Kids Up Gay, in FEAR OF A QUEER PLANET 69 (Michael Warner ed. 1994); Shannon Minter & Phyllis Randolph Frye, GID and the Transgender Movement: A Joint Statement by the International Conference on Transgender Law and Employment Policy (ICTLEP) and the National Center for Lesbian Rights (NCLR)(1996) (unpub. ms., on file with author).
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3 See infra notes 13-14, 20 and accompanying text. 4 Because I focus on the question of political alliance between the two communities, and approach the issue from the perspective of a gay/lesbian/bisexual academic, I use the term "we" to refer to members of that community. 5 See, e.g., Carey Goldberg, Shunning `He' and `She,' They Fight for Respect, N.Y. Times, Sept. 8, 1996 at A10. 6 The recent results of an Advocate Poll, indicating that 64% of respondents felt that "gay and lesbian civil rights groups [should] make an effort to support the cause of transgender rights" was heartening. See THE ADVOCATE 8 (Feb. 4, 1997). 7 See, e.g., Betty Friedan, THE FEMININE MYSTIQUE (1963). 8 See Del Martin and Phyllis Lyon, LESBIAN WOMAN 256-76 (1972); Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 BERKELEY WOMEN'S L. J. 191, 198-99 (1989). 9 See generally Elizabeth Spelman, INESSENTIAL WOMAN (1988); Denise Riley, AM I THAT NAME? (1988). 10 The term is stolen from Andrew Sullivan, VIRTUALLY NORMAL (1995). 11 In both cases, the question whether this self-presentation is "true" and what it would mean to truly be "virtually normal" or "queer" is beyond the scope of this essay. 12 As is apparent, the terms "gay and lesbian" or "homosexual" also implicitly exclude another group at the margins of our community: bisexuals. Since that identity is determined on the same characteristic -- the sex/gender of those to whom one is erotically attracted -- as gay or lesbian identity, their exclusion/neglect is even less conceptually justifiable. The category here, though not linguistically marked as such, is intended to include bisexuality and bisexuals as well. For extended discussion of the relationship between bisexual and homosexual identity, see generally Ruth Colker, HYBRID: BISEXUALS, MULTIRACIALS AND OTHER MISFITS UNDER AMERICAN LAW (1996); Naomi Mezey, Dismantling the Wall: Bisexuality and the Possibilities of Sexual Identity Classification Based on Acts, 10 BERK. WOMEN'S. L. J. 98 (1995).
If one wants to further complicate matters, one might note that, if transsexuals are viewed as neither male nor female, then one who has sexual relations with them is not readily classified as either heterosexual or homosexual. Cf. Sue-Ellen Jacobs & Jason Cromwell, Visions and Revisions of Reality: Reflections on Sex, Sexuality, Gender and Gender Variance, 23(4) J. HOMOSEXUALITY 43, 55-56 (1992) (noting the term "trisexual" among the Tewa Indians for one who has sex with men, women and kwido, who are seen as neither/both). 13 Analysis of transgender issues thus provides a means for examining the analytical distinctions between sex and gender. See, e.g., Meredith Gould, Sex, Gender, and the Need for Legal Clarity: The Case of Transsexualism, 13 VAL. U. L. REV. 423 (1979). Unfortunately, perhaps in a misguided attempt to desexualize the concept of sex discrimination, the Supreme Court has misused the term gender when it means sex. See, e.g., J.E.B. V. Alabama ex rel. T.B., 511 U.S. 127 (1994) , 114 S.Ct. 1419, 1428 and Justice Scalia's dissent therein, noting that the case "does not involve peremptory strikes exercised on the basis of femininity or masculinity. . . [t]he case involves. . . sex discrimination plain and simple." Id. at 1436 n.1.
In thus separating sex and gender analytically, I do not mean to accept the notion that gender is the epiphenomenon of sex. Rather, I believe it is closer to the truth, as Katherine Franke says, that "sex bears an epiphonemenal relationship to gender; that is, under close examination, almost every claim with regard to sexual identity or sex discrimination can be shown to be grounded in normative gender rules and roles." Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 2 (1995) For purposes of this essay, the central fact is the distinction between sex and gender, not their logical or metaphysical relationship. 14 Richards v United States Tennis Association, 93 Misc. 2d 713, 400 N.Y.S.2d 267 (1977). 15 Cf. Doe v Boeing, 846 P. 2d 531 (Wash. 1993) (transsexual engineer at Boeing sued unsuccessfully after she was terminated for wearing "excessively feminine" clothing). Given the limited success of transsexuals in legal challenges, it is unlikely that any transsexual who cannot afford attorney's fees will be able to hire private counsel on a contingency fee basis. There is also, to my knowledge, no established national public interest organization whose focus is the pro bono litigation of transgender legal issues. 16 Edward S. Davis, Note, The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma, 7 CONN. L. REV. 288, 292 (1973). But see Michael W. Ross, Gender Identity: Male, Female or a Third Gender?, in TRANSSEXUALISM AND SEX REASSIGNMENT (William Walters & Michael Ross, eds. 1986)(noting that there is no necessary link between transsexualism and sexual orientation and citing one study that showed that post operative transsexuals were disproportionately homosexually oriented).
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17 "A review of the professional literature revealed that heterosexuality was frequently cited as an intrinsic attribute and defining feature of transsexualism." Anne Bolin, Transcending and Transgendering: Male-to-Female Transsexuals, Dichotomy and Diversity in THIRD SEX, THIRD GENDER: BEYOND SEXUAL DIMORPHISM IN CULTURE AND HISTORY 447, 460 (A. Marina Iossifides, ed. 1995). See also Harry Benjamin, THE TRANSEXUAL PHENOMENON 22-23 (1966)(defining transsexuals as, inter alia, oriented towards persons of the "opposite" sex of his/her psychological sex). Furthermore, traditionally "transsexuals are . . . required to divorce their spouses before a surgeon may perform the conversion operation" so as not to create a legal same-sex marriage. Bolin, at 454. Nonetheless, studies of transsexuals themselves suggest that a substantial proposition define themselves as gay or bisexual. Kim Elizabeth Stuart, THE UNINVITED DILEMMA: A QUESTION OF GENDER 49-60 (1983). 18 In this paper, I avoid use of the term "opposite" sex, except in quotations. While male and female are different, the notion of "opposite" suggests a greater distinction than seems true of human beings who share their membership in the species homo sapiens, and whose variability within sex categories is vastly greater than the variability between men and women. The term "opposite sex" also embeds a heterocentrist notion of a natural relationship between the sexes ("opposites attract"). The concept of the two sexes as opposite, which may seem natural and biological, is in fact historical and contingent. See Thomas Laqueur, MAKING SEX: BODY AND GENDER FROM THE GREEKS TO FREUD (1990); Franke, supra n. 13, at 70-74. 19 "Transsexuals usually just want to live their lives as men and women and do not ordinarily want to be part of any particular group, life-style, or social cause," Stuart, supra n. 17, at 47. See also Anne Bolin, IN SEARCH OF EVE: TRANSSEXUAL RITES OF PASSAGE 70-71 (1988)("[a]t some point during full-time status [male-to-female transsexuals] transform their personal and social identities to the point that they view themselves as natural women. . . and reject their transsexual identity as well as the term passing").
