Defining Sex in the 21st Century: Ambiguous Gender, Ambiguous Rules
Student ID # 022-6138
Legal Issues of the 21st Century
It seems that at an early age humans are capable of making the basic distinction of whether a person is male or female. On the average, men are larger than women, they are hairier, taller, more muscular, have penises instead of vaginas, and lack breasts. However, in the 21st century, this determination has become complicated for both ordinary citizens and the courts. This complication is a result of an increase the number of transsexuals that are openly identifying with a sex other than the one that they were assigned at birth. Advances in science and medicine have allowed transsexuals to change their bodies so that they depict an outward appearance matching the gender that the transsexual identifies with psychologically. The legal system is based on the assumption that people are born as either male or female and that they remain as such for the rest of their lives. Therefore, the increased presence of transsexuals and the fact that they are now able to change their outward appearances both surgically and cosmetically has made it difficult for courts to define what is a male and what is a male.
To the detriment of transsexuals, the legal system has set inconsistent standards for defining sex and has based these standards on criteria that do not adequately weigh the extent to which transsexuals psychologically identify with the gender that they have adopted. As a result, those with ambiguous gender live in a world with ambiguous rules. To begin, this paper will discuss what it means to be a transsexual. Next, it will analyze some of the legal issues facing transsexuals in the 21st century including; (1) the right to marry; (2) prison assignment; (3) name changes and (4) the right to compete in sports as a member of their adopted sex. This section will discuss the different standards that courts have set in an effort to define sex in each of these contexts. Throughout this paper, I will offer my suggestions as to how the legal system should change in order to accommodate the legal needs of transsexuals and to recognize the advances in science and medicine that have further justified and contributed to the transsexuals ability to live as a member of a sex other than the one that they were assigned at birth.
II. What is a Transsexual?
“A transsexual is an individual, either male or female, who is dissatisfied with his or gender her anatomical sex and desires to change it to better reflect the individuals gender identity.”[i] Many transsexuals are never comfortable with the bodies that they are born with. Those with male bodies feel that, other than their physical appearances, they are female and vice versa. Before attempting surgery to make their bodies match their identities, many transsexuals go to extremes to fit into the gender reflected by their bodies.[ii] For example, a pre-op transsexual (a transsexual who has not yet had an operation) from Wisconsin, named “Theresa” claimed that even though she had a male body, she “knew it wasn’t right”. [iii] Even though she felt like a female her entire life, she made two last ditch efforts at being male. [iv] First, right after her eighteenth birthday, she joined the Marines because ‘the Marine Corps builds men’ and she that maybe they could transform her into the man that she was supposed to be. [v] Second, Theresa married a woman. [vi] The couple were less like lovers and more like roommates. [vii] Theresa claimed that there were a few attempts at sex, but that she did not like it. [viii]
Transsexuals are not necessarily homosexuals, however some are attracted to members of their post-operative sex. What lies behind transsexualism is more than just a desire to look like the opposite sex. Transsexualism is the result of a gender spectrum. [ix] Many transsexuals are “intersex” also called “hermaphrodites”. [x]
According to a professional educator on issues concerning psychology and sociology of gender identity and gender roles, medical science has arrived at seven generally accepted areas of sex determination.[xi] A person will fall neatly into the category of male or female if they meet all seven of the criteria used to determine sex under the generally recognized binary gender role structure.[xii]
1. Primary sex characteristics (sexual organs – phenotypical)
2. Secondary sex characteristics (sex differentiation at puberty – phenotypical)
3.Hormonal sex characteristics (generation and use of primarily oestrogens or androgens)
4.Gonadal sex characteristics (presence of ovaries and testes – reproductive
5.Chromosomal sex characteristics (human X or Y combinations – genetics)
6.Brain structures and functions (characteristics generally vary by sex)
7.Gender identity (psychological sense of self in regard to gender typing).[xiii]
After puberty, most people meet all seven criteria. [xiv] However, once one of the criteria are missing, for example a woman has a hysterectomy and no longer meets the gonadal sex characteristics, the clear picture of what is male and what is female gets blurred. [xv] Is she still a woman even though she has no ovaries and can no longer reproduce? In the world of horses, once a male horse has had his testes removed he is no longer a stallion, but is referred to as a gelding.
The picture gets even blurrier when a person has all of the factors, but different factors indicate a different sex.[xvi] Prasse gave the example of “a person who has XY chromosomes, female primary and secondary sex characteristics, mixed gonadal characteristics, and a physical inability of the body to react to androgens, along with a woman’s psychological gender identity.” [xvii] To the human eye, this person would appear to be a woman. Therefore, at birth, a doctor would write “female” on her birth certificate despite the inconsistencies in the other binary sex factors. [xviii] It is likely that the doctor would also diagnose this person with Androgen Insensitivity Syndrome, a genetically inherited disorder, resulting in “voluptuous” women that are usually infertile. [xix]
What happens when the inconsistency is found in the person’s primary sex characteristics? The baby is a hermaphrodite, a person whose sex organs cannot be clearly defined as male or female.[xx] Currently, in order to be assigned the “male” sex, a baby must have a phallus at least one inch in length.[xxi] If the phallus lacks the requisite one-inch criteria, it is deemed a large clitoris and the baby is assigned to the “female” sex. [xxii] If the doctor feels that it is necessary, she will supplement this assignment with some surgical intervention and a life-long supply of medically administered female hormones. [xxiii] Hermaphrodite babies are at the mercy of their parents and their doctor to decide which gender they will be assigned and which role that they will play in society. Those babies that are victims of a bad decision, may grow up feeling an inconsistency between the gender that they were assigned and the gender that they identify with.
