We’re Asking the Supreme Court to End Bi Erasure

A group of Bisexual Lawyers and Law Professors called “BiLaw,” of which I am a founding member, just submitted an Amicus Brief in the 4 marriage cases (click here to read the brief). I wrote the initial draft of the second section based on my paper and article published here previously. Professor Nancy Marcus wrote the first section, asking the Supreme Court to end bi erasure.

Two major points of the brief:
1) Bisexuals are not reflected in litigation for the rights of lesbian, gay, and bisexual people. This brief urges the court to reverse this trend of bisexual exclusion.
2) Inclusion of bisexuals strengthens the argument that marriage bans should be subject to heightened scrutiny as sex discrimination.


How I’m Watching For SCOTUS Decision on Marriage

SCOTUSIt is 6:30am PST on Monday June 24. Today, again, we are waiting with bated breath for the decisions from SCOTUS (“Supreme Court Of The United States,” for the uninitiated) on the Windsor and Perry cases. They may be announced today at 7am PST (10am Eastern). Or they may be announced later this week on Thursday or another date added by the court.

Here is how I’m watching:

I have one browser window open to http://www.scotusblog.com/. It is a live up to the second blog posted from the gallery of the Supreme Court on the decisions as they are announced.

I have another browser window open to http://www.supremecourt.gov/. Within seconds of the blog announcing an opinion is being released today I can hit reload and a link to an electronic version of the decision will be posted there.

Here is the blog post I wrote last Thursday about how it feels to wait for this: https://tobyshome.wordpress.com/2013/06/20/supreme-court-ruling-on-marriage-it-could-be-today/

Enjoy the excitement and watch with me!!!

Supreme Court Ruling on Marriage – It Could Be Today

This morning at 6:30am Pacific time we might find out the SCOTUS rulings on DOMA (Windsor v. ) and Prop 8 (Perry v.) … or not. I just woke up from a dream that I overslept, and when I’d awoken everyone else knew. I walked out into the street and tried to tell from the parades in the street what the ruling was. They weren’t celebratory. They weren’t devastated. They were hopeful. And that’s how I realized (in the dream) that all we knew at 6:30am was that we would find out that day. But we might really know the answer at 6:30am.

It’s 4:15. My dream woke me up at 3:45am and I finally realized only blogging about the marriage cases would get me back to sleep. Waiting for these rulings is not doing wonders for my sleep. Honestly, neither is the fact that I had a job interview yesterday, my house is going on the market this week, and I have to respond to some questions about my 2011 taxes in the next 7 days. There’s other stuff too. Kid’s health insurance issues. The usual stuff people have to deal with in life. I guess that’s the point, isn’t it? All of us have to deal with supporting our families, surviving the housing crisis, paying taxes, getting health care for our kids. But only those of us with same-sex spouses have to ALSO worry about whether our marriages will be validated under state and/or federal law, which, by the way, also affects our jobs, housing, taxes, and kids’ health care, among other things.

It’s been a long ten years.

WeddingOn July 19, 2003 I married my wife. Beautiful ceremony. You should have been there. But we only got a few rights under California Registered Domestic Partnership. That pissed me off enough to get active. I hadn’t been that active before, not in marriage equality. Not until I fell in love with the woman of my dreams and realized we were getting the short end of the stick compared to if, say, I had fallen in love with and married the man of my dreams. I’m bisexual, it could have happened. But it didn’t. The person of my dreams was a woman. So everything was that much harder.

The Defense of Marriage Act (DOMA) had been passed by Congress in 1996, keeping the US government or other states from being required to recognize any same-sex marriage that a state might allow. Not too long after our wedding Massachusetts became the first state to allow same-sex marriage. I’m from Boston. Unfortunately my wife was not about to move to Massachusetts. Something about shoveling snow. It’s not just that you can’t “take California out of the girl.” You really can’t take the girl out of California.

Fast forward 10 years. The California legislature had passed marriage bills several times only to have them vetoed by the governor. The California supreme court had ruled for marriage equality, thousands of couples got legally married (including my wife and me, on our 5 year anniversary), and then the voters passed Proposition 8 which forbid any more marriages while leaving those that already occurred legally intact. Not that our neighbors believed that. They all insisted that since Prop 8 had passed we weren’t really married. Not the law, but definitely the perception of many of our neighbors.

