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.

6 Responses to “National LGBT Bar Association Panel: Constitutional Gender”

  1. Edith Says:


    This seems very complicated. It seems to me that there are a couple of things to consider here which don’t seem related to the Supreme Court Case cited in the article. The first thing is the issue of “gender autonomy”. I am not sure what that means. Is it the right to identify as the gender one perceives themselves to be? Does one have the right to frivolously identify if one wishes to? Are there objective criteria to determine sex? If there are, exactly what would be considered such under the law? What is it about such criteria that would rely on historic precedent the way something that is as clearly understood as sodomy is?

    I just was looking at this article about the relationship between Eugen Steinach and Harry Benjamin.
    I came to it in a round about way after reading about Adolf Jost and his relationship to Tiergartenstrase 4 which brought to mind Alfred Jost who discovered anti-mullerian hormone. It occurred to me if there are historical precedents regarding sex determination, they are based on scientific ignorance if they were established much before the mid twentieth century. The sexual nature of a human being has only recently reached a point where things like hormones and the “sex changing” surgeries done on laboratory animals by Steinach can be approached with any kind of understanding.

    This fact has huge but different implications for transsexual and intersex people and very complicated implications for those who fall somewhere in between intersex and transsexual, which in the future might be confirmed not to be all that in between for any person who is not frivolously transsexual, transgender or otherwise frivolous where self definition is concerned. That would seem to present a situation where a person would not be carrying out an act, such as sodomy, or even anything similar to any kind of act. It seems the issue would be a matter of defining in an accurate way, based on current scientific understanding, exactly what a person is or whether it is actually even possible to be accurate when defining the sex of a person.

    Altering one’s body does involve action on ones part. How much right someone has to alter ones body seems to be an entirely different problem, however, than committing a sex act. The Roe vs Wade decision seems to be more applicable where the right to make decisions over how someone should be allowed to care for their bodies.

    Of course it has been discussed very often whether one has a right to amputate a limb. However suppressed the science may be to prove that the motivation for a person who is transsexual has nothing to do with a body integrity disorder, I think there is plenty available to make the case that it just as much a corrective surgery as having surgery for a deviated septum is.

    I do not think it would take to much research to confirm the scale on which non consensual genital alterations have have been made or where surgeries and hormone treatments have been performed in which the patient’s parents have made the decision or the patient has been poorly informed. When it is so well understood by the medical community what can be accomplished by such treatments, why should the court assume that a well informed candidate for genital and other surgeries with hormone treatments, should not be able to determine quality of life considerations for themselves. Not all genital surgeries and hormone treatments, not generally considered to be transsexual surgeries, are done to enhance one’s reproductive capabilities, currently.

    I don’t know if even Roe vs Wade applies in the case of transsexual people. The decision to be made about what kind kind of body someone is best suited to live in only involves the person living in that body. There are no questions about when a fetus becomes a person. The only question seems to be a medical one, which is whether one has a right to medical treatment and to make the decision for themselves about what is best for them. Treatments for transsexuals have only been available since the middle of the twentieth century. The precedents only go back that far.

    Getting back to defining sex, is it possible that the courts would actually use precedents going back to a time when people thought the world was flat or would recent scientific discoveries shed the kind of light necessary to understand just how difficult it is going to be to define who is what in order to be just to the people being defined?

  2. Zoe Brain Says:

    “Getting back to defining sex, is it possible that the courts would actually use precedents going back to a time when people thought the world was flat…”

    Yes. As did the Texas 6th circuit of appeals, for example. As have many other courts.

    “…or would recent scientific discoveries shed the kind of light necessary to understand just how difficult it is going to be to define who is what in order to be just to the people being defined?”

    You mean as the Full Bench of the Australian Family Court did back in 2003, in the In Re Kevin decisions?

    At paragraph [136]: ‘I agree with Ms Wallbank that in the present context the word “man” should be given its ordinary contemporary meaning. In determining that meaning, it is relevant to have regard to many things that were the subject of evidence and submissions. They include the context of the legislation, the body of case law on the meaning of “man” and similar words, the purpose of the legislation, and the current legal, social and medical environment. These matters are considered in the course of the judgment. I believe that this approach is in accordance with common sense, principles of statutory interpretation, and with all or virtually all of the authorities in which the issue of sexual identity has arisen. As Professor Gooren and a colleague put it:-

    “There should be no escape for medical and legal authorities that these definitions ought to be corrected and updated when new information becomes available, particularly when our outdated definitions bring suffering to some of our fellow human beings”.’

    A decision that was not followed in the Kantaras appeal though. So while it’s certainly possible, it’s equally possible that the various Catholic Supremes would not go with this Science nonsense about a round Earth, and follow the common-sense view that the Earth is flat, as everyone knows.

