National LGBT Bar Association Panel: Constitutional Gender

Reposted with the Pemission of Dr. Jillian Weiss


Posted Sept. 11

The National LGBT Bar Association Conference begins today. Much interesting grist for the mill here.

I will be presenting in a panel on constitutional rights to gender autonomy today, along with three highly-regarded law professors whose work in this area is very interesting.

My presentation will center on the right to privacy, and the full-length article will be coming out this Fall in the Touro Journal of Gender, Race and Ethnicity. The title of the article is “Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas.”

Others will discuss rights to due process, equal protection, the First Amendment and question whether positing “a right to gender autonomy” is the right question in the first place.

In a nutshell, my opinion is that there is a constellation of issues that comprise a potential “right to gender autonomy,” and that the “right to privacy” is the wellspring.

There are two strands of constitutional jurisprudence from which this right develops: the first is a right of self-determination of gender, based on privacy cases that promoted self-determination of private decision-making of important life choices, and the other is a right of self-identification of gender, based on other privacy cases that promoted privacy protection of sensitive information .

“The right to gender autonomy” may therefore be defined as the right of self-determination of one’s gender, free from state control, and the right to self-identify as that gender, free from state contradiction.

However, there is a problem with this idea: it’s not clear how it squares with the US Supreme Court’s landmark 2003 decision in Lawrence v. Texas, which found that the right to privacy protects gay relationships from being marked as criminal by the state. That case has been taken by many as meaning that the right to privacy hinges on the relationship aspect, which marks a “fundamental” right. Since being transgender involves no relationship aspect, upon what is the state intruding that would be considered private?

I started looking at this issue in my 2001 law review article, in which I suggested that there is a fundamental right to “gender autonomy” that protects people with transgender and transsexual identity. I grounded this in what was then called the “right to privacy”, an outgrowth of substantive due process. There have been significant developments in the law since then, and many commentators have discussed the possibility of a right to gender autonomy.

This article looks to review the work that has been done since that time on the issue of substantive due process as it has been discussed in regard to the right of gender autonomy, and also focusing specifically on how the groundbreaking, but widely misunderstood, 2003 decision in Lawrence v. Texas3, impacts this putative right to gender autonomy.

I suggest that my 2001 argument in favor of gender autonomy as a fundamental right, while potentially valid, has been devitalized by Lawrence. Instead, Lawrence has made a “rational basis” standard of review not only possible for the right of gender autonomy, but much stronger than an argument in favor of a “fundamental right” approach, or any attempt to mix the two.

This “heightened” rational basis, an approach that has previously been seen in equal protection jurisprudence as “minimal scrutiny with bite,” clarifies the ambiguities and opacity that have plagued interpretation of Lawrence. It sidesteps the problems created by a judiciary that is looking to avoid recognition of new “fundamental rights.”

If this is correct, then the emphasis of advocate of gender autonomy should not be on trying to prove the existence of a “fundamental right,” but on trying to identify the putative state interests that can be asserted in favor of gender regulations that refuses to recognize sex reassignment, and explaining how they are either illegitimate or have insufficient rational nexus to the law.

Legal and social advocates for a right of gender autonomy should further pursue detailing the factual record and historical analysis that demonstrates the long history of legal and social gender autonomy.

You can download the materials for the session in a zip file by clicking here.

Rep. Jerry Nadler to unveil DOMA repeal bill Tuesday Rep Barney Frank not among legislation’s co-sponsors

From The Washington Blade

By CHRIS JOHNSON, Washington Blade | Joshua Lynsen | Sep 11, 2:02 PM
UPDATED: Sep 11, 4:58 PM

A New York congressman is set to introduce a bill next week that would overturn a law preventing the federal government from recognizing same-sex marriages, but the longest-serving openly gay member of Congress isn’t a co-sponsor of the bill.

Rep. Jerry Nadler (D-N.Y.) intends Tuesday to submit legislation that would repeal the Defense of Marriage Act and answer questions at a Capitol Hill press conference. The event is set for 11 a.m. at the House Triangle, near the southern steps of the Capitol Building.

Nadler first told the Bay Area Reporter that he intended to introduce a repeal bill and that the legislation would only affect same-sex marriages — not civil unions or domestic partnerships.

A “certainty provision” in the bill, Nadler said, would allow gay couples living in a state where marriage is not recognized to go to another state to marry and qualify for federal benefits when they return home.

