GENITAL EXCEPTIONALISM HAS NO PLACE IN THE LAW: IMPROVING TRANSGENDER AND INTERSEX RIGHTS IN THE 21ST CENTURY.

• Author: Walker, Lindsey M.

INTRODUCTION

Sex exceptionalism--also referred to as sexuality or sexual exceptionalism--is a concept that has recently been developed and explored in feminist legal scholarship. Sex exceptionalism "refers to the way our culture, including law, treats 'sex differently [than] other activities,'" often in a way that is extreme--either extremely well or extremely poorly. (1) Over the past decade, legal scholars have pointed to sex exceptionalism to explain why courts refuse to enforce contracts involving sexual obligations, (2) why intellectual property law treats sexual content with unjust disfavor, (3) and why the law declines to hold employers vicariously liable for sexual abuse committed by employees. (4)

Although sex exceptionalism and its effects have received a fair amount of academic discussion, the notion of genital exceptionalism remains relatively unexplored in the scholarly world. (5) This Note defines genital exceptionalism as the importance that society places on genitalia as the determinative variable in establishing an individual's gender, regardless of the individual's identity and gender performance. So understood, genital exceptionalism assumes a strict binary view of gender and insists that all genitalia must conform to what society deems "normal" for a male or a female. If a person identifies as a woman, dresses as a woman, and tells the world that she is a woman, genital exceptionalism would say she is still a male so long as she has male genitalia. Genital exceptionalism has no room for those who identify with a gender outside the male-female binary, such as genderqueer. (6) Much like sex exceptionalism, which views non-normative sex and sexuality with disdain, genital exceptionalism treats non-normative genitalia with contempt. Thus, genitalia that are outside of the norm--either because they are ambiguous, as is the case for intersex people, (7) or because they are the genitalia society associates with the sex opposite of that which the person is presenting--is bad and wrong, and should be discouraged by the law.

The reverence society pays to normative genitalia through genital exceptionalism is notable even among the cisgender populations. For example, vaginal cosmetic surgery, which is typically aimed at tightening the vaginal muscles and/or altering the shape and size of the labia, originally targeted older populations and those who had given birth. (8) Recently, however, it has become popular among teenagers. (9) In fact, between 2015 and 2016 labiaplasty procedures performed worldwide increased by 45 percent. (10) In a somewhat similar vein, (25) percent of American men say they would pursue penis enlargement procedures if money were no object. (11)

Although genital exceptionalism is pervasive among all populations, this Note argues that when genital exceptionalism underlies decisions in law and policy-making, the transgendcr and intersex communities suffer the most. This Note will first highlight three areas of the law that best example the negative, destructive aspects of genital exceptionalism: (1) in laws that require transgender individuals to use the public restroom designated for persons with the genitalia possessed by the individual at birth, regardless of the individual's actual gender identity; (2) in laws that require transgender individuals to undergo sex reassignment surgery in order to change their gender marker on identity documents, such as driver's licenses or birth certificates; and (3) in the absence of legal prohibitions on performing genital-normalizing surgery on infant and minor intersex children. This Note will then argue that when genital exceptionalism is given a place in the U.S. legal system, the natural and unavoidable consequences are violations of constitutional rights, emotional and physical harm, and economic losses that society as a whole must bear.

Finally, this Note will propose the following solution: because genital exceptionalism is the root of much of the harm that is inflicted upon both the transgender and intersex communities in the United States, it would be beneficial for activists from each of the two groups to join forces in advancing their causes. These activists should work together to educate lawmakers and members of the judiciary on genital exceptionalism and why it is so harmful. Ultimately, the goal of these activists should be to alter the U.S. legal framework so that it no longer promotes genital exceptionalism, by (1) overturning the discriminatory transgender bathroom laws; (2) no longer requiring proof of sex reassignment surgery in order to change the gender markers on identity documents; and (3) passing legislation that forbids the performance of genital-normalizing surgery on children before they are legally capable of providing consent.

