"Reprinted with Permission from ICTLEP, the International Conference on Transgender Law and Employment Policy, PO Drawer 1010, Cooperstown, NY 13326, 607-547-4118, e-mail at firstname.lastname@example.org, America On Line Keyword ICTLEP, web page www.abmall.com/ictlep". "Index" of transgender legal articles from five years of annual conferences available on AOL keyword and web page.
What does 'Transgendered' Mean?
A 'transgendered' person is someone whose gender identity or expression differs from conventional expectations of masculinity or femininity. For most people, there is no conflict or incongruity between their physical sex and their internal psychological identification as male or female. For transgendered people, however, their gender identity is in conflict with their physical sex, and thus their gender expression or physical characteristics may differ from their sex as assigned at birth. Although transgendered people have been part of every culture and society in recorded human history, they have only recently been the focus of medical science. There is a broad consensus among medical researchers that transgenderism is rooted in complex biological factors that are fixed at birth. This research confirms what transgendered people know and experience on a much more personal basis: being transgendered is not a choice nor a "lifestyle," but a difficult, uninvited challenge.
Who are Transgendered People?
Transgendered persons include pre-operative and post-operative transsexuals, transgenderists (persons living full-time in a gender other than their birth sex with no desire to pursue surgery); transvestites (preferred term: crossdressers, those whose gender expression occasionally differs from their birth sex); "mannish" or "passing" women, whose gender expression is masculine and who are often assumed to be lesbians, although this is not necessarily the case; "feminine" men who are often assumed to be homosexual, although they are just as often heterosexual; and intersexed persons, whose sex was arbitrarily assigned after birth and who often manifest physical characteristics, expression or identity that differs from the sex assigned without their consent.
Are Transgendered People Gay?
Most people do not understand that gender identity and sexual orientation are two different aspects of human sexuality. Gender identity involves a person's internal sense of being male or female, whereas sexual orientation involves those to whom one is attracted. Transgendered people have the same range of sexual orientations as non-transgendered people: most are heterosexual, and a smaller percentage are homosexual or bisexual. Despite this reality, transgendered people are almost universally perceived to be homosexual simply because of their appearance, which is often that of a masculine woman or a feminine man. Because this perception is so pervasive, transgendered persons are particularly subject to targeting by people who are obsessed with gay and lesbian stereotypes, and often cannot escape such targeting by adopting a "straight" appearance.
How are Transgendered People Discriminated Against?
Denial of an opportunity to make a living is the single most damaging and pervasive form of discrimination against transgendered people. Even more systematically than lesbians, gay men, and bisexual people, transgendered people are routinely targeted for work place discrimination and almost universally unprotected under existing laws. There are few transgendered people who not have experienced loss of employment, denial of employment, or underemployment solely because of their transgendered status. For transsexual people in particular, initiating the process of gender transition frequently means permanent loss of a profession or career. In addition to the impact on individual transgendered people and their families, this discrimination has a tremendous social and financial cost. Because so many transgendered people are excluded from employment, transgendered people are disproportionately driven into poverty and/or unwanted dependence on public assistance. Transgendered people also confront many related forms of
discrimination, including denial of basic civil rights and protections in housing, public accommodations, and health care. Transgendered people are also frequent targets of hate crimes: verbal threats, hate mail, harassing telephone calls, and acts of physical and sexual violence committed by the same persons who target lesbian, gay, and bisexual people.
If They Keep Their Difference Private, How Can They Be Victimized by Discrimination?
Like most gay men, lesbians and bisexual persons who keep their sexual orientations private, the vast majority of transgendered persons also strongly desire to keep their transgendered status private. Like gay men, lesbians and bisexuals, transgendered people are also vulnerable to their sexual minority status being revealed against their will, i.e., being "outed". But unlike many lesbian, gay, and bisexual people, most transgendered people, at least at some point in their lives, possess physical or behavioral characteristics that readily identify them as transgendered.
As a result, transgendered people are much more likely to be visible targets and to fall victim to discrimination.
What are the Different Types of Transgendered People?
The term 'transgendered" describes several distinct but related groups of people. Numerically, the largest subgroup of transgendered persons are thought to be crossdressers who are mostly heterosexual men, although there are also women who crossdress. Apart from their occasional crossdressing, they lead lives that are quite ordinary in all other respects. Most crossdressers are married and many have children, so they have much to lose if their transgendered status is revealed. They also wish to remain in the sex they were born, unlike transsexuals. Transsexual and transgenderist (non-operative transsexual) persons differ from crossdressers in that they come to feel they can no longer continue to live their lives in the gender associated with the physical sex they were assigned at birth.
Why do they feel that way?
The overall psychological term is called gender dysphoria, an intense feeling of pain, anguish, and anxiety from the mis-assignment of sex at birth. All transgendered people suffer from it, but the feeling is more acute for transsexuals and transgenderists. Some transsexual and transgendered people are unable to live in the gender of their assigned sex from a very early age.
The majority struggle to live in the gender of their assigned sex, albeit at
Why is that Necessary?
Since gender is a visible and ubiquitous aspect of anyone's life, gender transition is impossible to hide. For transsexual persons seeking sex-reassignment surgery, this transition also marks the beginning of a medically mandated "real life test." During this minimum one-year period, they must be able to demonstrate their ability to successfully live and work full-time in their congruent gender. This is an absolute prerequisite for sex reassignment surgery (SRS), the only known relief from the intense, physical gender dysphoria of transsexual people. The crucial importance of this period to a transsexual person is impossible to overstate: it is literally life or death. It is also when most transsexual persons are most vulnerable to discrimination, harassment and violence. But even after gender transition and living a gender-congruent life, a transsexual or transgenderist is still vulnerable to discrimination if their past sex status is revealed.
Aren't Transgendered People Already Covered Under Existing Laws?
Under existing case law, the courts have found that transgendered people are not covered under existing statutes protecting persons based on sexual orientation, personal appearance, or sex. Transgendered people were not included in the American's with Disabilities Act of 1991 and also are not covered under existing disability laws in most states. Both state and federal courts have uniformly held that transgendered people are outside the legal definitions and protections of existing anti-discrimination laws.
What does the The Gender Community Propose?
We are seeking an amendment which would add gender identity as a protected category to the Employment Non-Discrimination Act when it is reintroduced in the 105th Congress. Transgendered people are more vulnerable to discrimination and violence on the basis of perceived sexual orientation than any other group. The omission of transgendered people in ENDA will send the dangerous message that transgendered people do not need or deserve protection from this form of discrimination, as well as isolating transgendered people as the unprotected targets of continued discrimination for years to come. Including transgendered people is essential to ENDA's moral integrity.
What Other Jurisdictions Have Such Protection?
The State of Minnesota has a law which forbids discrimination based on sexual orientation, which is defined to include transgendered people. The cities of Santa Cruz, Berkeley and San Francisco, California; Seattle, Washington; Cedar Rapids and Iowa City, Iowa; and Minneapolis-St. Paul, Minnesota, all have municipal ordinances that specifically protect individuals from discrimination based on their gender identity or expression. The Australian province of New South Wales also prohibits discrimination against transgendered people, and the European Court of Justice has found such
Would This Legislation Force Employers to Pay for Sex Reassignment Surgery?
No, it would not. Most transgendered people do not want to change their anatomical sex, but for those that do, having a job that will enable them to save money for the procedure is absolutely essential. By including protection for transgendered people in ENDA, this amendment will legally afford them only their basic rights to fair employment. Securing and safeguarding the right to discrimination-free employment would greatly ameliorate the already difficult, complex lives of transgendered persons.