Transsexuals might also be seen as the conservative wing of the transgender community because they do not challenge the notion that there are two sexes and two genders which match them, only their individual place within that framework. See Leslie Pearlman, Transsexualism as Metaphor: The Collision of Sex and Gender, 43 BUFF. L. REV. 835, 846 (1995) (sexual reassignment surgery "essentially reassigns individuals from an existence which represents a fundamental challenge to social construction of gender... to an existence which is no longer threatening"). 20 See Goldberg, supra n. 3; Gordene Olga MacKenzie, TRANSGENDER NATION (1994) (arguing that demand for sexual reassignment surgery as a response to "gender dysphoria" is culturally contingent and proposing non-surgical cross-gender living along the model of the berdache). Only in the last few years have transgendered persons formed an organization, It's Time, America, specifically designed to advance their interests in the political arena. See Jane Fee, Round Table Discussion on Transgender Activism, PROCEEDINGS OF THE FOURTH INTERNATIONAL CONFERENCE ON TRANSGENDER LAW & EMPLOYMENT POLICY 59 (1995). See generally on the development of open and politicized transgender organizations, Bolin, supra n. 17 at 472-74. 21 Psychologists and other outside "experts" generally use the term transvestism for this phenomenon; those within the community generally prefer the term cross-dressing. 22 See Bolin supra n. 17 at 458. The extent to which transsexualism and transvestism are distinctive phenomena is a matter of contention, with transsexuals more likely to perceive the two as entirely distinct and crossdressers to perceive a continuum between them. Ibid. at 457-48. 23 Bolin, supra n. 17, at 451, notes that "gay cross-dressers were eliminated from the Berdache Society," which thus became an organization solely for male-to-female transsexuals and heterosexual male cross- dressers. 24 See MacKenzie, supra n. 20. 25 See nn. 28-29 infra and accompanying text. I believe that the move toward alliance with the transgendered community reflects, and is partly dependent on, the change within the gay and lesbian community to include our gender rebels. By contrast, the proponents of a lesbian feminism that condemns butch and femme roles cannot accept the possibility of political or epistemological linkages with transgenderism. Cf. Janice Raymond, THE TRANSSEXUAL EMPIRE (1994)(harsh feminist critique of transsexualism).
Nonetheless, the alliance is not a simple one. Insofar as transsexuals insist that maleness is defined by masculinity and femaleness by femininity, they challenge the insistence of many effeminate gay men and butch lesbians (as well as of more radical transgenderists) that one's sex is not dependent on one's gender presentation and, indeed, that there is nothing necessarily binary about gender itself.
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one sees a struggle over history: are those women who cross-dressed to avoid the strictures of the female role proto-transsexuals or proto-lesbians or both? More contemporaneously, consider the hostile reaction of transgender activists when a Village Voice writer referred to murdered female-to-male transsexual Brandon Teena as a lesbian, in effect denying Teena the pronoun he died for claiming. See Michelangelo Signorile, Transgender Nation, OUT 40 (June 1996). Transgender folks and their allies have also condemned the erasure of the transgenderism of the leading figures in the Stonewall riots. See, e.g., Elvia R. Arriola, Faeries, Marimachas, Queens, and Lezzies: The Construction of Homosexuality Before the 1969 Stonewall Riots, 5 COLUM J. GENDER & L. 33 (1995). Bolin, supra n. 17. at 477, suggests that the common use of the berdache as a model by the transgender and homosexual communities may facilitate affiliation between the groups. 26 See, e.g., Martine Rothblatt, THE APARTHEID OF SEX: A MANIFESTO ON THE FREEDOM OF GENDER 3 (1995) ("[m]anhood and womanhood can be life-style choices open to anyone, regardless of genitalia"). 27 Personal Conversation with Tom/Sharon during the Sixth Annual Conference of ICTLEP (Houston Texas, July 4-6,1996). See also Richard M. Levine, Crossing the Line: Are Transsexuals at the Forefront of a Revolution -- Or Just Reinforcing Old Stereotypes About Men and Women? at http://bsd.mojones.com/mother_jones/MJ94/levine.html. 28 Bolin, supra n. 17 at 447. 29 Although some of her correspondents still assume cross-dressing equals homosexual, that repository of Middle American wisdom, Ann Landers, reports that experts say "while some cross-dressers are homosexual or bisexual, some are not." Ann Landers, Couples can Come to Terms with cross-Dressing Issue, Miami Herald, May 21 1993, at 2F. See also Ann Landers, Cross Dressing Is Not Necessarily Homosexuality, Miami Herald, January 13 1997, at 5C. 30 Furthermore, any link could not be "logical," since the concepts of sex and of sexual identity are socially constructed and contingent. I make here the additional point that, even as those two concepts are currently understood, there is no reason to assume any particular relationship between one's sex/gender identity and one's sexual orientation identity. 31 See generally on the persecution of both homosexuals and cross-dressers as part of a patrolling of gender boundaries, Arriola, supra n. 25 at 59-60. 32 For example, Robert H. Knight, the "director of cultural studies" for the Family Research Council, who has denounced gay marriage, described transgenderism as "yet another social pathology" which "is part of a larger cultural movement to confuse the sexual roles and to usher in a relativistic mind-set concerning sexuality itself" Career Opportunities, Lingua Franca 13 (December/January 1997). Lon Mabon, leader of the Oregon Citizens Alliance is pushing an initiative that "would define marriage as a strictly heterosexual institution and gender as something that is determined at conception." Associated Press (Dec. 14, 1996). It is important, however, to avoid participating in the conflation of our related, but distinct concerns. Thus we should be cautious in cross-citing precedents from the two regimes. In the marriage area, the overlaps are sufficient that we can generally do so, though with vigilance to make clear where we have different claims. But consider, for example, the question of qualifying for heightened scrutiny under the Fourteenth Amendment. Gay/lesbian and transgender plaintiffs alike can argue for the importance of oppression and the significance of the conflation of both characteristics and gender. On the other hand, the empirical question, insofar as it matters, of whether the characteristic is biological and immutable, is a different question when applied to sexual orientation than when applied to transsexualism. Thus, however much one may cheer the outcome of Brown v Zavaras, 63 F. 3d 967, 971 (10 Cir. 1995) (reversing summary judgment for defendants in a case brought by a transsexual prisoner seeking medical treatment), one cannot rely on "[r]ecent research concluding that sexual identity may be biological," where some of the cited material refers to orientation, as a basis for arguing that transsexualism is immutable. 33 Mary Anne Case, Disaggregating Gender from Sex and Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J 1 (1995); Franke, supra n.13; Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of `Sex,' `Gender,' and `Sexual Orientation' in Euro-American Law and Culture, 83 CALIF. L. REV. 1 (1995).. 34 I bracket here the ways in which marriage is treated both as a relationship defined by law and as a fundamental aspect of human existence that exists apart from law and upon which law acts. See generally the rhetoric of the case law declaring marriage a fundamental rights in e.g., Griswold v Connecticut, 381 U.S. 479, 486 (1965). See also Note, Patriarchy Is Such a Drag: The Strategic Possibilities of A Postmodern Account of Gender, 108 HARV. L. REV. 1973, 1980-83 (1995). 35 The Hawaii Supreme Court decision holding that laws barring same-sex marriage violated the state