Unlike primary sex characteristics, chromosomal sex characteristics are not visible to the naked eye. It is assumed that most males have XY and most women have XX sex chromosomes. However, The Human Genome Project, conducted by the U.S. government, has found that there are both pairing errors in what are normally XX and XY pairs and additional chromosome patterns. [xxiv] The project has found that most people have five to thirty gene pairing errors in their normal XX and XY pairing. [xxv] A person may primarily have XX (female) chromosome pairing would normally be considered a medical female. [xxvi] However, when an error occurs in the XX pairing and a Y chromosome gets mixed in, it may overtake the XX pairs, giving the person male binary sex characteristics. [xxvii] The result is a person with mostly XX (female) chromosomes but male genitalia.[xxviii] At birth, the doctor will see a phallus longer than one inch and determine that this person is a medical male. Less common than gene pairing errors but nevertheless a reality, are chromosome patterns other than XX and XY. [xxix] Some of these combinations include XXY, XYY, XXXY, XYYY, XXYYY, XXX, and XO. [xxx] However, only XY and XX are recognized and they are presumed to match up with either the male or female genitalia. According to the Intersex Society of North America, 1 in 1,166 people born have a chromosomal make up other than XX or XY.[xxxi] American society is behind science in that it does not yet acknowledge that there is a gender spectrum. While we do acknowledge and to a large extent accept people that are different from the status quo, society and the legal system seem to have stuck their heads in the sand when it comes to acknowledging that there is more than one sex.
While “alternative gender styles” are not recognized in American culture, they were recognized by other cultures long before modern sex-change operations came into existence.[xxxii] For example, a man named Sporos, a friend of the Roman Emperor, Nero, had genitals that strongly resembled those of a woman.[xxxiii] Experts are in disagreement over whether Sporos was a hermaphrodite or whether he under went some sort of sexual reassignment surgery. [xxxiv] Nevertheless, Sporos was accepted by Rome. Similarly, several alternative gender styles were accepted in Native American Culture.[xxxv] Indigenous tribes used either the terms “berdache” or “winkte” to describe those that were neither men nor women but had some aspects of both sex.[xxxvi] Berdaches and Winktes were valued by their tribes and often took the prestigious roles of “ ‘ magicians, healers, priests, and visionaries.”’ [xxxvii] American society should take notes. We have catered to the majority of people that fit nicely into male and female roles. However, 1 out of every 100 people born has a body that differs in some respect from the standard male or female.[xxxviii] This rather significant minority should have the same legal rights as the majority.
Modern science has given the berdaches and winktes of modern society the ability to change their appearances to match the gender that they identify with inside. So far, science has been able to change everything except for the chromosomes. A person born looking like a man can now look and feel like a woman. However, the law will not necessarily treat her like a woman. While science has advanced to keep up with the growing needs of society, the law has remained fairly stagnant. Transsexuals are currently struggling not only to have the appearance of the gender that they identify with, but the rights as well. One legal right that transsexuals are currently fighting to obtain is the right to marry.
The right to marry is something that most people take for granted. I can personally say that I have pondered over whether I want to marry and what kind of person I might marry, but I have never thought that if I made the decision to marry that the government might deny me the opportunity. My thought process, that of a single, heterosexual female, is probably very different from that of a gay, lesbian, pre-op, or post op transsexual. Traditional notions of the meaning of the word "family" have created great obstacles for couples seeking to legalize same-sex marriages or marriages involving transsexuals.[xxxix] Homosexuals have been heavily scrutinized for adopting alternative life styles and for pushing society to see things in more than just black and white. In doing so they have gained much disapproval from society and limited support.
Homosexuals were the first group to have the validity of their marriages challenged by the courts. To my knowledge, there are no past societies that recognized homosexual marriage. In Turkey, Egypt, and Maghrib, it was acceptable for men to have dominant sexual relationships with young boys and male prostitutes. [xl] However, these men were not considered homosexuals.[xli] The sexual acts conferred a status of hyper-masculinity and were in no way considered a union between lovers.[xlii] Through the years, it has been set in stone that marriage is between a man and a woman.[xliii] Therefore, it is not surprising that society's opposition to same-sex marriages is rooted in a widespread disapproval of homosexuality.[xliv]
Many states have codified their opposition to homosexuality by passing sodomy statutes.[xlv] Twenty states have enacted these statutes and with them, the legal authority to "discriminate against lesbians and gays in employment, housing, health care, and family issues." [xlvi] The District of Columbia exercised this authority by prohibiting a same-sex couple from forming a legal marriage. [xlvii] The rationale behind the court's decision was that consummation of the marriage would entail a violation of the sodomy statute.[xlviii]
Attempts to challenge the constitutionality of sodomy statutes have been successful in some state courts.[xlix] However, the Supreme Court, in a showing of its preference for traditional, male-female relationships, held that sodomy statutes are constitutional.[l] For example, in Bowers v. Hardwick, the Court "ruled that the constitutional right to privacy does not extend to private, adult, consensual, homosexual sodomy." [li] In Bowers, the majority made it clear that it recognized no tie between homosexuality and marriage.[lii]
So far, only the state of Hawaii has recognized a same-sex marriage. [liii] To obtain a marriage license Hawaii, a couple must meet the requirements set forth in Hawaii Revised Statutes, Section 572-1. The Department of Health (DOH) will only grant a marriage license to those couples that are in complete compliance with HRS § 572-1.[liv] The applicant couple in Baehr alleged that the DOH denied their application for a marriage license for the sole reason that the couple was of the same sex.[lv] On May 1, 1991 the couple filed a complaint in the Circuit Court of the First Circuit, State of Hawaii, seeking: (1) a declaration that section 572-1 was unconstitutional because the Department of Health relied on section 572-1 in justifying its decision to deny the plaintiffs' marriage license for the sole reason that the applicant couple was of the same sex and (2) both a temporary and permanent injunction preventing the DOH from denying future applicants a marriage license solely because they are members of the same sex.[lvi]