1. HISTORY

   1. Transgender Bathroom Laws

      The explosive debate over the use of public restrooms by transgender individuals traces back to 1887, when Massachusetts passed the first law in the United States segregating workplace restrooms by sex. (12) In the thirty years that followed, every other state in the country passed similar laws. (13) However, these laws were not passed because of the "basic biological differences" between men and women, but rather for the purpose of "protecting" women who were entering workplaces and the public sphere for the first time in history. (14) Because lawmakers considered women to be the weaker sex, women-only bathrooms were designed to create a "protected haven in this dangerous public realm." (15)

      Nearly one hundred years after the last state in the country passed a law segregating restrooms by sex, (16) North Carolina passed the first law in the country that required transgender individuals to use the public restroom that corresponds to the biological sex assigned to them at birth. (17) The bill effectively overturned any local ordinances in the state that allowed transgender individuals to use the bathroom of their choice, regardless of the appearance of their genitalia. (18) The bill was met with extraordinary and swift backlash, (19) as businesses pulled out of the state and protests erupted. (20) Almost exactly one year later, the North Carolina legislature repealed portions of the bill that prohibited transgender individuals from using the bathroom that corresponds with their gender identity. (21) However, the state left in place provisions that prevented cities within the state from passing their own anti-discrimination legislation with respect to transgender individuals until 2020. (22)

      Despite its disastrous consequences for the state's image and reputation, North Carolina's so-called "bathroom bill" paved the way for nearly two dozen other states to follow suit; as of April 2019, discriminatory legislation that limits access to public restrooms based on how one's genitalia appeared at birth has been introduced in twenty states. (23) On the other end of the spectrum, eighteen states and the District of Columbia have legislation in place that protects the rights of transgender individuals in places of public accommodation. (24)

      Proponents of bathroom bills typically argue that such legislation is necessary to prevent children and women from being sexually assaulted or exposed to opposite-sex genitalia while using restroom facilities. (25) South Dakota State Senator David Omdahl made headlines in 2016 when he described bathroom bills as being aimed at "protecting the kids" from transgender individuals who are "so twisted" and in need of mental health treatment. (26) Similarly, Virginia lawmaker Robert G. Marshall supported the introduction of a bathroom bill in his state, describing the legislation as necessary because "[s]ome guys will use anything to make a move on some teenage girls or women." (27) In the months leading up to a 2018 statewide referendum in Massachusetts on whether to keep nondiscrimination measures for transgender indi viduals, opponents of the legislation ran an ad designed to stoke fear for women's lives. (28) In the thirty-second ad, a blonde-haired adolescent girl enters a women's locker room. (29) As she stands in front of a locker and begins removing her shirt, a man dressed in jeans and a hoodie watches her through a crack in the bathroom stall. (30) She looks up and gasps in horror as he slowly opens the stall door before the screen ominously cuts to black. (31)

      Arguments from individuals like Senator Omdahl and the organization behind the Massachusetts ad campaign are premised on the idea that transgender individuals are prone to sexual deviancy, mental illness, and violence. However, not only does this premise lack support, it has been entirely disproven by scientific research. (32) The most recent comprehensive study on the topic revealed there is no connection between transgender individuals using the bathroom of their choice and crime in bathrooms. (33) The study collected data in Massachusetts before and after the state passed a nondiscrimination law (34) that protects the rights of transgender people in a variety of spheres, including public restrooms. (35) Amira Hasenbush, the study's lead author, found incidents of women and children being attacked in public restrooms to be "rare and unrelated to the laws" that prohibit discrimination in public restrooms. (36)

      In fact, it is actually transgender--not cisgender--individuals who report experiencing harrowing encounters when trying to use public restrooms. A 2013 survey conducted by the Williams Institute at UCLA School of Law found that 70 percent of transgender respondents had been "denied access, verbally harassed, or physically assaulted in public restrooms." (37) Thus! bathroom bills only serve to inflict harm on the transgender community without providing any benefit for society.

   2. Legislation Requiring Proof of Sex Reassignment Surgery to Change Gender Marker on Identity Documents

      When transgender individuals go through the process of...