Sex is documented, administered, and adjudicated via a network of statutes, regulations, and administrative rules that is astonishing for both its inconsistencies and its complexity. (1) Courts and agencies tasked with issuing identity documents, or determining who qualifies as a spouse for the purposes of marriage licenses or same-sex marriage bans, routinely adjudicate the question of sex--employing "common sense" approaches to determine whether a person is "male" or "female." (2) For transgender persons seeking new drivers' licenses or other forms of official recognition, (3) the folkways of sex can be particularly dire because courts have naturalized both the idea of binary sex and the impossibility of sex reassignment. In refusing to recognize a transgender woman as a legal woman, a Texas appeals court exclaimed, "There are some things we cannot will into being. They just are." (4) The Kansas Supreme Court followed suit, stating: "[W]e recognize that J'Noel has traveled a long and difficult road. J'Noel has undergone electrolysis, thermolysis, tracheal shave, hormone injections, extensive counseling, and reassignment surgery. Unfortunately, after all that, J'Noel remains a transsexual, and a male." (5)
Yet, despite our collective belief in the inevitability of sex and the categories "male" and "female," sex identities evade binary categorization and neat, tidy description even at the level of biology. Every year, thousands of infants are born intersex, with bodies that fuse the chromosomes, hormones, gonads, genitals, internal sex organs, and secondary sex characteristics typically thought to be defining of "male" and "female." (6) Every year, thousands of adults also seek to change their sex--resisting the notion that sex is fixed and accurately determined at birth. (7) In addition, even those who grow up secure in their identities as "male" or "female" are assigned to a sex category, not by karyotyping, (8) but by cursory inspection of their genitals at birth, so that their anxious parents can know whether to swaddle them in a pink or blue blanket.
These phenomena challenge the very foundation of sex; indeed, as one researcher has noted, "any close study of sexual anatomy results in a loss of faith that there is a simple, 'natural' sex distinction that will not break down in the face of certain anatomical, behavioral, or philosophical challenges." (9) Faced with the true complexity of sex identity and sex difference, binary sex classifications can only be viewed as a social construct that disciplines the body in ways that defy logic, compassion, and medical science. (10)
This Article breaks new ground by proposing a new equal protection doctrine that takes cognizance of the realities of sex, and regards sex categories as a suspect classification, not based on immutability, but on ground of sex categories' very imprecision. In arguing that sex should be accorded strict, not intermediate, scrutiny, this Article takes note of the parallels between sex discrimination and race discrimination--parallels that emerge when binary sex classification is understood to be neither innate nor natural. Viewed through this lens, demanding that people be officially classified by sex is just as invidious as maintaining registries of racial composition, a now disavowed practice. (11)
Part I of this Article explores myths and realities of sex difference and examines how binary conceptions of sex break down. Turning to transgender and intersex identities, this Part explores the way that science and medicine manage and discipline unruly bodies in an effort to deny the pluralism of sexual identities that truly exists. It also focuses on law's complicity--examining how courts and administrative agencies have naturalized the notion of "male" and "female" and perpetuated myths of innate sex difference.
Part II urges the adoption of a new equal protection standard for sex--a constitutional doctrine that recognizes the way that the categories of male and female are socially constructed, and regards sex classifications as suspect because of their arbitrariness. Looking to equal protection case law, this Part establishes that mutability as well as immutability renders a classification suspect. In addition, it discusses how a strict scrutiny approach to sex discrimination will lead to a more robust understanding of discrimination based on gender identity and gender roles.
Part III explores the potential pitfalls of applying strict scrutiny to sex and of regarding sex classifications as presumptively invalid. Tracking the experiences of racial minorities under the Fourteenth Amendment, this Part queries whether suspect classification leads to empowerment or erasure. Does suspect classification embody an anti-subordination principle? Or is it largely symbolic--mandating a "colorblindness" and "gender-blindness" principle that prevents people from being named in the law? In Part IV, after exploring these paradoxes, this Article briefly concludes.