Nadler chairs the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights & Civil Liberties, which has jurisdiction over DOMA.

Gay Reps. Tammy Baldwin (D-Wis.) and Jared Polis (D-Colo.) will co-sponsor the legislation, but Rep. Barney Frank (D-Mass.) hasn’t signed on in support.

Frank said in an interview Friday with the Blade that he’s not a co-sponsor of the legislation because he has a “strategic difference” with people supporting the repeal legislation.

“It’s not anything that’s achievable in the near term,” he said. “I think getting [the Employment Non-Discrimination Act], a repeal of ‘Don’t Ask, Don’t Tell,’ and full domestic partner benefits for federal employees will take up all of what we can do and maybe more in this Congress.”

Frank also said that advocacy for the “certainty provision,” as described by Nadler, would create “political problems” in Congress.

“The provision that says you can take your benefits as you travel, I think, will stir up unnecessary opposition with regard to the question of are you trying to export it to other states,” he said. “If we had a chance to pass that, it would be a different story, but I don’t think it’s a good idea to rekindle that debate when there’s no chance of passage in the near term.”

Nadler defended the legislation in a statement, saying that claims made by repeal opponents shouldn’t prevent the bill’s introduction.

“Mr. Frank knows better than anyone that our opponents will falsely claim that any DOMA repeal bill ‘exports marriage’ in an effort to generate fear and misunderstanding,” Nadler said. “But the dishonest tactics of our opponents should not stop us from aggressively pushing to end this horrific discrimination now, as is the consensus of the nation’s top LGBT groups who all support this approach.”

Nadler emphasized that the proposed bill wouldn’t force any state to marry gay couples or recognize same-sex couples under state law.

“Our bill allows states to continue deciding those questions, while ensuring uniform access to critically important federal responsibilities and rights that hinge on marriage and upon which all married couples should be able to rely,” he said.

The Human Rights Campaign, which is lobbying for DOMA repeal, declined to comment on Frank’s statements.

Frank said the Gay & Lesbian Advocates & Defenders lawsuit against DOMA, Gill v. Office of Personnel Management, stands a better shot of overturning DOMA than congressional action. The lawsuit specifically targets the portion of DOMA that prevents the federal government from recognizing same-sex marriages.

“That’s very thoughtful, very well done,” Frank said. “That’s the way we’ll win this.”

In the Senate, activists are lobbying Sen. Russ Feingold (D-Wis.) to introduce a companion bill that would overturn the law. In a July interview with the Blade, Allison Herwitt, HRC’s legislative director, said Feingold is “the senator that has been … liaising most with us and the House people” on the issue.

A Feingold spokesperson didn’t immediately respond to a request to comment on whether the senator would introduce a repeal bill concurrently with Nadler.

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New sex change regulation in Thailand

AsiaOne, Singapore

Sat, Sep 12, 2009

The Nation/Asia News Network

By Pongphon Sarnsamak

>From November 29, the Medical Council of Thailand will strictly enforce new regulations allowing only those transgendered people aged over 18 to undergo a sex-change operation, secretary general Dr Samphan Komrit said yesterday

Transgendered people aged 18 to 20 must have parental consent, while those over 20 can decide for themselves.

Transgendered people must also consult a psychiatrist, live as a woman for a year and receive hormone therapy before being allowed to undergo a sexchange operation.

Surgeons who provide such operations must be registered with the Medical Council and treat any complications that may occur following surgery.

Samphan said these regulations would raise the standard of sex change operations.

He said surgeons violating the regulations would face warnings and even revocation of their medical licence.

Transgender Women of Thailand chairperson Yollada Suanyot expressed satisfaction with the new regulations but said relevant agencies, such as the Interior, Foreign and Justice ministries, should revise laws to allow transgendered people to change their gender title from Mr to Miss.

Yollada said changing their gender title after undergoing a sex change would help transgendered people live with dignity.

“It would be good if we could change from being a Mr to a Miss, because then we could proudly assert we’re a women. We’d no longer have to explain we’re a ‘ladyboy’ when anyone looks at our ID or passport,” she said. “We want to live with dignity, the same as anyone else.”

Office of the AttorneyGeneral investigator Sermkiat Woradit suggested transgendered people band together to request the independent National Human Rights Commission to help revise all laws involving them, be it civil, criminal or family law.

Samphan said he backed this idea and that relevant agencies should issue special laws for “third sex” citizens.

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198402868E. All rights reserved.

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