    I think it’s worth a punt: because, like Dredd Scott, a bad decision won’t make the existing situation appreciably worse, and is likely to collapse under its own weight of obvious stupidity, as Ormrod’s decision did in Corbett vs Corbett. OK, it took 30 years…. cxomparable with Dredd Scott there too…

  3. Edith Says:

    Hi Zoe,

    I don’t know how the word “just” translates into other languages but it has often seemed to me that it is probably one of the most abused words in the English language, as in “‘just’ do this and ‘just’ do that.” When it comes to court decisions, the word gets even more complicated. I am not any kind of a lawyer. I am vaguely aware of re: Kevin and all the other decisions you mention. I think Katrina Rose wrote about various U S court decisions in a Deakin Review article she posted to the GID forum last year. I did take the time to read that.

    “Gender Autonomy” is defined in Weiss’ presentation. I just wonder if that is an issue for transsexual people. I also have heard people say on occasion that transsexualism is not a matter of “volition”. Anyone born with the variation could tell you that is not. It has little to do with choosing to behave in a certain manner. Once treatment has been performed it produces irreversible sexual changes to a person. I don’t see what choosing to have a sexual relationship with someone else has to do with that.

    I thought of Dredd Scott when I wrote what I did last night. The Fourteenth Amendment to the U S Constitution is mentioned in the Weiss paper in relation to sodomy. I don’t really understand the Due Process Clause. I do understand the Dredd Scott decision was about property rights. I wonder about Dredd Scott a lot in relation to things like drug testing, which I believe involves control over one’s body and whether the state has a right to enter it through invasive procedures. I can see how that might be related to entering someone’s home to determine how people are behaving in it. That is about regulating behavior, however.

    It seems there are at least a couple of issues involved. One is how sex is to be defined which is proving to be very complicated as regards women in athletic competition. There are also many people who have had transsexual surgeries that are irreversible who will present as many difficulties as far as rendering decisions that are just. I don’t think privacy rights are involved in determining what someone’s nature is.

    Privacy rights seem to me to be involved in what an individual should be allowed to do with their own body, however. It seems to me, though, the surgery issue is more akin to a a woman’s right to choose than it is to someone’s right to commit a sex act in the privacy of their home.

    I don’t know. I won’t pretend to being very well educated. I do think I understand well enough to question just what sex I am to be defined as has to do with prohibited sexual behavior.

  4. Zoe Brain Says:

    Here’s the existing situation. Judge for yourself whether things could be much worse:

    Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.

    I’m not technically Trans, I’m Intersexed.

    In the country I reside in, I could only marry a man, as same-sex marriage is absolutely forbidden.

    In the country of my birth, I could only marry a woman, as same-sex marriage is absolutely forbidden there too. On the other hand, a Transgendered woman with male genitalia and no desire to change that can be legally female there, and thus only permitted to marry a man.

    The situation both nationally in the USA, and Internationally, is a mess. You don’t have to be a legal scholar to see that.

  5. Edith Says:

    The short answer Zoe,

    I was born in Tennessee. I live in Rhode Island. I may be slightly better off than you. I could travel to Massachusetts a short distance away and marry a woman and it would be recognized here. I still don’t know how not being able to have my B C corrected would play into things if I moved to Tennessee if I married a man in Rhode Island. I will definitely concede there could be much I am missing in Jillian Weiss’ argument, or that I simply don’t understand.

    I have thought it over, however. I simply have questions about Weiss’ approach. Maybe I don’t understand but if I were to say I am a rocket scientist would that make me one? Also, I am uncomfortable with the notion that having genital to genital sex with a man would be comparable to having anal sex in violation of the anti sodomy law that was struck down, which is how I am reading the implications of what Weiss is proposing, if I understand what she is saying correctly. I am strongly opposed to anti “sodomy” statutes but I think it is a separate issue and should be pursued that way.

    As far as intersex goes, the way I understand things is that it is not much easier to determine who is and who isn’t than it is trying to determine who is female and who is male.

    I have to go deal with the state Health Department, now, and haggle over requirements for my lead renovator’s license. Believe me, I know about the law, corruption, noble ideas and unintended consequences.

  6. Edith Says:

    O K Zoe,

    I see you have visited this issue before:

    >>I’d settle for a SCOTUS definition of male and female.
    Hopefully not one in the spirit of Dredd Scott.
    Zoe Brain | March 22, 2009 2:39 AM<<

    It has been a long night of reading about judicial review, substantive due process, rational-basis scrutiny, stare decisis, obiter dicta, Dred Scott, the Magna Carta . . . I'm still wondering about gender autonomy. Something tells me my gut instincts are probably correct even if my understanding is anemic.

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