Throughout this Article, sex is used to refer narrowly to the terms "male" and "female" as they are used to refer to innate biological difference and a stable and coherent dichotomy. In contrast, gender is used to refer to masculinity, femininity, and social roles, as well as the terms "male" and "female," when they are voluntarily assumed as a preferred label or identity. In arguing that sex can be viewed as a social construct, this Article does not seek to deny the salience of these categories or preclude their usage for self-identification purposes any more than does the scholarship pertaining to the social construction of race. Instead, this Article questions commonplace beliefs about sex and the law's ongoing involvement in the documentation, administration and adjudication of sex identities.
Finally, it is important to note the intended reach of this Article. By urging the adoption of a strict scrutiny approach to sex, this Article advocates for transgender and intersex persons as well as all those presently harmed by the narrow and rigid jurisprudence on sex--a group that includes women seeking the fundamental right to equality, including pregnant women, (12) gays, lesbians and bisexuals, (13) and all those who are sex identity deviant--e.g., masculine women, effeminate men, men who seek to enter female-dominated professions and women who long to work in a labor market not beholden to sex stereotyping. (14)
The Social Construction of Sex
Myths and Realities of Sex Difference: The Assignment of Sex
Losing one's faith in sex does not require much--it is sufficient to learn how bodies become designated as "male" and "female" in the first place. Although biology textbooks instruct that men and women are reliably defined by reference to chromosomes (XX, XY); hormones; gonads (testes, ovaries); internal organs (prostates, vaginas, uteruses); external sex organs (penises, scrotums, clitorises, labia); secondary sex characteristics (hair, breasts, bone structure); and sex and gender identity, (15) physicians tasked with determining sex in newborn children rely on a much cruder indication: the appearance of the infant's genitals. (16)
The process could scarcely be more arbitrary. When a child is born with a "normal" sized clitoris (less than three-eighths of an inch), (17) that infant will leave the hospital designated as a girl, irrespective of chromosomes; when a child is born with an "adequate" penis (one inch or longer and capable of penetrative sex), that infant will leave the hospital christened a boy. (18) All other infants--those with small penises, large clitorises, or internal and external morphology that conflict--will promptly find themselves on an operating table with doctors debating which course of treatment to commence. (19)
The goal of medical treatment is a simplistic one: to ensure that intersex patients end up functioning heterosexuals. Indeed, medical interventions seeking to "normalize" intersex bodies traditionally breeze past the question of hormones or chromosomes (although these, too, can be misleading) (20) and focus instead on whether a body can penetrate or be penetrated. Thus, when an XY child appears incapable of penetrative sex due to an intersex condition, accidental castration, or penis size, that infant will typically be designated a "girl" (21) and subjected to feminizing procedures--e.g, clitoridectomy, clitoral reduction, vaginoplasty, vaginal dilation, hormonal treatments, and the removal of internal sex organs if present--without regard to other indicators of sexual identity. (22) As the physician who pioneered this approach explains: "The rationale for such a program is simple: it is possible, with surgery and hormonal therapy, to habilitate a baby with a grossly defective penis more effectively as a girl than a boy.... Vaginoplasty permits a normal sex life, whereas phalloplasty would not." (23)
Although the practice of ensuring that newborns function sexually may seem befuddling or even prurient, queer theory helps explain the origins of such interest, as well as the fact that pediatric assignment of sex has only recently been questioned. (24) As Judith Butler remarks:
The mark of gender appears to "qualify" bodies as human bodies; the moment in which an infant becomes humanized is when the question, "is it a boy or girl?" is answered. Those bodily figures who do not fit into either gender fall outside the human, indeed, constitute the domain of the dehumanized and the abject against which the human itself is constituted. (25) However cosmetically successful the process of engineering legible bodies--e.g. those equipped to penetrate or be penetrated--intersex surgery often leaves its targets without the ability to reproduce or experience orgasms and sexual sensation. (26) Studies of pediatric genital surgery have also shown that the results are poor, with infants requiring an average of three to five surgical procedures, or as many as...