The (mis)categorization of sex in Anglo-American cases of transsexual marriage.

AuthorParsi, John

The United States' promise to establish equality for all has been challenged by post-operative transsexuals seeking recognition in their acquired sex. The birth certificate is the legal gateway to changing other legal documents; but the process for changing the birth certificate varies widely from state to state. This lack of national uniformity makes post-operative transsexuals" recognition of their acquired sex complicated at best and impossible at worst.

This Note details the legal progression from non-recognition to recognition of post-operative transsexuals' acquired sex in the United Kingdom and through the European Court of Human Rights. The Note goes on to explore the basis on which rights should be secured domestically for post-operative transsexuals, namely the Due Process Clause of the Fourteenth Amendment. Through an evaluation of the Supreme Court's use of reason-borrowing, this Note provides a means to establish legal recognition for the acquired sex of postoperative transsexuals in the United States.

TABLE OF CONTENTS INTRODUCTION I. STATES IN THE UNITED STATES ARE DIVIDED ON RECOGNITION OF ACQUIRED SEX A. Changing the Sex Listed on Birth Certificates 1. States with a Permissive Statutory or Administrative System 2. States with Prohibitive Statutory Systems 3. States with Neither a Statutory nor Administrative Mechanism B. Recognizing a Change in Sex for the Purpose of Marriage 1. Most Jurisdictions Do Not Recognize the Acquired Sex of Post-Operative Transsexuals 2. The Reasoning Supporting the Recognition of the Acquired Sex of Post-Operative Transsexuals II. THE UNITED KINGDOM AND THE ECHR MODEL: RECOGNIZING TRANSSEXUALS' LEGAL RIGHTS IN THEIR ACQUIRED SEX A. The United Kingdom's Initial Position: Post-Operative Transsexuals Did Not Have the Right to Marry As Members of Their Acquired Sex B. The United Kingdom's Policy Now Recognizes the Acquired Sex of Transsexuals for the Purposes of Marriage III. APPLYING A SEX EQUALITY MODEL EMERGING FROM THE UNITED KINGDOM AND THE ECHR AS A METHOD FOR RESOLVING THE DIVIDED STATE POSITIONS IN THE UNITED STATES A. Precedent for Reason-Borrowing B. Borrowing the ECHR Reasoning on Privacy and Liberty C. Borrowing the ECHR Reasoning on Sex Discrimination D. Borrowing the ECHR Reasoning on the Awareness of an Emergent Treatment of Post-Operative Transsexuals CONCLUSION INTRODUCTION

Ordering systems are omnipresent, and create mechanisms by which to categorize everything. (1) Categories identify and separate groups of people and often carry significant political force. (2) Indeed, the management of these categories, particularly when they convey political and social dimensions, shapes life's opportunities. The category of race is a prime example of what a serious and complex issue categorizing people can be. (3) Before the late 1960s in the United States, race commonly determined citizens' ability to vote, the schools they could attend, and even which water fountains they could drink from. Rationales for categorizing people by race ranged from scientific evidence to common knowledge. (4) Another of these "ordered" categories, one not often critically engaged in daily life, is sex. (5) Sex, in many ways, is the ultimate category for distinguishing and categorizing individuals, because it is seen as a scientific category--not a socially constructed category, but a function of biology. (6)

Even as a "scientific" category, sex is often not clearly delineated. For example, it is estimated that nearly 2 percent of children are born intersex--not belonging entirely to either the male or female sex. (7) Other people are born as a member of one biological sex, but have the identity of the opposite sex--this is known as gender identity disorder. (8)

Gender identity disorder, as classified by the International Statistical Classification of Diseases and Related Health Problems, is a mental disorder defined as:

A desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one's anatomic sex, and a wish to have surgery and hormonal treatment to make one's body as congruent as possible with one's preferred sex. (9) There are two important predicates in the diagnosis of gender identity disorder. First, gender identity disorder is based upon a desire to live as a member of the opposite sex. (10) Thus, the medical community focuses on the congruence between the person's self-identified and biological sexes. Second, after psychological evaluation, doctors often recommend a sex change operation along with hormone therapy. (11) Individuals diagnosed with gender identity disorder are often referred to as transsexuals.