Like other ordinary citizens, transgendered people want to lead normal lives and to be employed. They do not want to live in poverty, on unemployment or general assistance, or to be forced into prostitution in an attempt to survive. They want to live their lives quietly, without fear of discrimination, harassment and violence, just like all other citizens of this country.
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
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
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
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,
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,
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.
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
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
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"
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
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
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
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
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).
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).
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.
The two communities also must confront their conflicted and tangled cultural roots. For example,
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).
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 statute 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 question. See Note (Jerold Taitz), Transsexuals and Sexual Identity, 51 MOD. L. REV. 502 (1988); Franke, supra n. 13 at 3, makes the different b
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 experience 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).
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 Reform 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,
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
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 same 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").
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.
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
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
Genital Surgery NOT Required for Legal Change of Sex: Freedom From The "Have-To" Of The Scalpel
by Phyllis Randolph Frye* , Attorney, Founder and Executive Director, ICTLEP
My talk is called, "Freedom From the "Have-to" of The Scalpel." It is about legal legitimacy without the pre-requirement of completing genital surgery. And I'm going to talk a little bit about freedom in general. I'm going to talk about another one of our freedoms, which is to keep our marriages. I'm going to talk about freedom from the "have-to" of the scalpel, and I'm going to talk about the price of freedom. There is a freedom that has allowed Phyllis Frye, who brought enough dresses to wear for this entire conference since she was going to be at the podium, to say "to heck with it, I can be a woman and wear blue jeans an T-shirt" and stand here at the podium.
There's another type of freedom. I don't know how many of y'all read the Esquire Magazine that appeared in April of 1995. But, they did an article on us and several people were interviewed. Martine was interviewed and other people were interviewed. They did a really nice interview on me. I was very pleased with it. And what I did was, instead of trying to tell the Esquire reporter about how good things were, while we were sitting in the privacy of my home or in my office, instead I showed him that I was out in the open by having him meet me downtown at the courthouse. And I had him follow me around the courthouse all morning while I visited about five different courts. After that, we went to lunch in an open restaurant at a table in the middle of the restaurant with other openly transgendered people. He went back to his hotel and that evening we picked him up an took him to four political fund raisers for elected officials, one Republican and three Democrats. He was flabbergasted by the freedom. He was flabbergasted to see that what I was describing to him was not just "the talk," but it was indeed "the walk."
Sharon Ann Stuart, as y'all know, or Tom Heitz, that we love dearly, presented her speech yesterday. She has known me for a long, long, long time. Even so, on Wednesday morning before I got to this hotel I had to go to court. I had things I had to do. I had six different courts I needed to visit. And Sharon went with me, as Sharon. I took her in to the back doors to visit with courtroom coordinators, and to visit with court reporters, and to visit with bailiffs, and to check out various details. It was actually one judge I had to talk with. The rest of it was D.A.'s, clerks, coordinators, stuff like this. I had to file papers. And all throughout I would go through the busy pedestrian tunnels between courthouse buildings. I would go here, I'd go there. "Hey, how are you?" People would holler to me from the side, "Hey Phyllis, how are you doing?" And even Sharon, knowing me as long as she had, was flabbergasted by the fact that outside of the office, Phyllis Randolph Frye, in her professional area was very much out, was well respected, was well known, and was even liked.
I even wear "Transgender MENACE" t-shirts in my neighborhood quite often. When I go to the bank, or I go to the grocery store, or I go to the pharmacy or anywhere else I need to go in my neighborhood, I'm wearing my "Transgender MENACE" t-shirt. And it's not necessarily just being in their faces because I can easily pass. I blend in very well. I don't wear a sign that says I'm transsexual, but sometimes I think it's important for people to be reminded. I discover otherwise that people forget about me, and then they think "well, I don't know any transgendered people. Who are they?" And all of the times that I've gone to my bank; and I've gone to my pharmacy; and I've gone to the grocery store; and all these places around the neighborhood, people see my MENACE t-shirts and most people don't even bat an eye. If you look at a MENACE t-shirt, it's pretty tame compared to some of the t-shirts that people wear nowadays.
Most don't even look at it, but every once in awhile somebody does. I had a clerk who said, "What does that mean?" And I said, "Well, it says transgendered menace. That means that I'm transgendered. But do I look like a menace?" And he looked at me, and he grinned and he said, "No, you don't look like menace!" I said that's the point. Click! He got it. The light went ON in his head. You can do an awful lot that way. I've never been chased. I've never been beat up. I've never been jeered. This is 1996. I'm not making any warranties or guarantees. That's the lawyer in me. But you might want to start stepping a little bit further out and see what happens.
With respect to the freedom from the "have-to" of the scapel, I want to preface discussion of this freedom by saying that Phyllis Frye is not, N-O-T, not against genital surgery. Now, I want to repeat this again. Phyllis Frye is not against genital surgery. ICTLEP is not against genital surgery. But what we of ICTLEP all stand for is that you should not "have-to-have" genital surgery just, merely, solely, to be allowed by society to get your legal stuff in order. Because then you really aren't faced with any real choice at all. A coerced choice or an intimidated choice or a peer pressure choice is no choice, is not a free and deliberate choice.
It is my contention and my experience that there is too much peer pressure. You all have -- all of you who are pre-op or non-op -- many of you who have friends who in the transgender community saying, "when are you going have your surgery? When are you going to have your surgery? It's been three years, when are you going have your surgery? I'm having my surgery." And everybody's rushing around to have surgery. It's a lot of peer pressure.
You look kind of like you're standing out in the wind if you're holding your ground waiting to see for yourself if it's the right thing for you to do. Your neighbor says, "Hey, I understand that you gotta be a woman" or "I understand that you gotta be a man, but I'd sure feel a whole lot comfortable when you have this surgery." Which, by the way, they'll never see. Church pressure, for those people who do have support of churches, they'll say, "yeah we'll accept you as a female" or "we'll accept you as a male once we know that you've had surgery. You're welcome into our congregation once you've had surgery. No, the Bible will not condemn you once you've had your surgery." Of course some people interpret the Bible to condemn us forever anyway. Some don't. People draw weird lines.
If you could get your legal identification and your legal passport and your legal birth certificate and other legal documents done without "having-to-have" genital reassignment surgery as a pre-condition, then my question for today is this, "Can't that person then, in their own private thoughts, decide whether or not they want to have genital surgery?" Quite frankly, I don't care whether you have it or not. Once all that legal work is done, if you still want to have genital surgery, then please do. If you run into any obstacles, let me know. I will try to smooth the way for you, point you in the direction where you can have what you desire. But what's going on in our society, in our medical community, and our legal community, our families, our churches and our peer groups? There's all this pressure to have genital surgery which they will, for the most part, never see the results of or even know for sure if you had it. Now I personally can't do anything about most of those pressures, but I can do and have personally done something about the legal aspect. When people can't get their legal paperwork done, they can't get their jobs, they can't get their insurance coverage, they can't get all this other stuff, until after, until after, until after they've had surgery. Yet, they make you run through a gauntlet to be "sure" that you "want" surgery. Well, what are you going to do if you're kind of not certain? Well, you're probably going to have surgery. And you may be happy with it. And if you are then that's great.
But what if you're not happy with it? Requiring genital surgery before allowing legal changes is the donkey before the cart.
Okay, so in August of 1993 in Proceedings II, yours truly made a speech. It's titled "The Non-Op Transsexual: Clitoral Hypertrophy". And clitoral hypertrophy is essentially when someone, who is a male-to-female/female-to-female transsexual who has had a bilateral orchiectomy; and has been on hormones for a long time; and has developed breasts and all the other secondary sexual characteristics, and has had electrolysis and all this other stuff. And due to the hormones, the long term irreversible hormone therapy, what some people used to call a penis has reduced radically in size. And so what we have is a person with the brain sex of a woman and the gender presentation of a woman and between her legs (where society spends so much time worrying about us) is a hyperextended clitoris or clitoral hypertrophy.