You can see where I’m going with this. Not only are Nine Very Important People about to decide whether the Federal Government has to treat my family as a real family, they are also about to decide whether the rest of California will believe our marriage really exists. And more importantly whether other same-sex couples will be allowed to marry legally in California. I really like going to weddings, and this could be a busy summer for weddings. Or not.

The possible outcomes are many. You can read more about them here: http://www.scotusblog.com/case-files/cases/hollingsworth-v-perry/ and http://www.scotusblog.com/case-files/cases/windsor-v-united-states-2/

It’s after 5:30am. The sun is up, a little. In less than an hour the Supreme Court may announce that DOMA is unconstitutional and the Federal Government has to recognize my valid state marriage. It may announce that California isn’t allowed to grant the right to marry and then take it away on the discriminatory basis of a person’s sexual orientation or gender. It may very well say that they aren’t in the business of deciding these things and dismiss based on standing or as “improvidently granted.” If a decision comes today I will be at the Sacramento news conference at the LGBT Center and the rally on the on the west steps of the Capitol at 6pm: https://www.facebook.com/events/598575030160877/

Or it may not announce today. The Supreme Court may stay silent another day. And then we will wait until next Monday 6/24, or next Thursday 6/27. In which case I will go work on my house some more, and deal with the taxes, and spend time with my family… wondering if the decision will bring joy or tears. Hopefully I’ll be able to get some sleep.

I could have written a lot about the court, the precedents, and the possible legal outcomes. I’ve done so before. I will do so again. But when these cases wake me up in the middle of the night they come down to family, and being treated fairly instead of feeling bullied by the law, and whether today will bring joy or tears, parades of devastation or celebration … or possibly just more confusion.

p.s. It’s 7:18am Pacific… the court announced 3 opinions. None are the marriage cases. No more decisions today. It’s time to go get some sleep… or drink a lot of caffeine and get busy with my day… I’m not sure which.

Why LGBT groups prefer DOMA be held Sexual Orientation (not Gender) Discrimination

In my first legal blog post “How can same-sex marriage not be gender-based classification?” I explained why I believe the Supreme Court should hold that DOMA is gender-based discrimination (rather than discrimination on the basis of sexual-orientation) and therefore unconstitutional. If you made it to the end of that article (I know some of you lay-persons gave up on the legalese and nodded off) you will have seen that I promised to continue this discussion by addressing why LGBT groups don’t want lawyers and judges to use the gender-based classification argument in challenging DOMA.


One of the great advantages, and also the great tragedies, of graduating from law school is that I gained the ability to really and truly argue two opposing sides of the same argument. Ok, maybe some of you were on the high school debate team and got the same ability without accumulating mounds of student loan debt. I wasn’t on a high school debate team. I’ve always been very opinionated, and could only argue MY side of an argument. I’m still opinionated, but if it’s logical and can be supported by the facts and the law, I can argue the other side.

MY side of the argument, let’s be clear, is that the Supreme Court should hold that DOMA is gender-based discrimination. It’s logical. It’s winnable. It’s supported by existing precedent.

But very smart and ethical people in the LGBT community, even some of the people who I used in the bedtime story about the four bisexual couples in my other blog on the subject, feel very strongly that Marriage Equality should be fought and won as discrimination on the basis of sexual-orientation. My paper argues specifically for sex discrimination as a winning argument against DOMA and other marriage bans, rather than a general all purpose argument against all anti-gay laws.

My argument has a BIG flaw that I will freely admit: it does NOTHING to help pass protections like ENDA and address other discrimination that truly is discrimination ONLY on the basis of sexual orientation. Such as: “you are gay, so you are fired.” Here is why:


As of today, April 2013, the US Supreme Court has not decided whether discrimination on the basis of sexual orientation should get ANY kind of heightened scrutiny. Level of scrutiny is about how closely the court looks at the law in deciding if it is constitutional.