In their complaint, the plaintiffs alleged that the Department of Health's interpretation of Hawaii Revised Statutes section 572-1 and its effect of prohibiting same-sex couples from obtaining a marriage license violated the Hawaii Constitution on several grounds.[lvii] First, plaintiffs allege that Department of Health's application of section 572-1 violated their right to privacy under article I, section 6 of the Hawaii Constitution. [lviii] Second, the couple alleged that by prohibiting same sex marriages, section 572-1 denied them equal protection of the laws under article I, section 5 of the Hawaii Constitution.[lix] Third, the plaintiffs argued that section 572-1 discriminated on the basis of sex and imposed upon the fundamental rights guaranteed to them by the constitution.[lx] The plaintiffs argued, that because the statute made sex based classifications, it should be subject to strict scrutiny test.[lxi]
The Hawaii Supreme Court held that: (1) Hawaii Revised Statutes section 572-1 did not violate the plaintiffs' right to privacy under article I, section 6 of the Hawaii Constitution and that a fundamental right to same-sex marriage can not be drawn from the right to privacy[lxii]; (2) "HRS § 572-1, on its face discriminates" on the basis of sex to the detriment of the applicant couple "in the exercise of the civil right of marriage" thus, bringing to issue the equal protection clause of article I, section 5 of the Hawaii Constitution[lxiii]; (3) "sex is a 'suspect category' for the purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution and that HRS § 572-1 is subject to the 'strict scrutiny' test."[lxiv]; (4) the Supreme Court of Hawaii further held that section 572-1 was presumptively unconstitutional unless the defendant could meet the burden of proving that (a) "the statute's sex based classification [is] justified by a compelling state interest and (b) the statute [is] narrowly drawn to avoid unnecessary abridgements of the applicant couples' constitutional rights."[lxv] Finally, the court found that the couple was granted an evidentiary hearing so that it could be determined whether the defendant could meet the elements of the "strict scrutiny" test.[lxvi]
On remand[lxvii], Honorable Kevin S.C. Chang of Hawaii's First Circuit Court held that the defendant did not meet his burden of proving that (1) Hawaii had a compelling state interest upon which to base its justification of the sex based classifications in section 572-1 or (2) section 572 was "narrowly tailored to avoid unnecessary abridgements of constitutional rights."[lxviii] Because the defendant was unable to meet his burden of proof under the "strict scrutiny" test, Judge Chang concluded that HRS § 572-1 was unconstitutional and granted relief in favor of the plaintiffs.[lxix]
In light of Hawaii's decision to uphold the same-sex marriage in Baehr, many states have drafted statutes expressly prohibiting same-sex marriages.[lxx] By enacting these statutes, states have clarified their opposition to same-sex marriages and their reluctance to recognize same-sex marriages granted by other states.[lxxi] The federal government provided backing for these statutes[lxxii] in 1996 by passing the Defense of Marriage Act (DOMA). DOMA does two things.[lxxiii] First, it gives states the choice of whether to recognize same-sex marriages and second, it assures that the federal government will not require states to "recognize same-sex marriages that violate strong public policy of those states."[lxxiv] Second, the act insulates the federal government and its programs from the responsibility of recognizing same-sex marriages granted by states.[lxxv]
B. Hermaphrodite Marriages
Unlike marriages between homosexuals, the courts have set little to no legal precedent concerning the validity of marriages where one member of the couple is a hermaphrodite. So far, there has been only one case concerning a hermaphrodites right to marry.[lxxvi] The case was decided in Australia in 1979.[lxxvii] The facts are as follows: Husband and wife were married for twelve years.[lxxviii] The husband was a hermaphrodite, having XX chromosomes and a combination of male and female genitalia.[lxxix] Throughout the marriage, the husband had undergone several surgeries in order to make himself more masculine.[lxxx] The wife brought an action to have the marriage annulled, claiming that it was never valid because her husband was not a man.[lxxxi] The court agreed, holding that the husband was neither a man nor a woman, that the marriage was invalid, and that as a hermaphrodite, the husband could not marry anyone.[lxxxii] According to this case, it seems that a hermaphrodite that has not undergone sex assignment surgery at the time of marriage loses the right to marry as a consequence of having ambiguous genitalia.
In the future, a case may arise where a hermaphrodite will have his/her marriage found invalid on the grounds that it was never consummated.[lxxxiii] Many jurisdictions will find a marriage invalid if one of the members is unable to engage in sexual intercourse.[lxxxiv] “Male impotence is most frequently understood as an incapacity to gain an erection, penetrate the female’s vagina and achieve ejaculation.”[lxxxv] A hermaphrodite husband may have a penis too small to penetrate a vagina.[lxxxvi] Likewise, a hermaphrodite wife may have a vagina that is “too short to accommodate full penile penetration.”[lxxxvii] Women that underwent surgery as infants to “normalize” their ambiguous genitalia also have problems with impotency.[lxxxviii] One study found that one out of every four women that had their clitoris operated on as infants are unable to orgasm and those that having vaginas constructed out of colon tissue lacked the “sensitivity, elasticity, and lubricating qualities of the typical vagina.”[lxxxix] Therefore, it seems that hermaphrodites are less likely to be able to consummate a marriage through sexual intercourse and are more likely to have their marriages annulled.
C. Transsexual Marriages
The transsexual adds a twist in the law concerning same-sex marriages, it adds the issue of “when is a man a man, and when is a woman a woman?”[xc] Most states prohibit marriage between people of the same sex. However, now that it is possible to change a person’s sex through surgery, hormone treatments, and counseling, can this person now legally marry someone of his/her original gender? In short, is a change of gender recognized by the law or does the law permanently tie you to the gender that you were assigned at birth? These were the main issues in Littleton.