Now in the case of our brothers -- help me out with this Jamison if I screw it up. Although it's not the same -- it's not the same in its actual biological function -- in the outward appearance function, the metoidioplasty has this similar outward appearance. Through the hormone therapy, the beard comes, the muscles bulk out, vocal cords thicken, and all this other stuff. A hood over what others would call the clitoris has an incision. And what others would call a clitoris enlarges and is now an underdeveloped penis. Actually Jamison just corrected me to say it is not underdeveloped, it is simply a small penis. I apologize. You're correct. It isn't underdeveloped, it's just small. Just small.
Going again to the ICTLEP Health Law Standards which state in Standard No. 2, "physicians providing hormonal sex reassignment therapy." It talks about what they're supposed to do and what they're not. So, in Standard No. 2, there is a definite place for and an equal place for hormonal sex reassignment therapy, which is on par with genital sex reassignment therapy. In August of 1995 in Proceedings IV, there's also Standards of Care No. 2 again. And there's Documents Report on pages 150 to 153, wherein I said the following about how I learned about and came to terms as a legal practitioner with the
Continuing the quote, "The question is, from the point of evidence, what do they have between their legs? Well, they're men up here, up in their brains, because the brain is our biggest sex organ. So, what is it between their legs? If they believe that they have an enlarged clitoris due to hormone stimulation, then evidentially and through a deposition it could be argued very easily while opposing an insurance company; or opposing a spouse in a divorce; or the opposing who knows what, that they're still women. But, if their minds they believe that they have instead a small penis, and their doctor is willing to back up as a small penis, then evidentially and through a deposition it could be argued very easily while opposing an insurance company; or opposing a spouse in a divorce; or the opposing who knows what, that they're men. They have a small penis but they are men: it can and does work. It worked in the Baker vs Baker case that I mentioned earlier. There were depositions, legal depositions where our guys swore up and down, under intense cross examination, that no, they didn't have female sex organs; no, they didn't have a clitoris; they never had a clitoris; but that they've always had a small penis. They never budged on that in one case or another.
And as far as Phyllis Frye is concerned; if I were ever deposed, I would swear that I've always had a clitoris; it was merely hyperextended." There's a lot things you can do especially if you're creative and if your lawyer's creative. And if your lawyer is well trained. And that's the secret. If your lawyer is well trained. I don't care how good a lawyer is in their special area of law. If they can't conceive of clitoral hypertrophy; if their eyes wince every time they have to call you by the proper pronoun; if they're stumbling all over this in their minds, they're not the advocate for you. Body language really does communicate to a judge. It also communicates to opposing counsel.
Now consider your attorney's very, very first phone call from a opposing counsel. If your lawyer is stumbling all over pronouns, opposing counsel is in charge. Think of an example of some attorney who's representing our friend, Jamison Green out there in the audience, for the first crack out of the box. Attorney says "Mister" Green, HE" from the beginning with opposing counsel and doesn't budge one iota from that. This attorney is going to have a much easier time than some other attorney who from the very first phone call communicates to the opposing counsel that they're not comfortable by saying, "well, um, um, um, Mister, um, uh, Miss, uh, Mister, Green, uh she, I mean he . . ." and all this other stuff. The opposing counsel already knows that your attorney isn't comfortable with your being TG. And so you must get an attorney with good body language and good skills concerning you and you press it to the max. And the way you get that information is through Proceedings III, pages 102-106, the "Non-Lawyer Checklist for Transgenders Who Consume Legal Services."
There's another interesting thing. Lou Swartz, many of y'all met him at the last year's ICTLEP conference. He's a professor of law at New York State University in Buffalo, New York, and he presented a paper to the Harry Benjamin Symposium, September 7 through the 10th of 1995 in Bavaria, entitled, "The Legal Responses to Transsexualism: Scientific Logic Versus Compassionate Flexibility in the United States and the United Kingdom." He gave ICTLEP a limited copyright to present it in Appendix (A) of the 1995 Proceedings IV.
And when I read this I was flabbergasted, because he took what I said and he put it in language that meant something to him. Now it doesn't matter what I think I say. What matters is what people hear. And I was so flattered when I read what he had heard. And it is the basis for what I'm fixing to you show you in just a minute. On page A-12 of the Proceedings IV, it says in item "c. Sex at birth: fact or prediction? Phyllis Frye of the International Conference on Transgender Law and Employment Policy, ICTLEP, asserts the designation of sex on a birth certificate (usually done in the United States by the physician) does not involve merely a statement of observed medical fact, as is usually assumed. It is more accurately seen as involving an implicit prediction, usually correct, based upon observed medical fact. The observed medical fact concerns the structure of neonatal genitalia as falling within a range of typically male or typically female. The prediction -- so often true that its contingent and probabilistic aspect has in the past not usually been recognized -- is that as the infants grows further into childhood and then into adulthood, there will almost always be a congruence between the anatomical indicia of sex (male and female) already noted, and an emerging subjective gender identity, yet to develop. One might therefore say, in cases of transsexual gender" (here Swartz uses the word "dysphoria" -- which makes me puke) "dysphoria, that in filling out an infant's birth certificate the physician made a mistake, a mistake in predicting the emerging congruence of psyche and soma. From this point of view revision of legal documents of a transsexual, such as a birth certificate, involves not a sex change but a documentary correction of an error, an error in prediction.
Ordinarily such predictions are so trustworthy that for practical reasons they can be regarded as statements of fact. It is only unusual cases such predictions turn out to be wrong, and then -- it is argued -- they should be corrected without any special need for apology."
Continuing with the Swartz quote: "From this different angle of vision the original record contains what is now revealed to be non-negligent misstatement. Pragmatically interpreted, we are thus merely dealing with a correction of a relatively uncommon type of official documentary error. This would seem, then, no longer to present a direct conflict of a highly conservative position stated in the Corbett cases by others elsewhere. . . ."
In other words, according to Swartz, if you take this view, and if your doctor will adopt this view, and if your lawyer takes this view; and if she or he can convince the judge to take this view, then Corbett and all the other "B.S." cases that follow it, don't apply. You're not trying to change anything. You're trying to make a mere correction.
Earlier you were handed a photocopy of a court order, and I want you to look at that, and I want you to take it home. And I want you to do with it whatever you need to. But there's some very significant language in that order. I've been preaching this for a long time. I've decided I was going to see if we could do it. So, I met with my doctor, who does my annual
And so, I wrote a letter, and we talked about it on the phone. Then I made a few changes, and he signed it before a Notary. And with that sworn document and with a petition that followed a lot of the logic that I've already discussed, and that quoted a lot from the Swartz thing I just read, and that quoted a heck of a lot from the various Proceedings, we got this order that you hold. It says that the judge understands that Phyllis Frye has never had genital surgery. In the order the judge essentially says,"Yeah, I know you've never had genital surgery, I'm aware of that". But with that the judge signed the order that you hold. Obviously I wrote the order, but if he didn't like it, he would've changed it.
In the order is a recitation of court findings. The Court found that the petitioner has completed her long term irreversible hormonal alteration. Long term is important. What long term is, nobody knows. Irreversible is very important. Again, what it means, the doctor essentially said that she's been on hormones for so long that it's rendered her chemically sterile. And if she went off the hormones she would have to have surgical intervention to take her back the other way. Obviously I'd have to have a mastectomy and other things. So, that's hormonal alteration. The court found that I was a complete transsexual female. And then the court went on to find that the original birth certificate listing Ms. Frye as a male has been revealed to this court to now be a non-negligent misstatement. And that the birth certificate should be corrected to read female. And therefore, the court deemed my sex to be female all the while knowing that I was non-surgical.