All laws discriminate. If you are poor, for instance, you pay lower taxes than if you are rich. That is a because of federal law that discriminates on the basis of wealth. Wealth is a “non-protected status” (as opposed to race, which is “suspect” and gender which is “quasi-suspect”). When a law discriminates against someone on the basis of a non-protected status it is analyzed under “rational basis scrutiny“. Under rational basis, a law only has to be rationally related to a legitimate governmental purpose in order to be constitutional.

What usually fails the rational basis test? Animus. In City of Cleburne v. Cleburne Living Center the Supreme Court held that a law that discriminated against persons on the basis of their membership in a class of persons based on developmental disability, a non-protected status, was nonetheless unconstitutional because it was based solely on irrational prejudice against the “mentally retarded” (an offensive term but the one in use at the time). The Supreme Court made a similar ruling in Romer v. Evans, holding that the sole purpose of Colorado’s Amendment 2 was irrational prejudice against gays and lesbians (and bisexuals, but the court didn’t include us in the ruling, even though the law did include us in the discrimination).

So far the Supreme Court has never decided that discrimination on the basis of sexual orientation requires “heightened scrutiny” or that lesbians, gays, and bisexuals (LGB) are a “suspect” or “quasi-suspect class“. The hope is that the marriage cases will be the time for that to change.

There is hope for the sexual orientation argument in the trend in state supreme court cases towards defining LGB people as a suspect class, or at least applying heightened scrutiny to discrimination against them in spite of not being a traditionally suspect class such as race.[1]  A broad reading of Romer shows the Colorado Supreme Court held sexual orientation must be subject to strict scrutiny under the equal protection clause, a test the amendment failed.[2]  In Evans v. Romer (the state case that became Romer v. Evans when taken to the US Supreme Court) the Colorado Supreme Court held state constitutional amendment to remove all protections for lesbian, gay, and bisexual people must be subject to strict scrutiny.

Although the U.S. Supreme Court affirmed the judgment in Romer under rational basis, it never specifically disaffirmed the applicability of strict scrutiny, saying the amendment “fails, indeed defies, even this conventional inquiry,” referring to the easiest test, that of rational basis.[3] This implied, to me and some other scholars, that Amendment 2 might have been decided under a higher level of scrutiny, but the court didn’t have to go as far as setting a higher level of scrutiny because the law failed even under the lowest level. Additionally, the US Attorney General recently stated “that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny” than mere rational basis.[4]


WeddingMy argument for holding DOMA as sex discrimination is based on my understanding, as a bisexual, that I am not being discriminated against based on my orientation. There are no check boxes on the marriage application for “gay,” “bisexual,” or “straight.” I could legally marry a man. It does not demean my existence as a bisexual person to marry a man. Marriage, however, is not about just ME. It is about US. My wife and I. Two women in love. My gender classification, in relation to her gender classification, is where the discrimination lies.

But that is not the end of the story. Arguing for the other side of the debate team: it DOES demean me as a bisexual to not give me the choice to legally marry a man or a woman. “The essence of the right to marry is freedom to join in marriage with the person of one’s choice.” (Perez) And so DOMA IS discrimination on the basis of my sexual orientation. It is even more clearly discrimination on the basis of sexual orientation to people who ONLY want to marry a person of the same sex: gay men and lesbian women (the only people who the courts or the marriage equality organizations ever talk about, by the way). But DOMA is also demeaning to bisexual, transgender, and intersex people because it takes away our freedom of choice. It is discriminatory on the basis of sex AND gender AND orientation.


The problem with arguing sexual orientation discrimination against DOMA in the Windsor case currently before the Court is that we still have no idea what level of scrutiny the US Supreme Court will settle on, and up to this point it has only been willing to decide sexual orientation cases under rational basis.  The same risk exists in any state Supreme Court that has not yet decided what level of scrutiny to apply.

The answer of level of scrutiny for sex discrimination, however, is well settled law[5] and combined with the determination in Loving that statutes punishing a person of one race for marrying a person of a different race are in fact race discrimination, it follows that punishing a person of one sex for marrying a person of the same sex is in fact sex discrimination.  Therefore the question of “what is the standard of review” for statutes burdening marriage between members of the same sex should be easy to answer.  The standard of review in Federal Court is intermediate scrutiny based on sex discrimination.