The facts are as follows. Christie Littleton, a male-to-female transsexual, was born in San Antonio, Texas as a male.[xci] Her name at birth was Lee Cavazos, Jr.. Although Christie was born with a penis, scrotum, and testicles, she testified that she identified with the female gender as early as age three.[xcii] A physician prescribed male hormones in hopes that they would help Christie to identify with her male identity but was unsuccessful.[xciii] Christie still felt like a female. Even though she had a male physique, she refrained from sports and physical education because she was embarrassed to change clothes in front of boys.[xciv] By the age of seventeen, Christie had begun her search for a physician that would give her a sexual reassignment surgery.[xcv] Six years later, she began a program at the University of Texas Health Science Center that would help her to prepare for surgery.[xcvi] Christie went through four years of psychological and psychiatric treatment.[xcvii] In 1977, she successfully changed her name and began hormone treatments.[xcviii] Surgical procedures began in 1979 and by February of 1980, all of her male genitalia had been removed and replaced with a vagina, labia, and breasts.[xcix] According to the experts, Christie was a true male to female transsexual in that she was a psychologically and psychiatrically a female before and after the operations and that after the operation, she was also a female in the medical sense.[c]
Nine years after living as a woman, Christie married Mark Littleton in Kentucky.[ci] The two were married until he died due to medical malpractice in 1996.[cii] Upon his death, Christie filed a medical malpractice suit under the Texas wrongful Death and Survival Statute.[ciii] The doctor’s response to the suit was a motion for summary judgment.[civ] His argument was that Christie was a man and that as such, she could not collect under the statute as the wrongful death beneficiary and surviving spouse of another man.[cv] The trial court granted the defendant’s motion and Christie appealed.[cvi]
Christie’s case was one of first impression for the Texas courts.[cvii] Like most states, Texas does not recognize same sex marriages.[cviii] The issue to be determined by the court was whether Christie was a man or a woman?[cix] If they found that Christie was a woman, she could collect under the Wrongful Death statute, if she was found to be a man, she could not.[cx] In its analysis, the court looked at prior same-sex marriage cases, noting that Baehr was the only case in which a same-sex marriage was upheld.[cxi] It also noted that DOMA gives states the discretion to decide whether to uphold a same-sex marriage validated outside of their jurisdictions.[cxii] The court then asked the questions, “is a transsexual still the same sex after the sex reassignment operation as before the operation?”[cxiii] After looking at several cases involving transsexuals, the court quickly answered this question in the affirmative.[cxiv] In the eyes of the Texas court of appeals, despite all of the treatments, operations, and internal feelings, Christie was still a male.[cxv] Justice Harberger gave little basis for his decision other than briefly noting that Christie was still a male because although her body changed, her original chromosomes did not.[cxvi] He suggested that Christie’s only valid defense may have been that her original birth certificate was inaccurate but that she did not make this claim.[cxvii] Therefore, it was set in stone, a transsexual does not assume his or her post operative gender in the eyes of the law. Hardberger said that sex was “immutably fixed by our creator at birth.”[cxviii]
Consequences of Littleton v. Prange:
Mandatory Chromosome Testing?
Will we have mandatory chromosome testing at birth? According to Littleton, chromosomes are what determine whether a person is legally male or female. Rather than putting male or female on birth certificates, will we put XX, XY, XXY, etc.. If so, how will the government label people that have chromosomal patterns other than XX or XY. Would mandatory testing make the gender spectrum more apparent? If so, would the law be forced to recognize a spectrum of genders so that the intersexed would not be forced to live with ambiguous rights?
It seems that science is doing its best to understand gender identity issues and is also working towards solutions that will allow transgendered people feel whole. On the other hand, the law has ignored scientific advancements and has done its best to lock transsexuals into what God immutably gave them at birth. If the courts refuse to recognize a gender spectrum, and continue with the bright line rule that people are either XY or XX at the tie of birth, will science help transsexuals find a way around the law? So far, science has given transsexuals the ability to change their physical characteristics, is it possible that genetic engineering will eventually enable transsexuals to alter their chromosomal make up?
Tere Prasse suggested that altering a person’s genotype could alter that person’s phenotype from within.[cxix] As far as I know, there is no technology that is currently capable of either taking female, XX chromosomes and adding Ys or taking male XY chromosomes and removing the Ys and replacing them with Xs. One technology that may be a precursor to the chromosomal sex change is germ-line alteration.[cxx] Germ-line alteration is a new technology that focuses on techniques “which are able to provide precise gene replacement or insertion.”[cxxi] Scientists have experimented with several methods of altering genes including, microinjection of eggs and zygotes and embryonic stem cells.[cxxii] In theory, this type of gene therapy could enable a doctor to take the XY chromosomes of a male and replace the Y’s with Xs, turning the person into a chromosomal female.
If this technology became available, moral issues aside, a male to female transsexual could have SRS to gain the physical, gonadal, characteristics of a female and then go through gene therapy so that she would have the XX chromosomes required to be a female in the eyes of the law in the context of marriage. If this type of therapy had been available to Christy Littleton, she would have met all seven of the criteria required to be a woman in the context of marriage.
When the courts made same-sex marriages legally invalid, they were not thinking of same-sex marriages in a context involving transsexuals.[cxxiii] When transsexuals come into the picture, determining what constitutes a “same-sex” marriage becomes more difficult.[cxxiv] Julie Greenberg points to several hypothetical situations. Transsexuals can be a part of two types of marriages. [cxxv] The first is a marriage between a male and a post-op male to female transsexual.[cxxvi] This is the type of marriage in Littleton and like Christie and Jonathon, the couple in this marriage would consider it a heterosexual union.[cxxvii] Second, is the marriage between a post-op male to female transsexual to a woman.[cxxviii] The couple in this marriage few themselves as being part of a same-sex marriage.[cxxix] How will courts deal with these marriages? Greenberg lays out four possibilities:
First, they could declare, as they did in Littleton that the post-op transsexual is a man and that because the marriage is between two men, it violates the same-sex marriage statute.[cxxx] This decision would make the second type of marriage valid.[cxxxi] Second, the court could determine that the post-op transsexual is a woman and that the second marriage violates the same-sex marriage statute.[cxxxii] In this case, the first marriage is arguably valid.[cxxxiii] Third, they could take the stance that the post-op transsexual is neither a man nor a woman.[cxxxiv] On this basis, they may decide that neither the first nor the second marriage are valid.[cxxxv] On the other hand, the courts could take a very understanding and open stance.[cxxxvi] They could decide that the post-op transsexual has the right to decide whether to be a man or a woman and that both marriages are valid.[cxxxvii]
IV. Prisoner’s Rights
What happens when a transsexual goes to prison? Is the inmate protected against sexual harassment? In a harsh, prison environment, it seems that a transsexual might be preyed upon by other inmates or prison employees because of his or her gender differences. According to Littleton, a post-op male to female transsexual is legally a male. Does this mean that if a post-op female would be placed in a male prison? What about pre-op transsexuals? Should a pre-op transsexual that feels and dresses like women but has yet to undergo SRS be assigned to a male prison?