It is not a big deal that Phyllis Frye is now legal. The big deal and the point of this is that now we are all legal and now we are all free from the "have-to" of the scalpel. We can, if we are clever and if we frame our arguments right and if we push our attorneys to do the right thing and if we push our attorneys to understand -- and if you can't get an attorney to do the right thing or to understand or to read or to study the indicia and the nuances of transgendered conversation, then get another attorney. We can, in all of our states, come up with these. From now on, before you've had your genital surgery, yes, before, it should be a matter of course to have your birth certificate amended. Before surgery, have your birth certificate amended. And then if you want to go on and have genital surgery, have it. It is then a real choice without legal coercion.
But, you don't "have-to-have" surgery to get your birth certificate amended. That is what I just demonstrated. I think that this is a very emancipating thing in our community. I think that this will be another water shed. This is why I'm so committed to what ICTLEP is doing. This is real freedom: to be able to make a real choice to be the full whoever you are inside and no more and no less.
The final freedom I want to talk about is the dollars and cents price of freedom. And this is a little squib that was published in Proceedings II, August of 1993 on page 172. I talked about the dollars and cents price of freedom. We all have choices. We can all make any choice we want. The question is, what is the price? And what is the risk? And what are we willing to take? The dollar and cents price to Trish and me was that with inflation and with routine but conservative advancements and promotions, in 1993 dollars, when I gave this speech, our accumulated wealth was somewhere between
So, I recommend these things to you. I offer these things to you. I invite you to go home knowing that your marriage is valid and that you are now free from the "have-to" of the scalpel and that you are now liberated, emancipated, in that area.
I love you all so very much.
* Ms. Frye is an Eagle Scout, a Texas A&M University graduate with additional degrees from the University of Houston, a veteran, a licensed engineer and a licensed attorney. She has been active and out-of-the-closet for over two decades. In 1980 she led the successful repeal of the Houston anti-crossdressing ordinance. Openly, she has held elected offices in social and professional organizations and has had articles published in professional journals. In 1991 she founded the International Conference on Transgender Law and Employment Policy. In 1993 she was the sole transgendered platform speaker for the "3rd March on Washington for Lesbian, Gay and Bisexual Rights." She and Karen Kerin of It's Time America initiated the first efforts to lobby Members of the US Congress in July 1994. Those two, and Riki Wilchins of Transexual Menace, organized the two-day event that put over 100 transgenders into 510 of the 535 Senate and Congressional Offices in October 1995.
BREAKING NEW GROUND IN
INTERNATIONAL LAW PROTECTING TRANSSEXUAL RIGHTS: RIGHTS INTERNATIONAL'S AMICUS CURIAE BRIEF
IN X., Y. and Z. v. United Kingdom
In the field of sexual orientation law, the European Convention on Human Rights1 has provided greater legal protection to individuals than most domestic legal traditions, including US law. For example, in the area of gay and lesbian rights, the right to privacy under Article 8 of the European Convention has been interpreted repeatedly by the European Court of Human Rights to extend to an adult's right to participate in private, consensual homosexual activity. See Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981) (protection extended to mutual masturbation, oral-genital contact, and anal intercourse between adult men); Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A) (1988) (protection extended to anal intercourse between adult men); Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993) (protection extended to carnal knowledge "against the order of nature").
In the area of transsexual rights, the European Court's record has been mixed but promising. The European Court has examined the merits of four cases addressing the rights of transsexuals: X., Y. and Z. v. United Kingdom, Application No. 21830/93 (pending); Rees v. United Kingdom, 106 Eur. Ct. H.R. (ser. A) (1986); Cossey v. United Kingdom, 184 Eur. Ct. H.R. (ser. A) (1990); and B. v. France, 232 Eur. Ct. H.R. (ser. A) (1992). In the first two cases, Rees and Cossey, the applicants were unsuccessful in challenging the UK government's refusal to change their birth certificates to reflect their new gender. However, in the third case, B. v. France, the applicant was successful. The European Court distinguished this case from the Rees and Cossey on the basis that there would be substantial administrative burdens imposed on the UK birth certificate system unlike the French system which had an integrated, updatable
Recently, the European Court has had another opportunity to address transsexual rights in another context: parenting. This case is very promising because the rights of two other non-transsexual applicants are implicated, one of whom is a child. In X., Y. and Z. v. United Kingdom, the applicants are a family. Applicant X. is a post-operative transsexual who is the functional but non-biological father of Applicant Z., a daughter. Applicant Y. is the biological mother of Applicant Z. Applicants X. and Y. have been in a stable and permanent union for over fifteen years.
When Applicant Z. was born by artificial insemination, Applicant X. was asked to be recognized as the functional and legal father. However, the UK Government refused to recognize Applicant X.'s de facto status as the father. After unsuccessful appeals in the UK courts, the applicants applied to the European Commission, which found a violation of their right to privacy and family. The parties were unable to reach a friendly settlement. Consequently, the Commission referred the case to the European Court. The case is now pending.
This case is particularly promising in effecting the greater recognition of transsexual rights because the UK Government's refusal to legally recognize a transsexual as a father impacts upon the rights of two other persons. The mother and daughter cannot lawfully rely upon the transsexual father to provide child support. A child living with a transsexual who is the de facto parent does not have inheritance rights if her father should die intestate. Also, the child cannot acquire certain benefits accruing from her parent's citizenship.
The following amicus curiae brief was submitted to the European Court in X., Y. and Z. v. United Kingdom by Rights International.2 The brief analyzes how different domestic legal traditions affect the rights of transsexuals.3 The importance of this case extends beyond transsexual rights. A decision favorable to the applicants in X., Y. and Z. v. United Kingdom also may impact favorably upon parental and marriage rights of gays and lesbians in the future. Furthermore, since transsexualism or gender dysphoria is recognized as a psychiatric disorder, the rights of disabled persons are also affected. Indeed, this is the first case addressing the rights of the disabled that has come before the Court.
We hope our readership will find the following helpful.
1 The European Convention on Human Rights ("ECHR") creates binding legal obligations on approximately thirty European nations. The European Commission and Court of Human Rights interpret the ECHR's guarantees. Individuals, known as "applicants," have legal standing before the European Commission of Human Rights to challenge human rights violations after they have exhausted domestic legal remedies. If a friendly settlement is not reached between the Contracting State and the applicant, the European Commission or Contracting State can refer the case to the European Court of Human Rights. Furthermore, about fifteen European nations have ratified Protocol No. 9 that allows applicants to refer their cases to the Court. And eventually, the European Commission will be dismantled under Protocol No. 11 allowing all applicants to take their cases directly to the European Court.
2 Rights International, The Center for International Human Rights Law, Inc. is an international human rights organization focussing on litigation before international courts. For further information, e-mail Rights International at email@example.com.
3 Per the Court's instructions, Rights International did not address the specific facts in the case.
EUROPEAN COURT OF HUMAN RIGHTS
NO. 75/1995/581/667 X., Y. AND Z.,
---v.--- THE UNITED KINGDOM,
The Center for International Human Rights Law, Inc.
Under Rule 37 § 2 of the Rules of Court A
Francisco Forrest Martin, President Rights International, The Center for International Human Rights Law, Inc.
600 Biltmore Way • #1117 • Coral Gables, FL 33134 • USA • Tel (305) 446-7334 P.O. Box 20337 • New York, NY 10011 • USA • Tel (212) 294-2510
With the assistance of:
Ms. Hope Weiner, law student intern (Cardozo School of Law) Ms. Marguerite Marty, law student intern (Columbia Law School)
Mr. Joel Diegleman, law student intern (Univ. of Wisconsin School of Law) Mr. Laurence R. Helfer (Rabinowitz, Boudin, et al.)
