John M. Ohle, B.M. DePauw University, 2001, J.D. candidate, University of Iowa College of Law, 2004. Special thanks to all my friends and family who have supported me throughout my various endeavors, especially my brothers Rob and Tom whose support and encouragement have been beyond compare. Thanks also to The Journal of Gender, Race & Justice.
Constructing the Trannie:1 Transgender People and the Law
It is learning how to stand alone, unpopular and sometimes reviled, and how to make common cause with those others identified as outside the structures in order to define and seek a world in which we can all flourish. It is learning how to take our differences and make them strengths. For the master´s tools will never dismantle the master´s house. They may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change.2
This paper uses three approaches to writing, form, and style in order to expose legal treatment of transgender individuals. The first approach is the "proper text" of this law review article. This approach reads as a whole by itself, yet the reader does not gain a full context without a complete reading Page 238 of the other sections as well.3 The second approach is to emphasize the footnotes. My attempt was to make the footnotes just as important as the proper text of this paper. In some instances I have put substantial discussions of topics within the footnotes; sometimes removing a full section from the proper text of the paper and placing it in a footnote. The purpose of this technique is to eliminate the mystique and second-class status that is generally communicated through the use of a footnote. Transgender individuals are often relegated to the footnotes; therefore I rise in opposition in two ways. First, I empower the footnote. The footnotes are not meant to be glossed over; rather, they are just as important as the text. 4 While the first oppositional method deals within the system (by acknowledging that there is something of a "second rate" standard associated with footnotes), my second oppositional method moves the transgender individual back into the main text of the paper. This (re)placement in the proper text is intimately related to the third approach to writing: personal quotes. These quotes are set off on the right side of the paper, and attempt to highlight what Vivian Namaste notes as the major flaw in most transgender academic writings, the erasure of the transgender voice.5
This paper is written in a pseudo-narrative form.6 This approach attempts to accomplish two goals. First, the narrative form empowers the Page 239 individual voice.7 Second, the form is a direct reaction to the ways in which the legal system treats transgender individuals as voiceless and sub-human. This paper´s central thesis is that transgender individuals are treated very poorly in the current legal system. Because the current system is doing such a poor job, and I am openly critiquing that system, it would be incredibly hypocritical for me to write in the same form that has so far accomplished very little in the way of creating legal rights and status for transgender individuals.8
Throughout the paper, I attempt to provide a theoretical framework to help aid the reader. I have placed footnotes labeling five sources of methodological theory that I use in the paper: feminist, gay, bisexual, queer, and transgender theories.9 I group all of these theories under umbrella labels at the beginning of the paper, and then use them throughout the paper as guideposts. This is a way to show the reader how certain theories react with(in) my over-arching theme, as well as to highlight those times when there are substantial differences between theories or practices-causing tension between groups or theories. This also helps to show where my personal viewpoints, biases and critiques stand throughout the paper. I am extremely critical of what I label "gay theory," but I attempt to acknowledge that bias and provide primary sources for readers to begin their own research into the merits of such a theory.
Throughout this article, I use the pronouns ze and hir for he/she and his/her respectively, as well as spell woman/women with a "y": womyn. I do this as a direct challenge to the structure of the English language-a language that often stifles gender variance because the very language that we use to express ourselves is encased in a very rigid binary gender code. Removing gendered terminology from our language will, at the very least, offer an acceptable (in my mind) alternative for transgender individuals, and will ultimately free us all from such narrow understandings of sex and gender in our society.
"I don´t know whether I am a man or a woman."10
John M. Ohle, March 2004
Where is the law school class that devotes time to defining and creating tests for what is a male and what is a female? I remember asking myself that question in criminal law during a discussion of rape law. "Umm . . ." I thought, "It seems problematic that we haven´t taken the time to define what exactly a womyn is. Can a womyn have a penis? And how is the hospital going to deal with that rape kit? And then what about the investigating police officers? What was the legislature thinking, and why are we, a law school class, not tearing apart their assumptions about gender? Aren´t we taught as law students to question everything?" It was abundantly clear that while we were to question-we were not to question gender. A womyn: That´s easy. A man: That´s easy. And voila, gender deviance is erased.
The lack of defining and challenging the concept of gender in law school and in the broader legal community is the motivation for this paper. This paper explores the intersections of transgender individuals and the law. How do legal institutions frame transgender people? How does that affect how the law treats transgender people? Through the exploration of these questions I conclude that the current legal system deals with transgender individuals very poorly. This conclusion is based in the courts´ "simplistic" reading of gender and sex. Although the work of academics in the area (feminist, gay, queer and transgender theorists) varies greatly, there is room to put all of the theories together within the law. Therefore, I propose three ideas to help remedy the problems transgender people experience with the law: (a) embracing the right to self-determination; (b) adding transgender persons as a class of individuals who qualify for suspect class scrutiny under the Equal Protection Clause; and (c) separating the concepts of gender and sex in the legal realm.
It was not until recently that transgender and gender variant individuals came to be included in the "gay" movement, now known as the GLB(T) movement.11 In order to understand how the legal system treats transgender individuals, we must first, briefly, trace the modern gay/gender movement in the United States.12 Stonewall, 1969, is often considered the beginning of the Page 241 modern gay rights movement.13 Drag queens, fags, trannies, and dykes all fought back when the police came to raid the Stonewall Inn.14 That night, and each night to come, the gay movement, and all of its offspring movements, has attempted to receive legitimatization from the police, the legal system, the medical system and all Americans.15 In response to Stonewall, the Gay Liberation Movement arose, and-at that time-was centered, focused, and mostly run by gay men.16 These gay men often saw lesbians as fighting their own battles in the feminist movement; a movement in which most men at the time were not interested.17
After a while, many gay men and lesbians decided that working together would be more effective than the separatist and failed identity- based movements of the past.18 Eventually, gay men and lesbians decided to add bisexual folks in their liberation movement, creating the GLB affiliation. The lesbians then, upset with the order of letters in the acronym, rearranged the letters, creating LGB.19 Transgender was added much later, creating LGBT;20 however, this move is still not universally accepted by some members of the movement. For example, it was not until 2001 (after years of open criticism) that one of the major gay rights organizations, The Human Rights Campaign (hereinafter HRC), finally added transgender people to its mission statement.21 It is not surprising that HRC still refuses to include Page 242 gender identity in the proposed Employment Non-Discrimination Act (ENDA) (which Congress has yet to pass).22
After all of this alphabet soup, folks...