A legal dilemma occurs when post-operative transsexuals attempt to gain legal recognition of their acquired sex. Given the widespread belief that sex is easily categorized and fixed at birth, attaining legal recognition of an acquired sex can be difficult. (12) Particularly contentious is the recognition of sex in legal agreements in which the parties' sex is legally relevant. Of these legal agreements, marriage is the most salient and controversial, as it is of ten limited by law to a partnership between two people of opposite sex. (13)

Currently, states lack uniformity in whether and how they recognize the acquired sex of post-operative transsexuals in both birth certificates and for the purpose of marriage, resulting in sex being determined largely by a person's state of residency. When states fail to recognize transsexuals' acquired sex, individuals' rights are limited. As this Note will argue, these limitations constitute a violation of the Fourteenth Amendment. (14) Throughout the Unit ed Kingdom, (15) in contrast, the law recognizes the acquired sex of postoperative transsexuals for nearly all purposes, including for birth certificates and marriage. This Note will explore the legal hurdles faced in determining the sex of a post-operative transsexual for the purpose of marriage in the Anglo American legal system. Examining the differences between the laws in the United States and the United Kingdom clarifies both the problem of sex categorization and the arguable legal denial of many transsexuals' substantive due process and equal protection rights.

This Note establishes that the United Kingdom's approach, as detailed both in decisions of courts in the United Kingdom and the European Court of Human Rights ("ECHR"), is consistent with U.S. constitutional requirements and provides a reasoning that the United States should borrow in its own consideration of these issues. Part I demonstrates the inconsistent approach to recognizing the acquired sex of post-operative transsexuals for the purpose of marriage in the United States. Part II analyzes the systematic change in legal reasoning in the United Kingdom that eventually led to the recognition of a post-operative transsexual's sex for the purpose of marriage. Part III argues that the sex equality model underpinning the change in the United Kingdom should be imported into the United States to resolve the state court split in favor of recognizing the acquired sex of a post-operative transsexual. Additionally, Part III provides a legal framework for making this change in the United States.


    In the United States, the recognition of a transsexual's acquired sex is currently an issue addressed solely by state law. A birth certificate is the legal record of a person's sex. (16) Therefore, a transsexual must have the sex on his/her birth certificate changed in order to attain legal recognition of an acquired sex. Transsexuals must modify their birth certificates before updating their acquired sex on other legal documents. States have various approaches to recognizing a person's acquired sex. This Part outlines the various approaches taken by states regarding recognition and presents background to furnish the argument developed in Parts II and III. Section A examines the right to change a birth certificate to reflect a sex change and demonstrates that state practices vary dramatically. Section B discusses variations among states' laws regarding the right to marry as a member of an acquired sex.

    1. Changing the Sex Listed on Birth Certificates

      The policies of changing the sex listed on a birth certificate fit into three general approaches. First, there are states with a permissive statutory or administrative approach. There are also states that do not allow changes to the sex listed on a birth certificate. Finally, there are states that do not yet have a set administrative or statutory system for addressing changes to the sex listed on a birth certificate.

      1. States with a Permissive Statutory or Administrative System

        Twenty-eight states have a permissive statutory or administrative policy that provides a mechanism for changing the sex on a birth certificate. Currently, twenty-four states and the District of Columbia statutorily permit changing a birth certificate to recognize a transsexual's acquired sex. (17) These states also allow modification of other official state documents. (18) But most of these states require proof of a sex change operation before permitting the alteration of other legal documents. (19)

        Four other states--Kansas, Maine, Nevada, and New York--have no statutes regarding transsexuals' right to legally change their acquired sex on their birth certificates. (20) Instead, these four states provide an administrative process for the modification of birth certificates, (21) which requires demonstrating a need to change the birth certificate. (22) A post-operative transsexual would likely be able to attain a birth certificate change to recognize the acquired sex by using this process. (23) The problem is that there is no set standard for what "need" entails. For instance, in Kansas the Department of Health and Environment requires medical...

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