Prof. Stephen Schnably (Univ. of Miami School of Law) Prof. Francisco Valdes (Univ. of Miami School of Law)
TABLE OF CONTENTS
I. THE LAW RECOGNIZING TRANSSEXUAL RIGHTS IS CRYSTALLIZING AS COURTS AND LEGISLATURES ARE IDENTIFYING AND ABANDONING FALSEHOODS SURROUNDING PERSONS WITH GENDER DYSPHORIA.
A. Law from European and Other Democratic Countries
B. United States Law
1. Constitutional Guarantee of Equal Protection of the Law
2. Americans with Disabilities Act. 3. Title VII of the Civil Rights Act of 1964.
4. State Law II. BECAUSE DISCRIMINATORY TREATMENT AGAINST TRANSSEXUALS IS BASED ON SUSPECT DISABILITY AND GENDER CLASSIFICATIONS, STATE-PARTIES SHOULD ENJOY ONLY A NARROW MARGIN OF APPRECIATION IN LIMITING TRANSSEXUAL PARENTAL RIGHTS.
III. THE ISSUE OF PARENTAL RIGHTS OF TRANSSEXUALS SHOULD BE EXAMINED IN LIGHT OF WHETHER A STATE'S DOMESTIC LEGAL ORDER IS IN LINE WITH THE DOMESTIC LAW OF OTHER EUROPEAN STATES AND WHETHER IT IS DEVELOPING WITHIN THE DISCIPLINE OF EUROPEAN CONVENTION LAW.
A. It is Necessary to Consider Whether a State-Party's Internal Legal Order Incorporates Strasbourg Law to Ensure a Coherent European Consensus and Unity.
B. It is Necessary to Examine Whether a State-Party's Internal Legal Order Incorporates Strasbourg Law in Order to Avoid Additional Harms Accruing to Other Associated Rights.
C. Effective Operation of Margin of Appreciation Doctrine Requires Consideration of the United Kingdom's Non-Incorporation of Strasbourg Law.
Pursuant to Rule 37 § 2 of the Rules of Court A, Rights International, The Center for International Human Rights Law, Inc. ("RI"), submits these written comments having received permission from the President of the Chamber, Mr. R. Bernhardt, by letter dated 9 May 1996 from the Deputy Registrar of the Court, Mr. Paul Mahoney. In compliance with the European Court's directions, RI's comments will "be confined to the laws and jurisprudence of various European and other democracies on the extent to which transsexuals are permitted to gain and exercise parental rights."
I. THE LAW RECOGNIZING TRANSSEXUAL RIGHTS IS CRYSTALLIZING AS COURTS AND LEGISLATURES ARE IDENTIFYING AND ABANDONING FALSEHOODS SURROUNDING PERSONS WITH GENDER DYSPHORIA.
From the outset, Amicus notes that there is no international and little domestic law strictly about the rights of transsexuals to exercise parental rights in part because of misunderstanding and prejudice about the condition of gender dysphoria in general. Transsexuals face systemic adverse discrimination in a wide variety of contexts. In the face of this widespread discrimination, there is an emerging trend to ameliorate their condition vis-a-vis the law.
Issues surrounding parental rights usually are settled according to the child's best interest. 2 CORPUS JURIS SECUNDUM, Adoption of Persons, §49. "In determining custody, the primary considerations are the best interests and welfare of the child. . . . In determining the best interest of the child, the court considers several factors, such as the conduct of the parent in meeting the responsibility of establishing a significant relationship with the child and of providing for the child. In connection with this determination, the court may consider the fact that one of the natural parents gave consent to an adoption by a third party as evidence of that party's parental attitude." 14 CORPUS JURIS
A. Law from European and Other Democratic Countries
Several individual European states already have domestic legislation or case-law recognizing gender reassignment on civil status documents. Five European states have legislation allowing gender reassignment: Sweden (Law of 21 April 1972), Germany (Law of 10 September 1980), Italy (Law of 14 April 1982), the Netherlands (Law of 14 April 1985), and Turkey (Art. 2, Law of 12 May 1988). H. Delvaux, Legal Consequences of Sex Reassignment in Comparative Law, in TRANSSEXUALISM, MEDICINE AND LAW, Proceedings from 23rd Colloquy on European Law, Vrije Universiteit Amsterdam 14-16 Apr. 1993 (1995) (hereinafter, TML) 75, 81. Under former Czechoslovakian law, (Law No. 20/1966), treatment for gender dysphoria was allowed; as of 1993, the new Czech Republic was incorporating provisions of this former law into more detailed legislation. Id. at 158.
Prof. Doek has noted the legal implications of such legislation: the legislation does not change law concerning child custody, child support, and inheritance. J. Doek, General Report, in TML, 203, 218. Most importantly, Prof. Doek notes that this legislation implicitly recognizes the right to marry and to adopt children. Id. at 219. Indeed, German law expressly allows a transsexual to remain in their marriage. Under German law, not only can persons who do not undergo gender reassignment legally change their name while remaining married, a post-operative transsexual can have their civil status documentation changed and also marry. M. Will, Legal Conditions of Sex Reassignment by Medical Intervention -- Situation in Comparative Law, in TML. Polish law appears also to allow transsexuals to marry. "Second Ever Transsexual Couple Weds in Poland," Polish Press Agency, 31 August 1992 (cited in newspaper, ZYCIE WARSZAWY).
Besides legislation, courts in Belgium, Spain, France, Poland, Portugal, and Switzerland have allowed gender reassignment on birth registers. Will, supra, at 90; Doek, supra, at 219. Under Greek case-law, alteration of civil status regarding gender for hermaphroditism is allowed after an operation. Delvaux, supra, at 161. In Finland, the Supreme Administrative Court recognized gender reassignment as reflected in a transsexual's social security documents. Will, supra, at 82. And, Romania has allowed gender reassignment surgery. See "Romania: Romania Court Clears Transylvanian Sex Change," Reuters News Service, 19 April 1995 (cited in newspaper, TINERETUL LIBER) (Romanian court regarded transsexualism as disability requiring sex reassignment).
In the United Kingdom, strikingly enough, a Court of Appeal in 1981 allowed a transsexual visitation rights with his daughter. G. v. G. (1981) 11 Family Law 149 (CA) (1981). However, the Court of Appeal held that if, when visiting with his daughter, he "dressed in a way which [was] bizarre or aggressively feminine . . . it will be shown that his appreciation of the child's welfare [was] defective." Id. at 49 (cited in D.C. Bradley: Transsexualism -- Ideology, Legal Policy and Political Culture," in TML, at 64).
European regional law increasingly is recognizing the rights of transsexuals in general. The European Court of Justice just recently extended sex discrimination to cover transsexuals in the context of employment, holding that "to tolerate such discrimination would be tantamount . . . to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard." Case C-13/94, P. v. S. and Cornwall County Council, Eur.Ct.Justice, Judgment of 30 April 1996 at 22 (slip opinion). And, the Parliamentary Assembly of the Council of Europe has recommended the introduction of legislation giving legal recognition to gender reassignment. Recommendation No. 1117 on the Condition of Transsexuals (29 Sept. 1989). The European Parliament also has called upon the Council of Europe to enact a convention for protecting transsexuals. Resolution on Discrimination Against Transsexuals. Doc A3-16/89, OJ No C 256, 9 Oct. 1989. And, this Court's jurisprudence appears to be moving towards a greater recognition of the rights of transsexuals as reflected in the narrowing vote margins of the Court. See Rees v. United Kingdom, 106 Eur.Ct.H.R. (ser. A) (1986) (12-3 vote against finding birth registration system incompatible with Art. 8); Cossey v. United Kingdom, 184 Eur.Ct.H.R. (ser. A) (1990) (10-8 vote against finding birth registration system incompatible with Art. 8); B. v. France, 232 Eur.Ct.H.R. (ser. A) (1992) (15-6 vote
Canadian law allows the change of forename and other aspects of civil status. Arts. 71-74, Civil Code of Québec of 1991. Delvaux, supra, at 158. South Australian law authorizes gender reassignment treatment and surgery as well as allows the modification of civil status documents. Sexual Reassignment Act, No.49 (1988) (S. Austl. Stat.).
