Transgendered in Alaska: Navigating the Changing Legal Landscape for Change in Gender Petitions

• Publication year: 2009

§ 26 Alaska L. Rev. 239. TRANSGENDERED IN ALASKA: NAVIGATING THE CHANGING LEGAL LANDSCAPE FOR CHANGE IN GENDER PETITIONS

Alaska Law Review
Volume 26, No. 2, December 2009
Cited: 26 Alaska L. Rev. 239

TRANSGENDERED IN ALASKA: NAVIGATING THE CHANGING LEGAL LANDSCAPE FOR CHANGE OF GENDER PETITIONS

Leslie Dubois-Need and Amber Kingery ^{[*] [**]}

Abstract

Over the past several decades, the law has evolved considerably in the area of transgender rights. In this Article, the Authors introduce the legal issues surrounding legal change of gender for transsexual individuals, looking to current social science, past case law, and general constitutional principles for guidance. The Authors also examine the political and practical implications of a proposed regime for change of gender petitions for transsexuals in Alaska.

Table of Contents

Introduction................................................................................................240

I. Petitions for Gender Change: An Overview.............................243

A. Terminology...............................................................................243

B. Jane's Story..................................................................................244

II. A Divided Country: Competing Policies.....................................245

A. Differing State Policies..............................................................245

B. Heilig, A Guiding Light?...........................................................247

C. Applying Heilig to Jane.............................................................248

D. SRS Requirements May Violate Public Policy........................249

III. Majority Rule and Minority Rights............................................252

A. The Current Political Climate in Alaska.................................252

B. The Role of the Court................................................................253

IV. The Federal and Alaska Constitutions....................................254

A. Equal Protection.........................................................................255

B. Due Process and Privacy...........................................................260

C. Due Process: Liberty and the Right to Employment.............265

V. Practical Realities..........................................................................267

A. Transsexuals and Marriage......................................................267

B. On the Horizon: REAL ID.........................................................269

Conclusion...................................................................................................270

Introduction

In Alaska, as in many states, courts are seeing an increased number of petitions for change of gender. ^[1] These petitions are similar to the routine change of name petitions courts have seen for years, yet they carry with them a tremendous potential for political controversy. ^[2] At the moment, Alaska's trial courts have little guidance as to how to rule on these petitions. As a result, some petitions have been denied outright, while others have been considered but with inconsistent legal standards. This Article was written with an eye toward helping Alaska's courts to understand the issues behind the controversy, to process the petitions in a manner consistent with state precedent, and to explore the practical and legal effects of such decisions.

Most people take for granted the privilege of having legal identification that matches the gender that they present to the world. When most individuals travel by airplane, purchase alcohol, vote, or apply for a job, bank account, or apartment rental, they are not treated with mistrust because their identification documents indicate a mismatch between the gender they were legally assigned at birth and the one they live as an adult. Not everyone shares this privilege. Having identification that matches lived gender is "incredibly vital[,] as one's legal gender designation has the potential to impact many areas of life: the ability to marry, the ability to travel, the ability to inherit, insurance coverage, one's enrollment in the draft, where one might be incarcerated, and more." ^[3] For many transgender individuals, the only way to obtain identification that matches their lived gender is through a complete surgical reconstruction of their genitals, which is collectively referred to as sexual reassignment surgery (SRS). These surgeries carry risks, are expensive, and often require extended recovery periods. ^[4]

The decision each state has to make regarding the procedure for obtaining a legal gender change has been and will continue to be informed by impassioned stances on both sides of the argument. As with any civil rights issue, the debate centers on the pull between individual human rights and society's sense of social stability and order. On the one hand, "[i]f a person does not have identification that accurately reflects his or her social gender, that person is put in a position of potential danger on a daily basis and may be forced to live on society's margins because of an inability to obtain gainful employment, credit, or bank accounts." ^[5] On the other hand, most of us view gender as one of the salient categories which we use to structure and make sense of our own identities and our interactions with each other. Social categories are only salient, however, to the extent they have garnered social consensus. Thus, many people are uncomfortable with the fact that gender is not universally perceived as a fixed characteristic. For a state to adopt laws that reflect a perception of gender as something that is changeable would be to undermine a pillar upon which many have constructed their worldview. When the debate is framed in this way, it is easy to see why considerable controversy exists regarding the rights and liberties of transgender individuals.

Alaska's courts and lawmakers will have to decide where they stand on the continuum of individual rights. Where to draw the line is rarely an easy decision. The public can make its view known through voter initiatives and lobbying. ^[6] The Alaskan judiciary, however, is in the interesting position of being the interpreter of what is arguably the most fiercely individual-rights-protective constitution of any in the united States. Alaskan jurisprudence, like the historical sentiment in the state at large, has long been "grounded upon such basic values as the preservation of maximum individual choice, protection of minority sentiments, and appreciation for divergent lifestyles." ^[7] As this Article will show, Alaskan precedent suggests that it is appropriate for courts to require some showing of a petitioner's intention to live permanently as the desired gender before approving a change of gender petition. ^[8] That precedent further suggests, however, that a requirement of certain sexual reassignment surgeries is not an appropriate legal standard for Alaskan courts to apply. ^[9]

Over the past several decades, the law has evolved considerably in the area of gay, lesbian, bisexual, and transgender (GLBT) rights. ^[10] This Article focuses on the specific legal arguments surrounding legal change of gender for transsexuals and draws from current social science and general constitutional principles for guidance. The courts do not operate in a vacuum, so this Article also explores the practical consequences of the choices to be made regarding the change of gender issue.

I. Petitions for Gender Change: An Overview

As the legal rights of the GLBT community evolve in the law, so do the recognized rights of transsexual individuals. Many states have adopted statutes that allow a person to petition for a change of gender.(fn11)Alaska, in contrast, does not have any specific statute providing a vehicle for official gender change. To show how Alaska's courts have applied the law to transgender Alaskans seeking a court-ordered gender modification, this Article follows one Alaskan gender change petitioner, to whom the Authors have given the pseudonym "Jane."

A. Terminology

Understanding transgender issues requires some familiarity with certain terminology. In our case study, Jane is a transsexual. Transsexuals "identify themselves as transgendered." ^[12] A transgender individual expresses his or her gender "in ways incongruous with the sex ... to which [he or she was] assigned at birth." ^[13] Jane asked for a court order changing her gender as part of her transition from male to female.

The difference between "sex" and "gender" is an important distinction when assessing whether a court should order that a person's gender be legally changed. "Sex" often "denotes anatomical or biological sex," while "gender" refers to "a person's psychosexual individuality or identity." ^[14]

B. Jane's Story ^[15]

Jane was born anatomically male but has always identified more with the female gender. As an adult, she decided to present herself to the world as a woman. Because the gender marker on her legal documents does not match her lived gender, she has had tremendous difficulty with basic activities such as obtaining employment outside of the home, and she runs the risk of being accused of fraud, denied services, humiliated, attacked, and subjected to harassment. ^[16]

Alaska's statute governing amendments to birth certificates is ambiguous as to...