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constitutional ban on gender discrimination unless they could be shown to be necessary to a compelling state interest is reported as Baehr v Lewin, 852 P.2d 44 (Haw. 1993). On remand, the trial court found that the state had failed to establish such a compelling state interest. Baehr v Miike, 1996 WL 694235 (Cir. Ct. Haw. No. 91-1394, Dec. 3, 1996). 36 191 N.W. 2d 185 (Minn. 1971), aff'd, 409 U.S. 810 (1972). 37 11 Wash. App. 247, 522 P. 2d 1187, rev. denied, 84 Wash. 2d 1008 (Wash. Ct. App. 1974). 38 501 S.W. 2d 588 (Ky. Ct. App. 1978). 39 653 A. 2d 307 (D.C. 1995). 40 Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. Ct. App. 1978). 41 Baker v. Nelson, 191 N.W. 2d 185, 186 (Minn. 1971). 42  P. 83,  2 All E.R. 33,  2 WLR 1306. 43 The case involved "a relationship with a rather odd man of varied sexual inclinations: heterosexual, homosexual, and transvestite," Douglas K. Smith, Comment, Transsexualism, Sex Reassignment Surgery, and the Law, 56 CORNELL L. REV. 963, 1007 (1971) (footnotes omitted). 44  2 All ER at 38 (quoting Arthur Corbett). 45 Comment, supra n. 32, at 1005 n.277. 46 The listed criteria include (i) Chromosomal factors; (ii) Gonadal factors (i.e., the presence or absence of testes or ovaries); (iii) Genital factors (including internal sex organs); (iv) Psychological factors; (v) Hormonal factors or secondary sexual characteristics (such as distribution of hair, breast development, physique, etc. which are thought to reflect the balance between the male and female sex hormones in the body).  2 All ER at 44. 47 Such surgery would have no effect on the person's chromosomes and could not produce functioning gonads (i.e., testes or ovaries). While external genitalia are constructed in such surgery, Lord Ormrod determined, in effect, that these were not sufficiently functional to count in his analysis. 48  2 All ER at 48 [emphasis added]. 49 See Baehr v Miike, 1996 WL 694235 at *6-7.(findings of fact 44-45) Cf. the writings of conservative critics of gay rights, including the right to same-sex marriage, on the grounds that "`[s]exuality' refers to that part of our nature that has as its end the purpose of begetting. . . other forms of `sexuality' may be taken as minor burlesques or even mockeries of the true thing," Hadley Arkes, Questions of Principle, Not Predictions: A Reply to Macedo, 64 GEO. L.J. 321, 323 (1995). See also John M. Finnis, Law, Morality, and `Sexual Orientation,' 69 NOTRE DAME L.J. 1049, 1066-67 (1994). 50 Cf. Jonathan Rauch, For Better or Worse? THE NEW REPUBLIC, May 6, 1996, at 18, 22.(arguing, contrary to conservative opponents of same-sex marriage, that purposes for promoting marriage include "domesticating men and providing reliable caretakers" as well as promoting procreation). For arguments for permitting gay marriages, despite their nonprocreative character, see generally William N. Eskridge, Jr., THE CASE FOR SAME-SEX MARRIAGE 62-74 (1996).
As Senator Barbara Boxer somewhat flippantly asked in her floor statement opposing DOMA, "Does the author of the bill in the House, whom the press says has been married three times, truly believe that the Defense of Marriage Act would have made him a better husband or his wives better wives?"( e- mail from Senator Boxer, Sept. 18 1995) (on file with author). 51 S.v.S. (otherwise W.),  3 All ER 55, sub nom S.Y. v S.Y.,  P 37,  3 WLR. 526. 52 Id. at 59. 53  2 All ER at 49. The term "intra-crural" refers to a form of intercourse in which the penis of one partner moves back and forth between the thighs of the other. 54 325 N.Y.S. 2d 499 (1971). 55 The naivete‚ or subconscious desire implicit in the action of the husband in Anonymous is less extraordinary than one might imagine. It is central to the plot in David Henry Hwang's Broadway hit, M. Butterfly, the true story of a French diplomat who falls in love with his ideal "woman," only to discover that his amour is a Chinese male spy cross-dressed as a woman.(1988). More recently, Bruce Jensen, a Utah Mormon married the cross-dressing Felix Urioste, on the belief that he had gotten her pregnant. He learned of his bride's true sex only when the police found him/her after Jensen had filed a missing persons report. Again, annulment was the natural and available solution, although the media attention suggested that the case raised questions regarding the sophistication and the "manhood" of the good citizens of Utah. Of course, as one of Bruce's neighbors explained, he was "just a little country bumpkin from Wyoming." `Nice Guy' Amazed to Find Jailed Wife Is a Man, Arizona Daily Star (July 14 1995). 56 325 N.Y.S. 2d at 501. 57 355 N.Y.S. 2d 712 (1974).
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58 Although transgender activists claim that the situation occurs as often among anatomical females as anatomical males, every other litigated transsexual case that appeared in research for this essay involved a male-to-female transsexual. 59 355 N.Y.S. 2d at 715. 60 Id. at 717. See also Adams v Howerton, 673 F. 2d 1036. 1042-43 (9th Cir.), cert. denied, 458 U.S. 1111 (1982) (indicating that refusal to grant preferential immigration status to same-sex spouses might be justified by fact that "homosexual marriages never produce offspring"). 61 355 N.Y.S. 2d at 718. 62 513 N.E. 828 (1987). 63 Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975), remanded the issue of whether a post-operative transsexual could obtain a change of birth certificate The court noted that a failure to do so might be impermissible, in part, because it could infringe on the petitioner's fundamental right to marry. As one commentator noted, to prohibit the transsexual from marrying in his or her new sex "might deprive the sexually reassigned individual of the ability to maintain a legal heterosexual relationship, forcing the transsexual to choose between celibacy and illegality." Note, Transsexuals in Limbo: The Search for a Legal Definition of Sex, 31 MD. L. REV. 236, 247 (1971). Baehr, of course, provides another way to resolve the celibacy/illegitimacy dilemma. The ultimate goal of such reform, however, is to permit everyone, including the transsexual in his/her new sex, to marry a person of whatever sex he/she chooses. 64 See, e.g., In re Alison D. v Virginia M., 572 N.E. 2d 27 (N.Y. Ct. App. 1991). 65 See text at nn. 36-41 supra; Franke, supra n. 13, at 42 n.165 (collecting cases); see generally Eskridge, supra n. 50, at 87-122 (setting out judicial and other arguments against same-sex marriage). 66 355 A. 2d 204 (1976). 67 "[A] lawful marriage requires . . . two persons of the opposite sex . . . In the matrimonial field the heterosexual union is usually regarded as the only one entitled to legal recognition and public sanction" 355 A. 2d 207. 68 Id. at 209. 69 Cf. Comment, supra n. 43, at 1008 (describing the essential role of spouses as including the ability to engage in intercourse and "the ability to love and understand each other" and concluding that a "marriage, transsexual or otherwise, should not be declared [void] unless it is apparent that the marriage never existed in the minds of the parties themselves"). This unassailable sentiment makes sexual orientation as irrelevant to the legitimacy of marriage as sex at birth. 70 For a description of the ways in which law disadvantages effeminate men in particular, see Case, supra n. 33. 71 See, e.g. Smith v. Liberty Mutual Insurance Co., 395 F. Supp. 1098 (N.D. Ga. 1975), aff'd., 569 F.2d 325 (5 Cir. 1978) (presuming effeminate man is gay, despite evidence to contrary and then permitting employment discrimination on grounds that sexual orientation is not a grounds for legal protection against discrimination). See generally Franke, supra n. 13, at 63; Valdes, supra n. 33, at 91 ("popular opinion agrees with medical science: a `sissy' should, must, and does inhabit every `queer,' and a `tomboy' every `dyke,' and vice versa").