Even if we lose the gamble shooting for a higher level of scrutiny, there is the fallback argument that a statute fails even rational basis because it is not rationally related to any legitimate government end and thus fails to meet even the rational basis test, because the real interest served by the statute is animus against LGBT people.  All laws not determined to be infringing on a fundamental right or classifying based on a suspect or quasi-suspect group are subject to rational basis review.[6] Some laws are so irrational or absurd on their face it is clear they can be motivated by nothing other than animus or prejudice against a group.[7] The danger of relying on a rational basis test is that it is too easy to find some rational basis supporting a statute.  In the case of marriage laws there are factors other than animus, such as sincerely held beliefs that procreation is the purpose of marriage,[8] and only one factor need be found a rationally related legitimate interest to allow the law to stand.

Unconstitutional-MollyTHE BIG WIN –

However, if the Court DOES decide that LGBT people are a group that has been subjected to a history of invidious discrimination and therefore laws that classify on the basis of sexual orientation should be subjected to heightened (intermediate or strict) scrutiny, that is a VERY BIG WIN. Because the next time a case comes up where a person is discriminated against on the basis of sexual orientation (i.e. “you are gay so you are fired”) the previously decided case will be precedent supporting finding the act or statute unlawful.

So what’s the best thing to do? Hope for both. Hope the court finds gender-based discrimination (because it is winnable) and orientation-based discrimination (because it is a bigger win for LGBT people), and wait and see what happens.

What do I think the court will decide?

Seriously? This is not a fortune telling column. I have no idea.

LoveKnowsNoGenderFor more on this topic, read my paper: “Bisexual Marriage”: A Sex Discrimination Argument for Heightened Scrutiny of Same-Sex Marriage Bans …particularly if you want to find out more details about how the Loving v. Virginia interracial marriage decision addresses the fact that DOMA affects men and women equally and how Justice Scalia’s dissent in Lawrence v. Texas made the case for arguing a sex discrimination claim against DOMA and other marriage bans (topics on which I might write additional blog posts).


[1] In Re Marriage Cases, 183 P.3d at 440 (California Supreme Court held discrimination on the basis of sexual orientation subject to strict scrutiny when invalidating law disallowing same-sex marriage as violating equal protection under state constitution); Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (Colorado Supreme Court held state constitutional amendment to remove all protections for LGB people subject to strict scrutiny).

[2] Louis Michael Seidman, Romer’s Radicalism: The Unexpected Revival of Warren Court Activism, 1996 Sup. Ct. Rev. 67 (1996).

[3] Although the U.S. Supreme Court affirmed the judgment on different rationale than that of the state supreme court, it never specifically disaffirmed the applicability of strict scrutiny, saying the amendment “fails, indeed defies, even this conventional inquiry,” referring to the easiest test, that of rational basis. Romer, 517 U.S. at 632 (emphasis added).

[4] Statement of the Attorney General on Litigation Involving the Defense of Marriage Act, Department of Justice, Office of Public Affairs, (February 23, 2011)  http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

[5] United States v. Virginia, 518 U.S. at 519.

[6] Romer 517 U.S. at 631.

[7] Romer, 517 U.S. at 632; Cleburne 473 U.S. at 448-49.

[8] For instance see Standhardt v. Superior Court of Ariz., 206 Ariz. 276, 287 (Ariz. Ct. App. 2003) (holding “the reasonableness of the link between opposite-sex marriage, procreation, and child-rearing.”)

Intersex Rights: How sex classification makes millions of Americans “strangers to the law”

“A State cannot so deem a class of persons a stranger to its laws.”[1]
Justice Kennedy – Romer v. Evans, 517 U.S. 620, 635 (1996)

Throughout history there have been laws and regulations that required the identification of a person’s sex or gender to determine rights and responsibilities in society. The current social, political, and legal uproar over the right of same-sex couples to marry is just the latest of many.