Prisons today are segregated by sex. Males go to one prison and women to another.[cxxxviii] The current standard for assigning transsexuals to prison is to “incarcerate persons who have completed sexual reassignment with prisoners of the transsexual’s new gender, but to incarcerate persons who have not completed it with prisoners of the transsexual’s original gender.”[cxxxix] In order to complete SRS, it is necessary for a male to female transsexual to have her penis removed.[cxl] Unlike the decisions concerning the validity of transsexual marriages, the decisions involving prison assignment have at least recognized post-op transsexuals as legally assuming their new gender. However, the segregation by genitalia standard for prison assignment is unfavorable and potentially dangerous for pre-op transsexuals. Under this standard, a person that associated herself with the female gender would be placed in a male prison. The existence of her penis aside, she would be the only woman in an all male environment and as such would be a target for sexual assault and rape.[cxli]
The segregation by genitalia standard is particularly problematic for those transsexuals that happen to get incarcerated in while they are in the process of transitioning from one sex to the other. For example, the plaintiff in Farmer v. Brennan, a pre-op male to female transsexual was convicted of credit card fraud and placed in federal prison.[cxlii] Farmer had lived as a female for years and had undergone cosmetic surgery to her face and hips, had breast implants, hormone treatments, and had even risked an unsuccessful, black market surgery to remove her testicles.[cxliii] Initially, Farmer was segregated from other inmates in order to protect her from sexual assault.[cxliv] However, she was eventually transferred to a new prison where the officials decided to incorporate her into the general, male population.[cxlv] Within two weeks she had been raped and beaten by another inmate.[cxlvi] Farmer brought suit alleging that by placing her in an all male prison, the prison officials had violated her Eighth Amendment right to be protected from cruel and unusual punishment.[cxlvii] The Court disagreed, holding that because Farmer still had a penis, prison officials had not acted with “reckless disregard for her safety” when they forced her into a general population of male prisoners.[cxlviii]
The segregation by genitalia standard not only submerses the pre-op, male to female transsexual to an all male prison population, it also subjects her to the authority of male prison guards. Constant supervision by a male guard raises both privacy and safety concerns for an inmate that identifies with the female gender. Robert Mitchell, a prison guard in Washington brought both of these issue to a head when he attempted to rape a transsexual inmate named Crystal Schwenk.[cxlix]
Douglas (“Crystal”) Schwenk was a pre-op male-to-female transsexual who planned at some point to have sexual reassignment surgery.[cl] Crystal identified herself as a female by the age of eleven.[cli] The court described her as “extremely soft-spoken and feminine, cries easily, and uses make up and other female grooming products when possible.” [clii] In June, 1993, Schwenk was incarcerated in an all male prison in Washington.[cliii] While in prison, she was under the control of prison guard Robert Mitchell.[cliv] Mitchell was aware that Schwenk was a transsexual.[clv] Almost immediately after Schwenk arrived at the prison, Mitchell made unwanted sexual advances towards Crystal.[clvi] He sexually harassed her by winking at her, propositioning her for sex, watching her in the shower while touching herself.[clvii] Crystal was scared of Mitchell and tried to avoid him, but eventually he ended up assaulting her.[clviii]
Crystal filed a complaint against Mitchell alleging a violation of her Eighth Amendment right to protection from cruel and unusual punishment and a claim under the Gender Motivated Violence Act.[clix] Prison guards have qualified immunity from civil suit damages unless their conduct violates ‘clearly established constitutional rights of which a reasonable person would have known.’ [clx] The appellate court denied Mitchell immunity.[clxi] Beginning with Schwenk’s constitutional claim, the court found that the 8th applies to all prisoners regardless of their sex and that it even protects against same-sex sexual harassment.[clxii] An inmate’s Eighth Amendment right will be violated if the officer’s actions were offensive to human dignity. No showing of physical injury is required.[clxiii] Under this standard, the court held that under similar circumstances, a reasonable prison guard could not have believed that it was okay to enter a prisoner’s cell and assault her.[clxiv]
Next, the court addressed Schwenk’s claim under the Gender Motivated Violence Act (GMVA), part of the Violence Against Women Act.[clxv] The act was intended to benefit victims of “crime[s] of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.”[clxvi] The issues were, (1) whether the acts fell within the statutory definition of crimes of violence, (2) whether men are protected by the Act and (3) whether transsexuals are covered by the act and if the requisite gender motivation is present in a case involving a transsexual?[clxvii]
First, the court found that attempted rape clearly fell under the statutes definition of a crime of violence. Second, the court rejected Mitchell’s assertion that a sexual attack by one man on another cannot be “gender motivated”.[clxviii] It also noted that although GMVA is part of the Violence Against Women Act, Congress intended the act to protect all sexes from gender motivated violence, not just women.[clxix] Therefore, the court found that men are covered by GMVA.[clxx] Third, the court addressed the issue of “gender motivation”.[clxxi] It found that Mitchell’s actions were at least in part motivated by Schwenk’s gender. [clxxii] Specifically by the feminine, rather than masculine identity.[clxxiii]
It seems that the legal system has made some significant steps towards recognizing transsexuals in the prison environment. Farmer allows transsexuals to choose whether to be assigned to a male or female prison just as long as they have genitalia that match their choice. Schwenk sets in stone that transsexuals are to be legally protected against gender motivated violence. However, there is still a need for change. Prison assignment by genitalia is helpful for transsexuals that have already had SRS but it is detrimental to those that have not.