72 See generally Pearlman, supra n. 19; Case, supra n. 33, at 15-16 ("[w]e have come to realize that the categories of sex, gender, and orientation do not always come together in neat packages. Not only are they not as binary as we might once have though, they can in fact be disaggregated" (footnotes omitted)).
73 See generally Franke, supra n. 13 (demonstrating that, contrary to the relationship assumed by dominant law and culture, sex is as variable in its meanings as gender).
Cf. David Berreby, Quelle Difference? Biology Will Defeat the Defense of Marriage Act, Slate (http://www.slate.com/Concept/96-09-10) (suggesting that DOMA rests on a biologically dubious assumption that everyone can be clearly and unambiguously assigned to one of two sexes for purposes of deciding whether a marriage is between a man and a woman). See generally Phyllis Burke, GENDER SHOCK (1996); Judith Lorber, PARADOXES OF GENDER (1994)(both analyzing the cultural construction of gender and its coercive effects). 74 Comment, supra n. 43, at 965. 75 See Pearlman, supra n. 19, at 843-44. 76 See generally Rothblatt, supra n. 26 (arguing against gender/sex classification in the public realm).One example of the unnecessary difficulties created when the law makes sex classification relevant is R. v Tan and Others,  Q.B. 1053 The statu te made it illegal for a man knowingly to live on the earnings of prostitution. Because of that sex-linked aspect of the law, the court had to decide how to classify a male-to-female transsexual who had undergone surgery long before the activities in ques tion. See Note (Jerold Taitz), Transsexuals and Sexual Identity, 51 MOD. L. REV. 502 (1988); Franke, supra n. 13 at 3, makes the different b ------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1 ------------ ---------------------------------END PAGE 22---------------------------------------
ut related argument that antidiscrimination law should be used to attack "the social processes that construct and make coherent the categories male and female." 77 Cf. Franke, supra n. 13 at 41 ("it is only by virtue of having limited the marital partnership to two persons of opposite sexes that courts find themselves in the uncomfortable position of having to define explicitly what those opposite sexes are" (footnotes omitted)).
As my colleague Sharon Keller points out, one might retain sex classification for purposes of affirmative action and measurement of non-discrimination, because persons raised as female, as a group, have suffered social disadvantage under patriarchy that men as a class have not. Classification for this purpose, however, does not require classification for other purposes, such as marriage. (personal communication , March 15, 1997). 78 To include transgendered people in the community "would require" that gays and lesbians "question their definition of their sexual identity, which is currently based solely on the gender of their desired partners." Signorile, supra n. 16, at 164 (quoting Kate Bornstein). 79 But see Cheshire Calhoun, Denaturalizing and Desexualizing Lesbian and Gay Identity, 79 VA. L. REV. 1859 (1993) (suggesting a more contingent and historical understanding of the relationship between sexual intercourse with persons of a particular anatomy and having the social identity of a "person with same sex desires" and proposing as an alternative central fact, "an outlawed relation to a gender identity." Id. at 1869); Stephen Whittle, Gender Fucking or Fucking Gender? in BLENDING GENDERS: SOCIAL ASPECTS OF CROSS-DRESSING AND SEX-CHANGING 196, 202 (Richard Ekins and Dave King eds. 1996). 80 Because gay/lesbian is a felt identity for many in a way that being heterosexual is not, gays and lesbians are perhaps particularly dependent on a belief that sex/gender is stable and unproblematic. Kate Bornstein likens the disorientation we experien ce in the presence of those who disrupt gender roles, and thus our felt capacity to classify the world and to manage our erotic desires by the use of the criteria of sexual orientation as a kind of seasickness. GENDER OUTLAW: ON MEN, WOMEN AND THE REST OF
US 72-73(1994). 81 Cf. Leslie Feinberg, STONE BUTCH BLUES 274 (1993), a quasi-autobiographical novel in which the protagonist, a butch lesbian who has had a mastectomy and taken male hormones, discusses her attraction to femme lesbians and later to a male-to-female transsexual: "It doesn't matter whether it's women or men -- it's always high femme that pulls me by the waist and makes me sweat." 82 Virtual reality may provide such a laboratory, as people take on gender identities distinct from their anatomy and engage in virtual sex with people whose "real world" sexuality and gender they cannot know. See, e.g. J.Z. Grover, MUDdy Waters XIII (8) Women's Review of Books 9 (May 1996) (book review of Sherry Turkle, LIFE ON THE SCREEN: IDENTITY IN THE AGE OF THE INTERNET (1995)). 83 See Bolin, supra n. 17, at 483-84 (describing situations of transgendered people and their lovers before and after transition); WHAT SEX AM I? (Joseph Feury Productions 1980)(documenting stories of transsexuals whose partners remained with them through the sex change). . Similarly, a transsexual who is sexually attracted to persons of the opposite gender both before and after surgery (thus changing the sex to which he/she is attracted but remaining, e.g., heterosexual) would demonstrate a gender orientation. See Stuart, supra n. 19, at 60. 84 Certainly the stereotype of macho masculinity would suggest that male desire is deeply bodied; yet, gay male personal ads seem as frequently to insist on "no femmes" as to describe the advertiser as "well- hung." The notion of lesbianism apparent in much of the political lesbian feminism literature, insofar as it recognizes erotic desire as the core of sexual orientation at all, seems to root it in women's character rather than a desire for breasts and clitorises. Cf. ADRIENNE RICH, Compulsory Heterosexuality and Lesbian Existence, in BLOOD, BREAD AND POETRY: SELECTED PROSE 1979-1985 23 (1986). 85 Cf. the long-running debate between Tom Stoddard and Paula Ettelbrick over whether gays and lesbians should be seeking the right to marry. See, e.g. , Paula L. Ettelbrick, Since When is Marriage a Path to Liberation? OUT/LOOK 8 (Autumn 1989); Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, OUT/LOOK 8 (Autumn 1989) (both excerpted in Nan D. Hunter & William Eskridge, Gender, Sexual Orientation and the Law (forthcoming)). See generally Barbara Cox, Same-Sex Marriage and Choice-of-Law : If We Marry in Hawaii, Are We Still Married When We Return Home?, 1994 WIS. L. REV. 1033, 1035-37 and sources cited therein. 86 As this is written, the trial judge has recently found that Hawaii did not provide any compelling state interest to justify the sex discrimination inherent in the ban on same-sex marriages. There is nothing to suggest that the Hawaii Supreme Court will not affirm that decision. The only cloud on the horizon is the apparent passage of a referendum in the November 1996 election calling for a constitutional convention in Hawaii. If such a convention were to be convened it could either remove the ban on sex discrimination that provides the underpinning for the Baehr analysis or specifically forbid same sex marriage, though the latter approach might be impermissible in light of. Romer v. Evans, - U.S.-, 116 S.Ct. 1620, 134 L. Ed. 855 (1996).
