Should a trip from Illinois to Tennessee change a woman into a man? Proposal for a Uniform Interstate Sex Reassignment Recognition Act.

• Author: Newlin, Alice

In Illinois, a transgender woman (1) who has had sex reassignment surgery can request an amendment to her birth certificate to change her legally-recognized sex (legal sex) (2) from the sex assigned at birth to one she chooses later in life. (3) Though she was born male, she can become legally female by amending her birth records. She is able to marry a man, adopt a female name, and incorporate her female identity into her legal life. (4) However, were this woman to leave Illinois and enter Tennessee, she would become legally male once again. (5) Though she may have breasts, a vagina, a husband, and an Illinois birth certificate stamped "female," this person would always be considered legally male in Tennessee. Her sexual identity, her marriage, and her physical body become irrelevant. In Tennessee, a person identified as male at birth is male for life.

States traditionally determine their own marriage requirements and issue their own birth certificates. (6) The resulting disparate treatment of transgender people across jurisdictions in the United States has created both practical and constitutional concerns (7) that warrant the implementation of a uniform system for sex reassignment recognition nationally. (8) Individuals are constantly being classified as either male or female, through mechanisms as diverse as employment records, birth records, driver's licenses, passports, restrooms, and interactions with law enforcement. Transgender people may present gender-signifying characteristics or documentation that are contrary or inconsistent, complicating these routine interactions.

What happens, for example, when a male-to-female transgender person chooses to marry a man? A particular state's policy for recognition of her new identity may prevent her from marrying in that state. Or, she may fear that her marriage will not be recognized once she and her husband move to another state. (9) That fear is legitimate. Even when a state does provide a mechanism for changing one's legal sex, the state's chosen procedure may not be entitled to full faith and credit in other states. (10) As the law currently stands, Tennessee will not recognize a marriage contracted in Illinois between a man and a transgender woman, because Tennessee considers this a same-sex marriage. (11) There is very little certainty or security for transgender people, their partners, and their children when they cross state borders into a jurisdiction where such a rule exists. As a transgender person's legal status (and, potentially, the validity of her marriage) varies from state to state, and so too does her ability to recover damages in tort, to receive spousal support after divorce, to gain custody of marital children, or even to marry in the first place. (12)

These difficulties raise a variety of state and federal issues, and the solution that this Article explores and proposes in response is model state legislation. A model or uniform act has several advantages over other potential responses to the problem of systemic disadvantages for transgender people. First, it is not clear that a comprehensive solution to this problem is within the commerce clause powers of Congress. (13) Second, though it takes time for uniform legislation to be adopted in every state, a model code provides useful reference for interpreting existing law and establishing public policy, as a form of persuasive soft law, similar to the Restatements of Law. (14) A model code would also allow states to adapt the legislation to their particular needs, while still keeping the general purpose and scope of the model intact.

A Texas case, Littleton v. Prange, provides an example of the flaws in the current system and suggests the foundation for a model act addressing legal recognition for transgender people in the context of marriage rights. Christie and Jonathon met and married in Kentucky but later moved to Texas to live. (15) During the marriage, the couple conducted themselves as husband and wife. They engaged in sexual intercourse and filed joint tax returns. (16) When Jonathon, who was married previously, fell behind on child support payments to his ex-wife, the Attorney General of Texas required Christie to fulfill his child support obligation as his legal spouse under Texas's community property system. (17) When Jonathon died, Christie attempted to bring a wrongful death claim as his surviving spouse, but was barred by the state court from doing so because she was found to be legally male and as such her marriage to a man was, per se, invalid. (18) Though the state had treated the couple as legally married for years, the court declined to allow Christie to recover damages for her husband's death because Christie had been born male and therefore could not be legally married to another man in Texas. (19) Married couples like Christie and Jonathon cannot freely travel or settle in all fifty states, as they risk invalidating their marriage and forgoing all of the rights that marriage entails. (20)

While at this time there is no recognized constitutional right to change one's legal sex, the lack of an organized system to recognize sex reassignment in the United States has created an unconstitutional deprivation for transgender people. (21) Sex has always been a major factor in assigning rights and privileges to an individual, and uncertainty as to legal sex creates uncertainty as to sex-linked rights. Historically, in the United States, women could not vote, own property, or make contracts to the same extent as men. (22) Though many such restrictions have now fallen away, sex still determines whether one can be drafted, whom one can marry, and to which prison one may be assigned. (23) To complicate matters, many transgender people do not have access to the medical procedures needed to establish a legal sex change in many states, and many choose not to undergo the costly and dangerous surgery because they consider it unnecessary to their sexual identity. These individuals are excluded from the scant legal protections afforded to persons who have undergone sex reassignment procedures. (24) Because no uniform system exists for determining a person's sex at any stage in their sexual transition, a transgender person's status relative to sex-segregated rights and privileges remains ambiguous, especially when traveling from state to state. To protect these rights and privileges, the current assortment of statutes (25) that recognize or modify legal sex must be reformed. This is a matter of urgency, not simply as a form of justice for transgender people who may find themselves in the "wrong" prison, hospital ward, or homeless shelter, but also for courts and administrative agencies that must do the day-to-day work of placing individuals into categories and dealing with inconsistencies. Thus, a person should have the same legal sex in every state, and the procedures for determining and changing legal sex should be uniform, consistent, and reasonable, incorporating up-to-date medical knowledge and humanistic principles of independence and self-determination.

This Article will discuss several theories of sex determination, including various legal frameworks used in case law and medical frameworks suggested by scientific studies that may broaden our understanding of sexual identity and development. Part I.A presents the various standards currently in place for determining, changing, and recognizing a person's sex, noting that the legal standards used by courts may not be consistent with medical knowledge. (26) Part I.B introduces the statutory responses to sex reassignment and explores the troubles a transgender person may encounter in obtaining legal recognition of his or her sex reassignment, as well as the implications of the Full Faith and Credit Clause and the Defense of Marriage Act on state to state recognition of sex reassignment. Part II.A presents the impracticability of continuing to use birth certificates as prima facie evidence of legal sex, and Part II.B analyzes responses to the problem of gender status modification by New York City and the United Kingdom. (27) Finally, in Part II.C, this Article proposes a uniform state statute for recognition of sex reassignment, which would create a seamless system for recognition, amendment, and declaration of a person's legal sex. By balancing the legal and medical theories of sex determination with a humanistic approach that prioritizes respect for self-determination, it is possible to create a two-pronged system of legal recognition for sex reassignment that is accessible, fair, and just.

1. SCIENCE, CASE LAW, AND STATUTES: DISPARATE APPROACHES TO TRANSGENDER ISSUES

   Sex determination is a troublesome and complex issue in part because it seems so simple at first glance. In most delivery rooms, the question of "boy or girl" is not met with deliberation or debate. (28) Sex is usually easily determined at birth--and later in life--by simply looking at external physical characteristics. (29) New parents would be confused and concerned if they asked the doctor whether the baby was a boy or a girl, and she replied that she did not know. However, as the topics of intersex and transgender have become less taboo to recognize and discuss, it has become clearer that a person's sex cannot always be determined just by "looking."

   Sex and gender experts now consider eight factors when they make a determination of sex. (30) The factors include chromosomal sex, gonads, internal morphology, external morphology, hormones, phenotype, assigned sex, and self-identity. (31) Although in most cases these factors all lead to the same conclusion, in a significant fraction of the population they present contradictions that must somehow be resolved. (32) There are several theories of sex determination permeating the judicial, medical, and statutory systems affecting transgender individuals, (33) but most courts have given preference to one...