I propose that prisons should be assigned by gender rather than genitalia. Assignment by gender would meet the needs of both pre-op and post-op transsexuals. Under this standard, a person that has lived as a woman and has been convicted of a crime would be sentenced to a female prison.[clxxiv] Prisons would remain sex-segregated. The only difference would be that if an inmate claimed to be a transsexual, they would request either to go to a male or a female prison.[clxxv] Officials could then do a background check to ensure that the inmate actually had a history of identifying with the gender that the inmate requested.[clxxvi] For example, if a pre-op, male to female transsexual requested assignment to a female prison, officials could ensure that she had a history of identifying with the female gender by looking at several factors. [clxxvii]
First, officials would look at the applicant’s physical appearance.[clxxviii] Does she look like a woman? Does she wear women’s clothes, makeup, or jewelry? Does she shave? Has she had any non-genital surgeries to make her appear more feminine? [clxxix] If so, how long has she maintained a female appearance? Second, officials could require a psychological evaluation to determine whether the applicant psychologically identifies with the other gender or whether she is merely a nonconformist.[clxxx] Psychological studies of this type are frequently used to determine whether someone is a transsexual.[clxxxi] Finally, officials could look at the way the applicant lived prior to the conviction. Did she successfully live her life and hold her self out to society as a woman? If so, how long? If she only did so for a few months, then she probably has not completely identified with the female gender. However, if she has lived as a female for years, it could be concluded that she has successfully identified with the female gender.[clxxxii]
V. Name Changes:
One legal issue that transsexuals have and will continue to face in the twenty-first century is that of getting a name change. Most states have statutes allowing for name changes in certain situations. For example, a Pennsylvania statute permits a person to change her name as long as such name "is used consistently, nonfraudulently, and exclusively."[clxxxiii] In cases involving transsexuals, courts have denied name changes on the theory that by changing his or her name, a transsexual may be committing fraud.[clxxxiv] Generally, pre-op transsexuals have faired the worst in their struggle for name changes. William, a pre-op transsexual applied for a name change in New York, his purpose for changing his name was "to avoid embarrassing situations due to [my] sexual preference and physical well being."[clxxxv] Despite the lack of facts that would lead one to infer fraudulent intent, the court denied William's petition to change his name to Veronica.[clxxxvi] The New York court said that petitioner had failed to prove whether he was a transvestite or a transsexual, and if he was a transsexual, whether he had undergone SRS to make himself "anatomically" and "physically" a woman.[clxxxvii] In an earlier case, New York granted a post-op transsexual a name change on the theory that after the operation, she was a woman, and therefore there was no fraud.[clxxxviii] In compliance with its earlier decision, the court justified its denial by stating that absent SRS as "supportive evidence", the change "from a 'male' to a 'female' name would be fraught with the danger of deception and confusion and contrary to public interest."[clxxxix] According to the holding in Littleton, a post-op male-to-female transsexual appears to be a woman but is legally a man.[cxc] On the other hand, the precedent cited in this case suggested that a post-op transsexual is legally a woman. ? Just a thought.
With the increased popularity of plastic surgery and the increased acceptability of sexual differences, people are increasingly changing what "our creator immutably gave them at birth".[cxci] According to the precedent set in these cases, in order for a transsexual, a person that is psychologically and possibly chromosomally different from the sex that they were assigned at birth, to assume a name of the gender that they identify with, to change their name, they must undergo SRS. If they don't, they are committing a fraud. However, the rest of society can change their names for any reason just as long as it is not in the furtherance of fraud. What if a pre-op transsexual wants to change his or her name to a name that both sexes use such as Joe, Sammy, Bailey, Morgan, or Brooke? If SRS becomes too costly, will transsexuals have to live with their birth names? Will we have Mary's with beards and Peter's with breasts? At the time that name-change statutes were written, SRS was not an option and transsexuality was not discussed.
These cases do nothing for hermaphrodites. Is a hermaphrodite a fraud-risk if they were assigned the name Mary at birth because their ambiguous genitals looked more like a large clitoris than a small penis, however Mary always felt like a boy. All of her life, Mary has associated with the male gender. It seems as though the doctor made the wrong choice, so later in life Mary assumes the life of a man. Rather than having a large clitoris, Mary is a male that is perfectly satisfied with having a small penis. Mary starts calling herself Marvin and continues life as a man. Mary petitions to have her name changed to Marvin and the court denies her request because she has not had SRS to change from a female to a male. Mary argues that she does not need SRS, she has just decided to call her large clitoris a small penis.
The potential for fraud in women's sporting events has been a concern of Olympic committees for years.[cxcii] As early as the 1960's, the Olympics became concerned with the issue of men competing as women.[cxciii] At first, the committee's plan to detect gender fraud was to conduct nude line-ups of the athletes prior to competition.[cxciv] The Committee stopped this method of fraud detection and began conducting chromosome tests.[cxcv] What is interesting is that they did not stop because they felt that the line-ups were inaccurate, they thought that they were too intrusive and embarrassing.[cxcvi] Their new approach unveiled a new issue. Some Olympic athletes were intersexed.[cxcvii] The committee encountered athletes with female genitalia and either a chromosomal combination other than XX or those that had "androgen insensitivity" syndrome and XY chromosomes, both were disqualified.[cxcviii] Years after disqualification, some of these women had babies and the Olympics, realizing that they had wrongfully accused these athletes of fraud, rethought their need for "gender verification."[cxcix] At first they took a step back and conducted a spandex test.[cc] The theory was that a man could not hide his penis in spandex and the test was less embarrassing than a line up.[cci] However, the test was short lived and in 1992, the committee eventually did away with testing all together. [ccii]
How will sports deal with transsexuals that have had SRS? If a post-op male-to-female transsexual made it onto the United States track team, could she compete? She would pass the Olympics' nude line-up test and the Spandex test. According to the chromosomal standard from Littleton, she is legally a male. However, under the genitalia standard used in prison assignment, she is a female. This still doesn't answer the question as to whether she is a fraud. She would medically and psychologically be a female and the female hormones would have replaced the testosterone that may have given her a competitive edge.