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When we imagine that "we," i.e. the organized gay community, can control the direction of the post-DOMA litigation, it is useful to remember that Baehr itself was the result of a challenge brought by a few individuals, not the outcome of careful strategy by some national gay/lesbian political or legal organization. John Gallagher, Love & War, The Advocate 22, 24 (July 23, 1996). 87 Homosexuality has already been a central fund-raising bogey man for religious right groups. Curiously, the shift from an attack on us as gender traitors and oversexed warriors who reject traditional, Christian values, embodied in the Gay Agenda video of, e.g., clips of Dykes on Bikes at the San Francisco Pride parades, has segued without embarrassment into an attack on gay marriage, in which gays and lesbians somehow threaten the traditional values of love and commitment by seeking to share their rituals and symbols. 88 Same-sex couples have also sought access to the religious ceremonies that help comprise the meaning of marriage in our society, with varying degrees of success. See, e.g., N.Y. Times, March 29, 1996 reporting both that Reconstructionist and some Refo rm rabbis perform marriage ceremonies for gays and lesbians (at B2) and the statement from the Vatican that homosexual marriage would "undermine the foundations of the family model upon which human civilization was built" (at B1). 89 Such companionate "opposite sex" marriages in which at least one partner is gay or lesbian are not unknown. Some are a deliberate choice, others may involve a decision to remain in a marriage for any of a variety of reasons, despite the decision of one of the spouses to come out as gay or lesbian. Marc Fajer suggests that marriage can be used strategically to provide employment-linked spousal benefits to a friend, regardless of the sexual orientation (or sex) of the parties. Marc A. Fajer, Towards Respectful Representation: Some Thoughts on Selling Same-Sex Marriage, ms. at 22 n.103 (forthcoming YALE L. & POLICY REV.). 90 Fl. Stat. 741. In addition to DOMA, at least 16 states have recently passed bills specifically outlawing same-sex marriage. Similar bills were introduced in 20 states, but defeated. See Ellen Goodman, Gay Marriage to be Long Haul, Honolulu Advertiser, Dec. 10, 1996, at 12. As this goes to press, Maine has joined the group of states passing such a ban. See Maine bans Same-Sex Marriage (posting to queerlaw list Mar. 30, 1997)(citing to Hartford Courant of Mar. 27, 1997).
Many states have also passed new statutes specifically responding to the concern that same-sex couples will marry in Hawaii and then expect recognition of those marriages in other states. See, e.g., AS. Stat. 25.05.013; Conn. G.S.A. 46a-81r; 23 Pa. C.S.A. 1704. Perhaps the most thorough attempt to eradicate any consequence of such a marriage is found in Ga. St. 19-3-3.1(b): No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this state and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such marriage.
Much of the current efforts, indeed, involve the struggle to derail as many as possible of these state level anti-gay marriage bills. 91 Clinton signed the bill in the dark of night on September 21, 1996-- a far more disgusting act than any other he has been accused of spending his nights engaged in. See Clinton to Sign Bill on Same-Sex Unions, Washington Times, September 21, 1996 at A2; The Midnight President, The Detroit News, Sept. 24, 1996, at A6; Clinton Signs Marriage Act, L.A. Times, Sept. 22, 1996, at A22. 92 "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof," U.S. Const. Art IV 1. The basic implementing statute, passed in 1790 and amended in 1804, is codified as 28 U.S.C. 1738. 93 To be codified at 28 U.S.C. 1738C. 94 To be codified at 1 U.S.C. 7. 95 One takes a certain perverse pleasure imagining the knots into which the drafters tied themselves in their ultimately futile attempt to put their homophobic intentions into clear, simple yet constitutionally permissible English. 96 Judge Chang issued a stay of his decision in Baehr v. Miike before anyone could obtain a Hawaii marriage license. See Orange County Register A30 (Dec. 5, 1996). 97 Anne Fausto-Sterling, MYTHS OF GENDER: BIOLOGICAL THEORIES ABOUT MEN AND WOMEN (1985). 98 Cf., e.g., In re Karin T. v Michael T., 127 Misc.2d 14, 484 N.Y.S. 2d 780 (Family Ct. 1985)(Michael,
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who dressed as a man, though born as a woman, married Karin. When they applied for the license "no birth certificate was requested of either party," id. at 781). 99 Because heterosexual couples in which one of the partners is a post-operative transsexual or even a non- operative transgendered person will appear to be an ordinary heterosexual couple, and they may frequently have sufficient documentation to satisfy a clerk with no reason to suspect something our of the ordinary, such marriages and litigation may also take place entirely within states that forbid same-sex marriages. Since DOMA is irrelevant to the situation of a state applying its own law to determine the validity of a marriage celebrated in the forum state, such cases are outside the scope of this portion of the paper. Cf. Note, supra n. 16, at 324 ("Transsexuals are in fact getting married and doing so with ease. . . . Since the law is so easily sidestepped, it is unlikely to be tested because most transsexuals are intent on leading lives of obscurity.").