B. United States Law
Compared to European domestic and regional law, US legislators and judges historically have embedded myths and hostility towards transsexuals into US law, as discussed below.
1. Constitutional Guarantee of Equal Protection of the Law
The Fourteenth Amendment to the US Constitution guarantees equal protection of the law. Discrimination against transsexuals implicates two types of discrimination: gender and disability. Therefore, Amicus will examine the law governing disability and gender discrimination.
The US Supreme Court has held that governmental discrimination on the basis of disability need only meet the requirements of a minimal rational basis test. City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). In Cleburne, the US Supreme Court held discrimination on the basis of handicap will be presumed to be valid if it is rationally related to a legitimate governmental interest. In applying a minimal rational basis test to disability discrimination, the US Supreme Court based its decision on the fact that this discrimination had been motivated by a protective concern for mentally retarded persons.
[T]he distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that the lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary.
Id. at 443. It is important to note that the reasoning in Cleburne thus does not support the application of the rational basis test to discrimination toward people with gender dysphoria, since unlike much discrimination toward the mentally retarded, discrimination against people with gender dysphoria is not paternalistic or protective. "[I]f 'equal protection of the laws' means anything, it must at least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Romer v. Evans, 64 U.S.L.W. 4353, 4356 (U.S. 21 May 1996) (striking down state law prohibiting civil rights for gays and lesbians). Furthermore, Cleburne makes evident that government discrimination against a group can fail even under the minimal rational basis test. City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (lack of rational basis for requiring special use permit for home for mentally retarded held violative of Equal Protection guarantee).
Gender discrimination must meet the more difficult requirements of a "heightened rational basis test:" viz, legislative classifications based on gender must be substantially related to a sufficiently important governmental interest. Craig v. Boren, 429 U.S. 190 (1976). Like disability discrimination, gender discrimination historically has been paternalistic -- not necessarily motivated by malice. However, as the US Supreme Court noted in Frontiero v. Richardson, 411 U.S. 677 (1973), even paternalistic discrimination can be just as harmful as malicious discrimination: "Traditionally, [gender] discrimination was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women not on a pedestal, but in a cage." Id. at 684.
Unlike much of both gender and disability discrimination in general, discrimination against transsexuals has been irrational and malicious, and adverse discriminatory use of such a class is suspect.
Examples of suspect classifications include racial and ethnic classifications. A suspect class generally has the following characteristics: a history of purposeful adverse discrimination, prejudice unrelated to performance, a defining innate or immutable characteristic of its members, and/or a lack of political
Suspect classifications must receive strict judicial scrutiny. The "strict scrutiny test" traditionally is formulated as requiring a narrowly tailored means to achieve a compelling state interest. Cleburne, 473 U.S. at 440. To be narrowly tailored requires that the means is neither under-inclusive nor over- exclusive in obtaining the proffered governmental goal. As discussed in Cleburne, suspect classifications are so seldom related to a legitimate state interest that laws based on them are presumed to be motivated by antipathy, malice, and prejudice. Therefore, Amicus argues that as a matter of principle, a strict scrutiny test should be applied against discrimination against transsexuals.
US federal constitutional law now is beginning to reflect a more correct understanding of transsexualism. In a case last year, Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995), a US Court of Appeals examined the failure of prisons to provide hormone treatments to transsexual prisoners. The plaintiff challenged the prison's failure on the basis that this failure was unlawful discrimination on the basis of sex. The Appeals Court looked at previous discrimination cases dealing with transsexuals. In one case, Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977), a Court of Appeals had held that transsexuality did not meet "traditional indicia of a suspect classification because transsexuals are not a discrete and insular minority, and because the plaintiff did not establish that "'transsexuality is an immutable characteristic determined solely by the accident of birth' like race, or national origin." Id. at 971 (quoting Holloway v. Arthur Andersen & Co., 566 F.2d at 663). However, the US Court of Appeals in Brown v. Zavaras observed that "[r]ecent research concluding that sexual identity may be biological suggests reevaluating Holloway." Id. at 971. 1 Although the Zavaras court did not find transsexuals a suspect class, it declined to do so because the plaintiff's allegations were too conclusory to allow a proper equal protection analysis. The Court, however, did find a violation of the constitutional right against cruel and unusual punishment. See also Phillips v. Michigan, 731 F.Supp. 792 (W.D.Mich. 1990) aff'd 932 F.2d 969 (6th Cir. 1991) (same).
2. Americans with Disabilities Act.
The Americans with Disabilities Act ("ADA") prohibits disability discrimination; however, Congress expressly excluded "transsexualism" from the ADA's coverage. How members of Congress incorrectly understood gender dysphoria is best reflected by noting with what other excluded disorders Congress placed gender dysphoria. The ADA lumped pedophilia, exhibitionism, voyeurism, and transvestism together with gender dysphoria. 42 U.S.C. §12211(b). In light of the substantial consensus among the medical/psychiatric communities, 2 Congress' exclusion of gender dysphoria strongly suggests that the exception was motivated more by irrational prejudices than appropriate social policy concerns.
Indeed, legal scholars have criticized Congress' exception of gender dysphoria. See e.g., A. Hegel, The ADA as a Moral Code, 94 COLUM L. REV. 1451 (1994) (ADA effectively identifies sexual "deviant" as new pariah). Most significantly, Sen. Jesse Helms, who has consistently opposed anti- discrimination legislation, led the Senate forces in successfully excluding gender dysphoria from the ADA's coverage. Despite the contrary findings of the American Psychiatric Association, Sen. Helms stated that transsexualism as well as other sex-related differences were, " 'moral problems, not mental handicaps;' that they are 'addictions' with 'moral content' whose presence might render an individual unfit for working life." Id. at 1476-77 (citing 134 CONG. REC. 2401 (daily ed. 17 March 1988)).
3. Title VII of the Civil Rights Act of 1964
Title VII prohibits sex discrimination in employment. In nearly every Title VII case involving transsexualism, the court either failed to acknowledge that gender dysphoria was a legitimate medical and psychiatric disability or failed to recognize the current gender of a post-operative transsexual. See e.g., Ulane v. Eastern Airlines, Inc. 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (Title VII definition of "sex" does not include transsexualism); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982) (same); Holloway v. Arthur Anderson & Co., 566 F.2d 659 (9th Cir. 1977) (transsexualism considered sexual orientation -- not gender status). In these and other Title VII cases, judges incorrectly conflated sex, gender, and sexual orientation, which lead to unnecessary, non- principled, underinclusive, and unjust results. F.Valdes, Queers, Sissies, Dykes, and Tomboys:
4. State Law
Thirteen states expressly allow changes for gender reassignment on birth registrations: Alabama, Arizona, California, Hawaii, Illinois, Louisiana, Maryland, Michigan, New Jersey, North Carolina, Pennsylvania, Virginia, and Texas. Will, supra, at 81. Only Tennessee and Ohio do not. Remaining states approach the issue by means of case or administrative law. In the area of family law, a New Jersey state court held that a marriage between a man and a post-operative female transsexual was valid. M.T. v. J.T. , 140 N.J. Super. 77 (1976) (rejecting Corbett holding that biological sex is "fixed at birth" and immutable).