In Richards v. United States Tennis Association, a post-op male to female transsexual was allowed to compete as a female tennis player. Richards, a 41 year old physician was nationally ranked as a male tennis player.[cciii] After living as a transsexual for years, Richards underwent SRS.[cciv] After completing SRS, Richards competed successfully as a woman in nine tennis tournaments.[ccv] In 1976, Richards applied to qualify and play in the U.S. Open, completely disclosing her medical history.[ccvi] In order to play as a woman, the United States Tennis Association, required Richards to submit to the sex-chromatin test.[ccvii] The USTA felt that the test was a “reasonable way to ensure fairness and equality of competition when dealing with numerous competitors from around the world.”[ccviii]
The Barr-body test takes a cell sample from the athlete’s cheek and searches it to ensure that the athlete wanting to compete as a female has XX chromosomes and not XY.[ccix] The Y chromosomes, give males, on the average, “greater height, different body proportions, and higher muscle mass than females.”[ccx] The existence of a Y chromosome would presumably give an athlete an advantage if playing against athletes that did not have Y chromosomes. Under the Barr-body test, Richards would be a male.[ccxi] Richards’ experts pointed out and the court agreed that while the Barr-Body test would classify Richards as a male, due to extensive hormonal treatments and surgical procedures, Richards body no longer responded to Y chromosomes in a way that would give her a competitive edge.[ccxii] At the time of application, Richards had the height, muscle mass, and hormonal make up of the average woman.[ccxiii] Therefore, the court held that requiring Richards to submit to the Barr-body test and holding the results as determinative of her status as a competitor was “grossly unfair, discriminatory and inequitable, and violative” of her human rights. [ccxiv]
Unlike Littleton, Richards seems to suggest that the confining a post-op transsexual to chromosomal based sex classification is grossly unfair. I find it interesting that in the context of marriage, the only criteria relevant to determining a person’s sex is what god gave them at birth, in the context of prison assignment, the relevant criteria is the presence of genitalia, and in the context of sports, sex is determined by the actual functioning of the body. In none of these contexts has the criteria been set at gender identity alone. Should it be? I doubt that the court would have found it grossly unfair for Richards to be denied the right to play in the U.S. open if she had not undergone SRS and hormone treatments. Without such treatments, her Y chromosomes would give her a competitive advantage. In the absence of SRS, a chromosome test seems justifiable in the context of sports. Littleton suggests that the same test should be determinative in sex classification for the purposes of marriage. Is a chromosomal test justifiable or unjustifiable in the context of marriage for the same reasons that it is in the context of Sports? I doubt it.
As this paper has shown, determining a person’s sex can be a difficult task. Science attributes this difficulty to the fact that there is a gender spectrum, varying between the two extremes of XY(male) and XX(female). To complicate matters further, the legal system was created on the assumption that there were only two sexes. The system does not acknowledge the portion of people that fall in between as having a gender other than male or female. Rather it looks primarily to the person’s physical characteristics at birth and assigns the person a sex on that basis. Now that times have changed and many transsexuals are openly living as the sex that they identify with, the issue of defining what is a man and a woman has become more complicated. Transsexuals are challenging the rigidity of the system and are pushing for a definition of sex that looks beyond historically accepted criteria.
While the courts have set precedent for defining sex in the 21st century, they have created different rules for defining sex that vary with the legal context. The result is that people with ambiguous gender have ambiguous legal rights. For example, a post-op, male to female transsexual may be assigned to assigned to a female prison, she would not be a female in the context of marriage. In the context of marriage, sex is defined primarily by looking at chromosomal factors. This standard assumes that regardless of gender identity, hormonal characteristics, and changes made to phenotypical sex characteristics, a person is stuck with the sex corresponding to their immutable, chromosomal makeup, presumably either XX or XY.[ccxv] On the other hand, in the context of prison assignment, sex is determined the existence or the non-existence of a penis.[ccxvi] Therefore, a male to female transsexual may be assigned to a female prison provided that the penis she was born with as been surgically removed.[ccxvii] Similarly, a pre-op, male to female transsexual will not be allowed to change her name from Mike to Michelle until she has undergone complete SRS.[ccxviii] In the context of sports, is determined by the actual functioning of the body.[ccxix]
These inconsistent standards are unfair to transsexuals because they are left unsure as to when they are male and when they are female. I think that the legal system should acknowledge the gender spectrum. In doing so, the system should give transsexuals the opportunity to legally identify with the gender of their choice, provided that the transsexual can show a history of identifying with the gender that they choose. Under this method, chromosomal make up, hormones, phenotypical characteristics, and gender identity would all be considered however, the existence or non existence of one or more factors would not be determinative. I also recommend that once a transsexual is legally assigned to a particular sex, he/she would be recognized as that sex in all contexts. This would leave the transsexual on equal standing with the majority of society in that he/she would be confident of his/her sex in the eyes of the law in general.
[i] Katrina C. Rose, The Transsexual and the Damage Done: The Fourth Court of Appeals Opens Pandoma’s Box by Closing the Door on Transsexual’s Right to Marry 9 Law & Sex. 1, 14 (1999-2000).
[xi] Medical Sex v. Social Gender: Tried in the Court of Human Knowledge and Experience, the 21st Century CE at http://christielee.net/med3.htm.
[xx] Phyliss Randolph Frye, The International Bill of Gender Rights vs. Cider House Rules: Transgenders Struggle With the Courts Over What Clothing They Are Allowed to Wear on the Job, Their Right to Marry, and the Very Definition of Their Sex, 7 Wm. & Mary J. Women & L. 133, 162 (2000).
[xxi] Medical Sex v. Social Gender: Tried in the Court of Human Knowledge and Experience, the 21st Century CE at http://christielee.net/med3.htm.