Since transgender marriages of this sort have already occurred, and because they frequently raised no red flags when the license application was made, the context of a transgender DOMA challenge will probably involve a couple resident in and married in State A who later move to State B or engage in some conduct that requires a decision from a court in State B. They will therefore not raise the special impediment to interstate recognition that may occur in the first gay or lesbian marriage cases, in which a couple from State A fly to Hawaii, marry, and return home. See n. 103 infra (discussing "evasionary" marriages) . 100 See Uniform Marriage and Divorce Act 210 (marriage valid where celebrated ordinarily valid in forum as well even if the parties would not there have been permitted to marry). Since the validity is not ordinarily subjected to challenge, the issue of the extent of full faith and credit does not arise. 101 Cf. In re May's Estate, 114 N.E.2d 4 (1953) (children bring challenge claiming that their parents' marriage is incestuous in New York (though valid in Rhode Island where performed) and therefore invalid. If they succeed in proving that they are bastards, they, but not their father, will be entitled to inherit via intestacy from their deceased mother's estate). 102 "The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage." RESTATEMENT (SECOND) OF CONFLICTS 283(1)(1988). That state would certainly be New Jersey under such a hypothetical. The argument for application of Florida law would be stronger if the couple had moved to Florida prior to the accident. In choosing the state whose law would apply, the Restatement includes as highly important making a choice that will protect the justified expectations of the parties. Id. at comment b. 103 That is, situations in which domiciliaries of State A, which would not permit them to marry, travel to State B, marry and then return. Courts of State A are most likely to deny recognition to such a marriage when a statute specifically directs them to do so. See UNIF. MARRIAGE EVASION ACT section 1, 9 U.L.A. 480 (1942)(withdrawn in 1943), discussed in Russell J. Weintraub, COMMENTARY ON THE CONFLICTS OF LAWS 223, n.6 (2d ed. 1980); See generally Cox, supra n.85 at 1074-82; Note, In Sickness and In Health, In Hawaii and Where Else?: Conflict of Laws and Recognition of Same-Sex Marriages, 109 HARV. L. REV. 2038 (1996). 104 A court would be most likely to find such a strong public policy where a statute, such as those recently passed in several states, specifically forbade same-sex marriage, sometimes explicitly providing that its ban should apply to marriages celebrated elsewhere. See statutes cited in n. 90, supra. These two concerns interact. Thus, invalidation is most likely when both are present; the law is much less clear where a state must determine the validity of a marriage which would be contrary to its strong public policy if entered into therein, but where there was no evasionary purpose or, especially, when the forum itself has no substantial interest in the marriage itself. See Candace L. Sage, Sister-State Recognition of Valid Same- Sex Marriages: Baehr v. Lewin -- How Will it Play in Peoria, 28 IND. L. J. 115, 118-20 (1994). Cf. Id. St. 32-209 ("[m]arriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the law of another state or country with the intent to evade the prohibitions of the marriage laws of this state"), which would apparently ban in two ways a marriage between two same-sex Idaho residents who had gone to Hawaii to be married and then returned home. 105 See generally Cox, supra n. 85. 106 The Supreme Court has never ruled on the status of marriages under the full faith and credit clause. The issue was arguably raised in Loving v. Virginia, 389 U.S. 1 (1967), but was avoided by holding that the equal protection clause substantively forbade Virginia from denying recognition to the Lovings' marriage based on the race of the spouses. Similarly, in Loughran v. Loughran, 292 U.S. 216 (1934), the Court ruled that D.C. law, properly interpreted, did not void Mrs. Loughran's marriage in Florida (a
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marriage she could not have entered into in the District of Columbia) and thus had no need to reach the question whether the Constitution would require the District to recognize it. The phrase "if the marriage was valid under the laws of Florida, the plaintiff was, under established doctrines of the conflict of laws, Daniel's widow," 292 U.S. at 225 is, unfortunately, dicta.
Other family law / full faith and credit cases in the Supreme Court have involved the interstate effect of judgments, involving questions of divorce or alimony. See, e.g., Williams v North Carolina, 317 U.S. 287 (1942) (validity of out-of-state divorce); Yarborough v. Yarborough, 290 U.S. 202 (1933)(validity of out-of-state child support decree). 107 No court appears to have answered this question. "Record" seems the most likely, since "act" has traditionally been assumed to refer to statutes. The characterization of a marriage as a "judicial proceeding," though the most helpful for the argument for full faith and credit, seems the least plausible, even where the ceremony is officiated by a judicial officer. It is also possible that a court may decide that marriages are simply contracts. If so, recognition or not in other states implicates only principles of comity and the full faith and credit clause is irrelevant. See Joel R. Brandes & Carole L Weidman, Same- Sex Marriage, New York L J. (Jan. 28, 1997). I would suggest that the rules in every state regarding who can perform marriages, and the requirement of a license issued by the state, make marriages distinct from private contract and subject, in some fashion, to full faith and credit rules. 108 See infra notes 114-115 and accompanying text. 109 See, e.g., Hughes v Fetter, 341 U.S. 609, 611 (1951) ("[w]e have recognized. . . that full faith and credit does not automatically compel a forum state to subordinate its own statutory policy to a conflicting public act of another state"). Surely the most infamous application of this doctrine that statutes have only limited extraterritorial effect is Scott v. Sandford, 19 How. 303 (U.S. 1836)(refusing to require Missouri to recognize that Dred Scott had been freed under the law of Illinois). 110 As noted above, prior cases have generally accepted the notions of such limits on the obligation of one state to recognize the marriages validly entered into in another state. Because the Supreme Court has never ruled on the permissibility of such an approach, it remains unsettled whether, apart from DOMA, states are constitutionally obligated to give full faith and credit to marriages which fall within the "evasionary" and/or "strong public policy" categories.
111 See RESTATEMENT (SECOND) OF CONFLICTS 283(2) (1988) (a marriage valid where contracted will be everywhere recognized as valid "unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage"). This rule is most likely to be applied so as to invalidate marriages where a) the parties resided in the forum before and after the marriage; b) the case arises relatively soon after the marriage, when little more has been done in reliance on the expectation that a marriage exists; and 3) where the forum's policy against such marriage is both clearly stated and "strong." The Restatement indicates that, absent specific statutory language barring such a marriage the only policies that have been deemed sufficiently strong "are rules which prohibit polygamous marriages, certain incestuous marriages, or the marriage of minors blow a certain age." Id. at comment K. It is safe to say that the drafters of the Restatement had not considered the question of interstate recognition of same-sex marriages. 112 For example, the Nebraska Attorney General opined that Nebraska would have to recognize a same-sex Hawaii marriage under its law holding that "all marriages conducted without this state, which would be valid by the laws of the country in which the sa me were contracted shall be valid in all courts and places in this state," and that, if Nebraska wished not to recognize such marriages it should pass a statute embodying that judgment. Neb. Op. Atty. Gen.No. 96090, 1996 WL 739040 (Neb. A.G.) 113 Indeed, using such litigation to challenge DOMA runs the risk that a court, choosing (or affirming a lower court's choice of) the first or second option might go on to indicate that DOMA would permit it to invalidate the marriage. Because the DOMA analysis is not necessary to the holding, it may not receive the care it requires, yet the language, even if dicta, may influence later decisions in which DOMA is determinative. 114 See, e.g., Fauntleroy v. Lum, 210 U.S. 230 (1908) (requiring Mississippi to give effect to a Missouri judgment, despite the facts that the cause of action arose in Mississippi, the debt sued on was illegal under Mississippi law, and the Missouri judgment likely rested on a mistaken interpretation of Mississippi law). Justice Holmes there quoted Chief Justice Marshall that "the judgment of a state court should have the same credit, validity, and effect in every other court in the United States, which it had in the State where it was pronounced," 210 U.S. at 236 (quoting Hampton v. McConnel, 3 Wheat. 234). See also Williams v North Carolina, 317 U.S. 287 (1942) ("even though the cause of action could not have been entertained in the state of the forum, a judgment obtained thereon in a sister state is entitled to full faith and credit").