In the area of child custody, two states have reached different conclusions. In Colorado, the Appellate Court in Christian v. Randall, 33 Colo. App. 129, 516 P.2d 132 (1973) reversed a lower court ruling that had withdrawn child custody from a pre-operative transsexual. The court stated that in determining the best interests of the child, "the court shall not consider the conduct of a proposed custodian which does not affect his relationship with the child." Id., at 134 (citation omitted). The Appellate Court held that in view of the stability of the relationship that the transgendered parent had maintained with the child, transsexualism could not be used to withdraw custody.
In Daly v. Daly, 715 P. 2d 56 (Nev. 1986), cert. denied, 479 U.S. 876 (1986), a mother successfully sought to terminate custody rights of her child's father, who had undergone gender reassignment surgery. The Nevada Supreme Court cited the child's "revulsion" over her father's new gender. Id. at 59. It also cited the supposed problems inflicted upon the child by the father's unusual choice, having heard testimony from psychological expert that there would be a "risk of serious maladjustment, mental, or emotional injury [to the child]." Id. at 63. Accordingly, the court held that termination of her father's visitation rights was permissible.
However, the strong dissenting opinion argued that there was insufficient showing of clear and convincing evidence that the parental rights should be terminated. Mr. Justice Gunderson pointed out that expert concluded the risk to the child would occur "only if visitation was forced upon Mary." Id. at 63 (emphasis provided). Yet, the majority, ignoring both the legal position of the father as well as the facts, concluded there would be a risk of harm to the child "if visitation were permitted." Id. at 63 (emphasis provided). Mr. Justice Gunderson also stated in his dissent:
the fact that the appellant father has suffered emotional problems which are foreign to the experience of this court's members . . . does not justify a total and irrevocable severance of appellant's formal legal tie to a child he cares about and desires to help nurture. By holding that such a severance is justified in these facts, it seems to me, we are being unnecessarily and impermissibly punitive to the exercise of a medical option we personally find offensive, thereby depriving a child of a legal relationship which might well be to the child's advantage in the future.
715 P. 2d at 64 (Gunderson, J. dissenting) (emphasis provided).
II. BECAUSE DISCRIMINATORY TREATMENT AGAINST TRANSSEXUALS IS BASED ON SUSPECT DISABILITY AND GENDER CLASSIFICATIONS, STATE- PARTIES SHOULD ENJOY ONLY A NARROW MARGIN OF APPRECIATION IN LIMITING TRANSSEXUAL PARENTAL RIGHTS.
The European Court has stated that it "is conscious of the seriousness of the problems facing [transsexuals] and the distress they suffer." Rees v. United Kingdom, 106 Eur.Ct.H.R. (ser. A) at § 47 (1986). Persons with gender dysphoria face not only emotional suffering because of their dysphoria but also social ostracization. As Judge Martens has observed,
The United Kingdom decision in . . . Corbett v. Corbett . . . well illustrates this tendency: using terms which scarcely veil his distaste and basing himself on reasoning which has been severely criticised by various legal writers, the learned judge simply refused to attach any legal relevance to reassignment surgery. The reactions of the highest courts in other countries have not been more helpful.
Cossey v. United Kingdom, 184 Eur.Ct.H.R. (ser. A) at § 2.5 (Martens, J. dissenting). Accordingly, the European Parliament has stated its regret that "transsexuals everywhere are still discriminated against, marginalised and sometimes even criminalised." Resolution on Discrimination Against Transsexuals. Doc A3-16/89, OJ No C 256, 9 Oct. 1989 (as cited in M. Killerby, Speech, in TML, 13, 15.); see also F. Valdes, supra (discussing social and legal antipathies towards transsexualism in the US).
The members of this Court, the European Court of Justice, and the domestic law of several European countries have evidenced great sensitivity to the plight of transsexuals. US legislators and judges generally have not -- although this now appears to be changing. Inasmuch as the European Court of Justice has held discrimination against transsexuals is a form of sex discrimination in P. v. S. and Cornwall County Council and this Court has held that heightened judicial scrutiny must be applied to sex-based classifications in Abdulaziz, Cabales and Balkandali, 94 Eur.Ct.H.R. (ser. A) (1985), this Court should at the very least apply a heightened scrutiny test to discrimination against transsexuals. Given the social and legal reality of discrimination against transsexuals caused by ignorance and/or malice, it would be more appropriate as a general principle to use a narrow margin of appreciation (or "strict scrutiny test," as in US law) -- a fortiori in cases where other fundamental ECHR rights, such as the Article 8 right to respect for family life, are implicated. 3
Governments should not use suspect classifications -- even to protect a child from possible harmful effects of bigotry as a means of ensuring the child's best interests. In Palmore v. Sidoti, 466 U.S. 429 (1984), a divorced father tried to take custody of his daughter away from her mother after the mother began cohabiting with an African-American. Under an equal protection analysis, the US Supreme Court rejected the state's interest in preventing possible harmful effects arising from the child's living in a racially-mixed household.
The question . . . is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. "Public officials . . . may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice . . . ."
Id. at 433. As in the case of using racial prejudice, the state's interest in preventing possible harm to a child arising from societal hostility towards transsexuals is illegitimate.
III. THE ISSUE OF PARENTAL RIGHTS OF TRANSSEXUALS SHOULD BE EXAMINED IN LIGHT OF WHETHER A STATE'S DOMESTIC LEGAL ORDER IS IN LINE WITH THE DOMESTIC LAW OF OTHER EUROPEAN STATES AND
This Court repeatedly has declared that there is no legal obligation to make the ECHR part of domestic law. R. Bernhardt, "The Convention and Domestic Law," THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 25, 29 (R. St. J. Macdonald et al. eds., 1993). However, this issue is different from the Court's obligation to provide effective European supervision in determining the appropriate margin of appreciation to be enjoyed by state-parties. To ensure a democratic society and legal order, the internal legal order of a state-party must be able to check (through constitutional or other mechanisms) the tyranny of majorities exercising their will at the expense of vulnerable minorities.
"[D]emocracy does not simply mean that views of a majority must always prevail: a balance must be achieved which ensures the fair an proper treatment of minorities and avoids any abuse of a dominant position." Young, James and Webster v. United Kingdom, 44 Eur.Ct.H.R. (ser. A) (1980) at §63. Absent such checking mechanisms, it appears appropriate for the European Court to apply a narrower margin of appreciation. As suggested below, non-incorporation of Strasbourg law can impact upon the rights of transsexuals to exercise parental rights.
A. It is Necessary to Consider Whether a State-Party's Internal Legal Order Incorporates Strasbourg Law to Ensure a Coherent European Consensus and Unity.
The margin of appreciation doctrine allows a state-party to enjoy a wide margin where the laws of state-parties are divergent on a particular subject. In allowing a state-party to enjoy a wide margin in such cases, this doctrine creates a reasonable expectation that as a state-party develops its particular institutions and practices in adaptation to its particular social conditions, these institutions and practices will be developed in a manner responsive to, if not governed by, ECHR law and this Court's concerns. European unity as professed in the ECHR Preamble necessitates this presumption.
[T]he preamble to the European Convention, which recalls the aim of achieving greater unity between member States and stresses that Fundamental Freedoms are "best maintained" by a "common understanding and observance of . . . Human Rights," seems to invite the Court to develop common standards . . . in such a larger, diversified community the development of common standards may well prove the best, if not the only way of achieving the Court's professed aim of ensuring that the Convention remains a living instrument.
Cossey v. United Kingdom, 184 Eur.Ct.H.R. at 28 (Martens, J., dissenting).
