Bringing order out of chaos – a modest proposal
The reason for all this chaos? For transgender people, there are different, confusing and contradictory rules in play for defining who is male, and who is female, and for what purpose.
Medical science has come a long way from the 1960’s, when transgender people were viewed by the scientific establishment as delusional members of their original assigned sex. Today, competent medical authorities recognize that transgender people develop in the womb with brains that follow one sex blueprint, and genital duct systems that follow the other, based on certain genetic predispositions, and that the proper assignment of a sex designation should not require surgical intervention. Indeed, that initial sex on a transgender individual’s birth certificate is itself properly seen as an error in fact, rather than a matter of historical accuracy.
The law usually limps behind the science, changing in a crazy patchwork as courts and legislatures in some jurisdictions become more enlightened, while others become mired in pseudo-science mixed with misinterpretations of religious texts.
Transgender people as a class are perhaps the most disadvantaged and discriminated-against class of people in the United States, according to the recently compiled study, Injustice at Every Turn, published by a group of organizations during the 2011 Creating Change Conference.
While the current lawsuits challenging birth certificate regulations in New York City represent one approach toward improving one small aspect of the situation, a combined federal and state legislative approach could go far toward making the rules more consistent across the board.
A few years ago, the British Parliament adopted a Gender Recognition Act which provided a path for transgender people to correct their identity documentation. In the United States, the passport rules adopted by the State Department in 2010 represent the current medical understanding of transgender people, placing the designation of sex in the hands of the individual and her or his physician.
Social Security, immigration, the military and other federal agencies have outdated regulations that require revision. A civil rights law clarification to include transgender people under the definition of sex would insure more consistency in future federal court decisions.
While the Americans with Disabilities Act appears to exclude transgender people, there is an exception to the statutory exclusion if the gender issue is biologically based – and the modern medical understanding of brain development indicates that this is indeed the case.
In addition to cleaning up federal laws, regulations and policies that deal with transgender people, a Model Gender Recognition Statute, one that treats transgender people fairly, should be drafted by a national commission on uniform laws, and recommended to the states for adoption, much as the Uniform Commercial Code and other state statutes have created some uniformity across state lines for commercial transactions.
It may require a statutory and regulatory approach, as well as a litigation approach, on federal, state and even municipal levels, to bring an eventual semblance of order out of the chaos at the edges of sex and gender differences. It will take time, but it is long past time to get the law in line with the science.
Joann Prinzivalli is a lawyer, a transgender woman, the state director of the New York Transgender Rights Organization, and one of the plaintiffs in the current group of lawsuits challenging New York City’s birth certificate regulations.
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