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The Supreme Court has not been entirely consistent on whether and when a court of one state can ignore the judgment of a sister state. See, e.g., Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 502 (1939) ("It has often been recognized by this Court that there are some limits upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy"). It is clear, however, that whatever those limits, they are far narrower than when a state seeks to avoid enforcing a sister state's acts or, one may presume, records.
115 As the Supreme Court has said, the purpose of the full faith and credit clause was "to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings or the others, and to make them integral parts of a single nation." Milwaukee County v White Co., 296 U.S. 268, 276-77 (1935). 116 Although it might lead to a judgment of only limited significance for same-sex marriage generally. See infra note 134 and accompanying text. 117 At least some members of the Court have recognized the unsettled nature of this issue. Cf. Yarborough v Yarborough, 290 U.S. 202, 215 n.2 (1933) (Stone, J. dissenting) ("[t]he mandatory force of the full faith and credit clause as defined by this Court may be, in some degree not yet fully defined, expanded or contracted by Congress").
Note that the only other times since 1804 when Congress has legislated regarding full faith and credit, it has done so to expand the effective interstate recognition of judgments in the context of modifiable family law judgments. See 28 U.S.C. S 1738A (the Parental Kidnapping Prevention Act of 1980)(providing more effective enforcement of child custody orders); 28 U.S.C. 1738B (the Full Faith and Credit for Child Support Orders Act of 1994)(doing the same for child support orders). 118 See, e.g. Edwards v California, 314 U.S. 160 (1941); Sosna v Iowa, 410 U.S. 393 (1975). 119 Any equal protection or due process challenge would begin with the established constitutional principle that the right to marry is a fundamental liberty interest protected by the Due Process Clause. See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987). Though a same-sex couple might not be able to use Zablocki directly to claim a right to marry, a married same-sex couple would have a strong claim under those cases for government recognition of that marriage.
Finally, there may be a Tenth Amendment argument that the statute entrenches upon areas of domestic relations law traditionally and appropriately relegated to the states. See, e.g., In re Burrus, 136 U.S. 586, 593-94 (1890)("[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States"). This argument is weak, however, given the links of each part of DOMA to traditional federal issues -- of full faith and credit in the first part and to existing federal authority in the second, as well as the increasing federal involvement in family issues. See, e.g., Child Support Recovery Act , 18 U.S.C. 228. See also United States v. Parker, p 911 F. Supp. 830 (E.D. Pa. 1995) and United States v. Lewis, 936 F. Supp. 1093 (D.R.I. 1996) (analyzing whether the statute, in criminalizing refusal to pay child support for a child in a different state is constitutional under United States v. Lopez, 514 U.S. 549 (1995), which limited the reach of Congress' power to regulate under the Commerce Clause). 120 Note that these same constitutional arguments could also be deployed to challenge a state statute that forbade state courts to give effect to same sex marriages and their consequences. See, e.g., statutes cited in n. 90, supra. 121 The recognition need not come later so long as the partners are genitally different at the time of the marriage. For example, an Ohio judge held he was legally required to issue a marriage license to Debi Easterly and Paul Smith, since Paul still had male sex organs, although Paul was in transition to becoming a woman and described himself as a lesbian. News of the Weird, New Times, Jan. 8-15, 1997, at 11. The same situation occurred in Oregon where Lori Buckwalter had been taking hormones and planned surgery to complete her male-to-female transformation, but "since he legally remains a man until then, Buckwalter is free to marry Sharon Contreras today." Associated Press (Dec. 14, 1996) (quoted in posting to Queerlaw listserv (Dec. 16 1996)). 122 Although transsexuals generally construct a life history in which they have understood themselves to be a "man in a woman's body" (or vice-versa) from an early age, some suppress that understanding until much later in life, just as many lesbians internalize compulsory heterosexuality and act as if they were heterosexual until some time well into adulthood. 123 To keep matters somewhat simple, I assume here that the transgendered spouse undergoes sexual reassignment surgery. If he/she does not, the claim that the marriage has become one between same- sexed people is more problematic.
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124 In at least one case, the spouse went further and brought a tort suit against her spouse and the doctors who had done the surgery. She alleged, inter alia, that as a result of "the deliberate, willful, wanton, reckless, and negligent acts of the defendants. . . [her husband] ceased to exist as a male human being, and as a result the plaintiff was deprived of his care, comfort, protection and society." quoted in Note, supra n 20, at 315. Perhaps out of fear of such litigation, or because of a concern for the effect on such spouses, many gender identity clinics apparently refuse to provide sexual reassignment surgery so long as the patient is married. See Donald W. Hastings, Inauguration of a Research Project on Transsexualism in a University Medical Center, in TRANSSEXUALISM AND SEX REASSIGNMENT 243, 249 (R. Green & J. Money eds. 1969). Others require consent from the next of kin as well as the patient prior to surgery. Comment, supra n. 43, at 974.