If a state-party's internal legal order does not incorporate ECHR law, then the state-party's institutions and practices are likely to be substantially less responsive to this Court's concerns as compared to other state-parties incorporating ECHR law. "It is obvious that [for incorporating states] the influence of Strasbourg case-law is far more important than in those countries where the Convention has only the status of international law." J. Polaciewicz & V. Jacob-Foltzer, The European Convention on Human Rights in domestic law: The impact of the Strasbourg case-law in States where direct effect is given to the Convention (first part), 12 H.R.L.J. 65, 66 (1991). Government officials in non-incorporation states lack incentives for developing a domestic legal order consistent with ECHR law -- unless faced with a case-challenge before the European Commission or Court of Human Rights. If the internal legal order of one state-party is not developing within the discipline of Strasbourg law, then its domestic law may develop along a divergent path from other state-parties that do incorporate ECHR law.
As noted in Part I, there is a growing consensus among European states and regional institutions toward recognition of greater rights for transsexuals. See L. Helfer, Consensus, Coherence and the European Convention on Human Rights, 26 CORNELL INT'L L. J. 133 (1993) (discussing
B. It is Necessary to Examine Whether a State-Party's Internal Legal Order Incorporates Strasbourg Law in Order to Avoid Additional Harms Accruing to Other Associated Rights.
Besides posing an obstacle to consensus development, allowing a non-incorporation state-party to enjoy a wide margin of appreciation, can endanger other rights. ECHR law serves to limit harms to other rights associated with a case. This problem is made clearer where a narrow margin of appreciation is enjoyed. For example, in the Article 6(1) area of prisoner legal access where state- parties are given a narrow margin of appreciation, the European Court and Commission have found repeated violations by the UK of not only identical rights but also associated rights, such as those guaranteed by Article 8. See e.g., Golder v. United Kingdom, 18 Eur.Ct.H.R. (ser. A) (1975) (denial of access to solicitor through mail and meetings violated Art. 6(1)); Hilton v. United Kingdom, Application No. 5613/72, Eur.Cm.H.R., 3 EHRR 104 (1981) (denial of access to solicitor); Silver v. United Kingdom, 61 Eur.Ct.H.R. (ser. A) (1983) (Art. 6(1) and 8 violations for stopping mail between solicitor and prisoner); Campbell and Fell v. United Kingdom, Eur.Ct.H.R. (ser. A) (1984) (associated right to privacy of meetings violated Arts. 6(1) and 8). When a non-incorporation state-party repeatedly violates the same or associated rights, this suggests that non-incorporation itself encourages harms to associated rights. It also suggests that non-incorporation can lead to an unnecessary taxing of the Court and Commission's resources by causing unnecessary litigation.
Accordingly, giving a wide margin of appreciation to state-parties who do not incorporate ECHR law into their domestic legal orders not only poses obstacles to the development of European consensus but it also fails to discourage harms to other rights. European supervision should operate in such a manner so that no one state-party acquires advantages over other state-parties because of its peculiar internal legal order; this is particularly important when the advantage of receiving a wide margin of appreciation results in the detriment of fundamental rights recognized by the ECHR, such as the right to respect for family life and, specifically, the exercise of parental rights.
C. Effective Operation of Margin of Appreciation Doctrine Requires Consideration of the United Kingdom's Non-Incorporation of Strasbourg Law.
Three of the five European Court cases challenging a state-party's failure to recognize transsexual rights have come from the United Kingdom. Two of the these three cases dealt with the Article 8 right to alter one's own birth certificate. The instant case addresses an associated Article 8 right to indicate the de facto parent on a birth certificate. Since there is no reason to believe that there are a disproportionate number of transsexuals in the UK generating cases, this phenomenon suggests that the UK's internal legal order should be examined because (i) wide margins of appreciation have been allowed previously and (ii) the UK does not incorporate ECHR law into its domestic law.
Under UK domestic law, Parliament is presumed to legislate in accordance with international law. A. Clapham, HUMAN RIGHTS IN THE PRIVATE SPHERE, at 24 (1993). When a statute is in opposition to a treaty, the statute must prevail. When UK judges have used Strasbourg law, it has been used as an aid to statutory interpretation and only where governing law is "straightforward," as reflected in domestic and international law. An example is ex post facto criminal legislation Id.; see e.g., Regina v. Miah, 1 W.L.R. 683 (1974) (first use of ECHR in regard to retrospective criminal legislation). In another case, Derbyshire County Council v. Times Newspapers Ltd. and Others, 1 ALL ENGLAND REPORTS 1011 (1993), the UK Court of Appeals addressed the issue of whether a newspaper can be held liable for publishing articles critical of government entities. While the Court of Appeals used Article 10 as the principal reference for its reasoning -- rather than mere secondary support -- the House of Lords found no need to refer to the ECHR and upheld the decision under the common law of England. Id. at 1021. Note also that the case hardly addressed a controversial legal
It is insufficient that highly-placed government officials, such as Law Lords or the Home Secretary, provide assurances that English law will not violate the Convention. It is doubtful that such good intentions can filter down to those persons responsible for enforcing or interpreting English law consistent with ECHR law in the absence of more effective controls. It is much less comforting when sixty-six Parliament members vote for a bill aimed at giving Parliament the right to overrule European regional Court rulings. See T. Shaw & G. Jones, "Transsexual Wins Euro Court Case," THE DAILY TELEGRAPH, 1 May 1996, at 1. To allow the police, bureaucrat, or trial judge a wide margin of appreciation is an ineffective means of allowing law that is in transition to develop in a fashion consistent with the values of the European community.
Amicus is not arguing that the UK's internal legal order or any other non-incorporation state (viz., Denmark, Iceland, Ireland, Norway, and Sweden) is inherently incompatible with the regimen of the ECHR, 4 nor that non-incorporation is wholly dispositive of determining the appropriate level of deference to be given national authorities. The peculiar characteristics of a country's legal culture should be respected as a reflection of the peculiar social, economic, and political conditions obtaining in that country. 5 Indeed, Amicus recognizes the important contributions that English law has made to the protection of human rights.
Nevertheless, in order for the European Court's margin of appreciation doctrine to function effectively, the Court should take into consideration whether a state-party's domestic legal order minimalizes the possibility of additional harms to associated rights and promotes European consensus and unity. This consideration is especially compelling given the fact that the European Court cannot order state-parties to alter their domestic legislation.
It appears inevitable that as societal ignorance about gender dysphoria is eliminated that a person's ambiguous gender status will become less relevant. This Court can take a courageous stand with this sorely misunderstood group of people and further break down societal ignorance by recognizing disabled persons' rights and duties as parents.
Respectfully submitted, Dated: 28 June 1996
_________________________________ Francisco Forrest Martin, President
1 Indeed, in 1981 the French Regional Court of Toulouse in referring to researchers' discovery of a tissual antigen, recognized gender change as resulting from irreversible pre-existing factors as well as therapeutical surgery. According to Delvaux, many courts have recently accepted that gender change is "not the result of the intention of the person concerned, who is constrained by innate characteristics to undergo treatment and operations." Delvaux, supra, at 163.
2 See e.g., American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994).
3 In previous cases dealing with gender dysphoria, the European Court was not faced with a family of applicants.
4 The mere formal incorporation of ECHR law also can be insufficient, as evidenced by the Italian Government's repeated failures to conform its criminal procedures to the requirement of Articles 5 and 6, and the dilatoriness of its proceedings. J.
Polaciewicz & V. Jacob-Foltzer, supra, at 84.
5 In the US under its federal scheme of government, states are seen as important laboratories for testing social policy and
developing law which is in transition. Nevertheless, even federal-state comity interests recognize that the US Constitution, federal statutory laws, and treaties are the "supreme law of the land." U.S.Const. art. 6(2). Therefore, this federal constitutional law is given direct effect by the states.