[xxvii] Medical Sex v. Social Gender: Tried in the Court of Human Knowledge and Experience, the 21st Century CE at http://christielee.net/med3.htm
[xxx] Phyliss Randolph Frye, The International Bill of Gender Rights vs. Cider House Rules: Transgenders Struggle With the Courts Over What Clothing They Are Allowed to Wear on the Job, Their Right to Marry, and the Very Definition of Their Sex, 7 Wm. & Mary J. Women & L. 133, 167 (2000).
[xxxi] Intersex Society of North America Website at http://www.isna.org/faq/frequency.html.
[xxxii] Katrina C. Rose, The Transsexual and the Damage Done: The Fourth Court of Appeals Opens Pandoma’s Box by Closing the Door on Transsexual’s Right to Marry 9 Law & Sex. 1, 20-21 (1999-2000).
[xxxiii] Id. at 20.
[xxxviii] Intersex Society of North America Website at http://www.isna.org/faq/frequency.html
[xxxix] Nancy K. Kubasek et al, Fashioning a Tolerable Domestic Partners Statute in an Environment Hostile to Same-Sex Marriages, 7 LAW & SEX. 55 (1977).
[xl] Bruce Dunne, Power and Sexuality in the Middle East, Middle East Report, Spring 1998 at http://www.merip.org/mer/mer206/bruce.htm.
[xliii] Nancy K. Kubasek et al, Fashioning a Tolerable Domestic Partners Statute in an Environment Hostile to Same-Sex Marriages, 7 LAW & SEX. 55,57 (1977).
[xliv] Id. at 58 (citing Stephen Bransford, Gay Politics vs. Colorado and America: The Inside Story of Amendment 2 (1994))(author suggests that opposition to same-sex marriages is rooted in the fear and dislike of homosexuality).
[xlvii] Id. at 59 (citing Dean v. District of Columbia, No.90-13892,1992 WL 685364 (D.C. Super Ct., June 1992), aff’d, 653 A.2d 307 (D.C. 1995).
[xlviii] Nancy K. Kubasek et al, Fashioning a Tolerable Domestic Partners Statute in an Environment Hostile to Same-Sex Marriages, 7 LAW & SEX. 55,59 (1977).
[l] Id.(citing Bowers v. Hardwick, 478 U.S. 186 (1986); Griswold v. Connecticut, 381 U.S. 479 (1965); Carey v. Populations Servs. Intl., 431 U.S. 678 (1977)).
[lxvii] Nancy K. Kubasek et al, Fashioning a Tolerable Domestic Partners Statute in an Environment Hostile to Same-Sex Marriages, 7 LAW & SEX. 55,62 (1997)(citing Baehr v. Milke, 950 P.2d 1234 (Haw. 1997).
[lxxvi] Professor Katherine Franke, Legal Aspects of Gender Assignment, Columbia University of Law at 7.
[lxxxiv] Id. (citing Handley v. Handley, 3 Cal. Rptr. 910 (Cal. Ct. App. 1960), Gerwitz v. Gervitz, 66 N.Y.S.2d 327, 329 (1945), Houlahan v. Horzepe, 46 N.J. Super. 588 (1957), Colorado Revised Statutes § 14-10-111(1)(b)).
[cxix] Medical Sex v. Social Gender: Tried in the Court of Human Knowledge and Experience, the 21st Century CE at http://christielee.net/med3.htm.
[cxx] D.R.J Macer, Shaping Genes: Ethics Law and Science of Using New Genetic Technology in Medicine and Agriculture, Eubios Ethics Institute, 1990 ¶. 295-324.
[cxxiii] Julie A. Greenberg, When is a Man a Man and When is a Woman a Woman, 52 Fla. L. Rev. 745, 759 (2000).
[cxxvii] Julie A. Greenberg, When is a Man a Man and When is a Woman a Woman, 52 Fla. L. Rev. 745, 761 (2000).
[cxxxii] Julie A. Greenberg, When is a Man a Man and When is a Woman a Woman, 52 Fla. L. Rev. 745, 761 (2000).
[cxxxviii] Leane Renee, Impossible Existence: The clash of Transsexuals, Bipolar Categories and Law 5 Am. U.J. Gender & L. 343, 376-77(1997).
[cxlv] Leane Renee, Impossible Existence: The Clash of Transsexuals, Bipolar Categories and Law 5 Am. U.J. Gender & L. 343, 375(1997).
[cl] Id. at 1193.
[clx] Schwenk v. Hartford, 204 F.3d 1187,1195-96 (9th Cir. 2000)(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
[clxxiv] Leane Reene, Impossible Existence: The Clash of Transsexuals, Bipolar Categories, and Law, 5 Am. U.J. Gender & L. 343, 384 (1997).
[clxxxiii] 54 Pa. C.S.A. § 701.
[clxxxiv] See generally, Katrina C. Rose, The Transsexual and the Damage Done: The Fourth Court of Appeals Opens Pandoma’s Box by Closing the Door on Transsexual’s Right to Marry 9 Law & Sex. 1, 31-33 (1999-2000).
[clxxxv] In re Anonymous, 587 N.Y.S.2d 548 (1992).
[cxcii] Phyliss Randolph Frye, The International Bill of Gender Rights vs. Cider House Rules: Transgenders Struggle With the Courts Over What Clothing They Are Allowed to Wear on the Job, Their Right to Marry, and the Very Definition of Their Sex, 7 Wm. & Mary J. Women & L. 133, 171 (2000).
[cxcviii] Phyliss Randolph Frye, The International Bill of Gender Rights vs. Cider House Rules: Transgenders Struggle With the Courts Over What Clothing They Are Allowed to Wear on the Job, Their Right to Marry, and the Very Definition of Their Sex, 7 Wm. & Mary J. Women & L. 133, 171 (2000).
[ccxvi] Leane Renee, Impossible Existence: The clash of Transsexuals, Bipolar Categories and Law 5 Am. U.J. Gender & L. 343, 376(1997).