Arguably at least one state has recognized the effect of sexual reassignment surgery on the legitimacy of marriage by making the other spouse a necessary party to a petition to amend a birth certificate to reflect the changed sex of a transsexual. La. Rev. Stat. Ann 40:62. 125 Note, supra n. 16, at 322, notes this fact and suggests that continued recognition of such marriages, when other homosexual marriages are not permitted "could lead to equal protection challenges." As with all equal protection issues, courts could resolve the inequality by denying protection equally as well as by extending it to all 126 It would seem unlikely that the non-transsexual spouse, having chosen not to divorce when the sex change occurred, would later try to use that change to avoid his marital obligations. The ability of people to behave badly in the context of divorce is almost limitless, however. More plausible is a challenge by a third party. Imagine, for example that the husband died without a will. His parents, not reconciled to their daughter-in-law's sex change, might argue that he was no longer a woman, and therefore that a court need not recognize him as the deceased's widow. Thus, the argument would conclude, the parents would be entitled to inherit under the laws of intestacy. 127 Under the dominant case law, the first couple -- a genetic male married to a woman who is a post- operative male to female, is more likely legally "same sex," but their different gender presentations means that no one except the couple or those very close to them will know this. They will not create the public image of a same sex couple that is most likely to lead to governmental application of DOMA-based discrimination. Cf. Note, supra n. 63, at 247 n.77 (suggesting that such transsexual marriages, unlike gay marriages, do not evoke the public sense of offense that arguably justifies restriction on marriage rights under Reynolds v United States, 98 U.S. 145 (1878)). 128 As with challenges to the full faith and credit aspect of DOMA, litigants could raise equal protection arguments and due process arguments rooted in the fundamental right to marry. They might also argue that such a law, enacted by the federal government, unconstitutionally intrudes into state authority over domestic relations law. The broad brush denial of all recognition for federal purposes of a class of marriages concededly valid under state law is unprecedented. In prior cases, the courts have frequently looked to state law for the meaning of such terms as "spouse" or "marriage" in federal statutes and regulations. See, e.g., Lembecke v. United States, 181 F.2d 703, 706 (2d Cir. 1950)(definition of "widow" for federal employee life insurance statute determined under state law); Albina Engine & Machine Works v. O'Leary, 328 F.2d 877, 878 (9th Cir. 1964) (definition of "surviving wife" under Longshoremen's and Harbor Worker's Act determined by reference to state law); Yarbrough v. United States, 341 F.2d 621, 623 (Ct. Cl. 1965) (Congress left the determination of whether an employee was married up to state law); Davis v. College Suppliers Co., 813 F. Supp. 1234, 1237 (S.D. Miss. 1993) ("For purposes of ERISA, `spouse' means to person to whom one is lawfully married"). As the last context, ERISA, makes clear, the pervasiveness of federal regulation means that much of the practical significance of a state's recognition of same-sex marriage may be eviscerated if that recognition stops where federal programs and regulations begin. Consider, for example, how a same-sex couple is to fill out a state income tax form which piggy-backs on the federal income tax form, where they are entitled to file jointly under state law, but not under federal law. 129 One difference is that, unlike the post-Hawaii gay marriage case, they may also raise the threshold issue of categorizing the sex of the transgender spouse to determine if this is a marriage between people of different sexes. If courts took a consistent view of what defines a person's sex, only one of the two kinds of transsexual marriage would be deemed same-sex. Doctrinal and logical consistency, however, have not been the hallmarks of case law involving transgendered people or gays and lesbians. 130 For example, federal authorities charged with implementing laws that provide benefits to spouses may continue benefits to married couples who have received them in the past or may proactively seek out marital units that are apparently no longer eligible. Which path is taken cannot be determined by the law
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on the books, but may reflect assessments of the political costs and benefits of DOMA-related activism. 131 Marriage-skeptics within the gay and lesbian community have noted the relative traditionalism of gay marriage and the risk that a focus on gay marriage rights will further marginalize those members of the community who reject marriage. See, e.g., Fajer, n. 80 supra at 19-21; Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not `Dismantle the Legal Structure of Gender in Every Marriage,'" 79 VIR. L. REV. 1535 (1993). Others have noted that absent the formal rights provided by marriage, legal claims on behalf of gays and lesbians have required presenting their relationships as particularly traditional. See, Darren Rosenblum, Queer Intersectionality and the Failure of Recent Lesbian and Gay "Victories," 4 L. & SEXUALITY 83, 109-11 (1994) (discussing the court's criteria for "family" in, e.g., Braschi v Stahl, 543 N.E.2d 49 (NY 1989) and M.A.B. v R.B., 510 N.Y.S. 2d 960 (1986). 132 Talk at Panel on DOMA at Lavender Law, National Lesbian & Gay Lawyers Assn. Conference (Oct. 25, 1996, New Orleans). 133 28 U.S.C. 1738C. 134 Welcome to the Hotel Honolulu?? 135 For example, she argues that it is the nontransgendered spouse who should "file the lawsuit . . . to declare the application of DOMA" as void and unconstitutional." ICTLEP Considers DOMA Impact on Same-Sex Marriages (press release of Sept 11, 1997) (on file with author). Understandably, some transgender activists, seeing their marriages under threat, may reach out to raise the issue, even where the state has not moved to deny benefits. "Each of the [150-200 transgender marriage] couples . . . will take whatever measures they can to stop this loss of rights." Posting of Janet Elisabeth Flecher to Queerlaw listserve, Sept. 22 1996. Such "pro-active" litigation seems to me a mistake in this context. While threatened loss of benefits cannot be ignored, regardless of how perfect or imperfect the facts may be for litigation, there are good reasons not to reach out to the courts if the issue of the validity of a marriage can be avoided or finessed. 136 See Fajer, n. 89 supra, at 3 n.15. 137 See Richard Kluger, SIMPLE JUSTICE (1975). Indeed, it appears that even cases that appeared to bubble up from the oppressed population, such as Rosa Parks' refusal to move to the back of the bus, were in fact carefully chosen test cases. Micheal T. McLoughlin states that Parks was selected as the test case for the bus boycott "because she was considered the best candidate to draw a sympathetic response." Posting to Queerlaw listserv, Oct. 9, 1996. 138 Cf. the comments of Evan Wolfson of the Marriage Project of Lambda Legal Defense & Education Fund in response to a comment by a transgender activist that "what is needed is our continued work together, and . . . not precipitating premature litigation." Posting to Queerlaw listserve, Sept. 22, 1996.
I am not asserting here that lawyer-dominated organizations, such as Lambda, should take the lead role in opposing DOMA or establishing gay marriage rights. What I do assert is, first, that those organizations have played a significant role and are likely to continue to do so, and, second, that they will play whatever role they take on more effectively insofar as they recognize the need to work with transgender couples and the organizations, such as ICTLEP, which have transgender issues at the center of their agenda.
Cf. Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-Community Critique, 21 N.Y.U. REV. OF L. & SOCIAL CHANGE 567, 612 (1994) (warning of dangers of precipitate litigation on marriage question and noting that "we ignore at our peril. . . . [o]ther critical methodologies of social change . . .includ[ing] political organizing, public education, institution building, and asking for (not just demanding) support from local religious, political, and community leaders and groups" (footnote omitted)). 139 The gay and lesbian community must take the initiative in seeking such alliances. The organized transgender community is rightly skeptical of alliance, given the mixed reception they have been given in the past to attempts to include their issues in the agendas of our organizations and their characteristics in our organizational titles. Furthermore, many transgender couples, who may be the objects of the first concrete discrimination under DOMA and therefore the subjects of the first litigation, are unconnected to any organized movement, since many transsexuals traditionally sought to disappear into the majority after their sexual reassignment surgery. 140 For example, the proposed Employment Non-Discrimination Act, as drafted, would protect against housing and employment discrimination based on "sexual orientation." Transgender activists have insisted that the bill should be expanded to also outlaw discrimination based on "gender expression." See Signorile, supra n. 16, at 40-41. Politically, I believe that such a change would make passage more difficult. Conceptually, however, it would also significantly enhance the protection available for gays and lesbians. Just as protection against discrimination on the basis of sex is incomplete insofar as employers can fire a woman because they perceive her to be a lesbian, protection on the basis of sexual orientation
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will be incomplete if they can still fire her because they think she is too butch (that is, because she fails to conform to the gender role the employer demands). Because the dominant majority tends to conflate sex, gender and sexual orientation, any unprotected aspect of that conflation provides an escape hatch for discrimination. "[D]iscrimination deemed based on sexual orientation also and necessarily is based on sex or on gender (or on both)." Valdes, supra n. 24, at 16 (footnote omitted). See generally Case, supra n. 33, at 54-56.
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