The right to vote in the United States required a person to be male prior to the passage of the 19th Amendment in 1920.[2] But what if, prior to 1920, you wanted to vote and couldn’t prove you were male? In 1843, twenty-three-year-old Levi Suydam of Salisbury, Connecticut, attempted to vote “as a Whig in a hotly contested local election.”[3] Suydam was thought to be “more female than male” so the town selectmen brought in a physician who, finding a phallus and testicles, declared him male and allowed him to vote. The Whigs won by a single vote. Later the same physician discovered that Suydam, whose gender expression and narrow shoulders and broad hips were very feminine, also had a vagina and regular menstrual cycle. Levi was intersex.[4]

IntersexRights-whiteMy friend David Cameron wants to marry the male partner he has been with for years. David is not entirely male, so his relationship is not really a “same-sex marriage,” but David is not entirely female either. David’s chromosomes are XXY.[5] He has a penis and very small testes. The rest of his body was of a feminine shape, hairless with wide hips and full breasts, until doctors told him he had to take testosterone to be a “normal” man.[6] His California state birth certificate and driver’s license list him as “male.” But David doesn’t feel male, nor does he feel female.[7] David is intersex, and wishes to change his legal identification to match his true birth sex.

David approached me a few years ago with this challenge, and later was joined by three other intersex Californians with the same request, including Hida Viloria. These “four brave humans” (as we nicknamed the group) are attempting to challenge the pervasive myth of duality by insisting the law recognize the existence of their true sex.[8]


Around the time David approached me I was writing a paper called “Strangers to the Law: The Legal Treatment of People Who Are Intersex, Intergender, or In-between.” The point of the paper was to bring some visibility of the juridical issues of intersexuality to the legal community. At the time Australia had just just changed its passport laws, but I knew of no U.S. cases of a classification other than M or F being allowed by any state or federal agency.

I have since heard of one case in September 2012 of a birth certificate being changed in Ohio at an intersex person’s request, approved ironically because of Ohio’s anti-transgender policies, but the court ordered the pejorative “hermaphrodite” term be used. Additionally there is a lone intersex person attempting to get the sex classification changed on their driver’s license in Colorado, having filed discrimination charges with the Colorado Civil Rights Division against Colorado’s version of the dept of motor vehicles. The December 2012 response was that “[c]urrent procedures and programming allow only either the sex designation of ‘male’ or ‘female’ on driver’s license applications” and a recommendation that they go ask the legislature. (See footnotes below for recent cases).

Pick-one Imagine this: what if society had decided there were only two kinds of people, the Blondes and the Black Haired. If you have a CA Driver License (I don’t know about other states) look at it. Mine says SEX:F  HAIR:BLN. I was born a “Blonde.” Now imagine you are a Redhead. An intersex friend of mine told me that being born Intersex is more common than being born a Redhead. Imagine every form you ever filled out had only 2 check boxes for hair color and the computer systems were all set up to accept only 2 choices: BLN or BLK. Just like there are only 2 boxes for M or F. You don’t really have BLN or BLK hair (or at least you weren’t born with it, although it may have been dyed by your parents and doctors to force you to fit in) but you have to pick one of those boxes every time you fill out a form, and carry an ID that says you are something that you know you really aren’t. Now you may be saying “Toby, sex isn’t the same as hair color!” Right. Society has made a huge deal out of what sex or gender category a person is born into or assigned. So isn’t it that much more important to be inclusive of all sexes and genders?

Not all intersex persons identify as intersex or want to identify themselves publicly as intersex, but some do, both for reasons of challenging “intersex invisibility” and to address issues with misidentification. Practically speaking I think the most effective way to accomplish the task of changing ID laws will be to start with the relatively LGBT friendly California state legislature and put forth a bill to amend the statutes and regulations controlling drivers’ licenses to allow for a third classification (as was successfully done by transgender rights advocates to allow people to change their classification). Both “I” for “intersex/intergender” or “X” for “indeterminate” (like the “X” on passports allowed in Australia) have been discussed as options.

However, if they succeed in getting their legal sex changed to “I” or “X” they will be left out by all of the statutes that mention sex, because they are neither male nor female. They can marry no one in most states.[9] They are to be incarcerated nowhere.[10] They are not covered by affirmative action hiring of women[11] or military drafting of men.[12] They do not exist. They are “strangers to the law.”[13]


At this point some of you are probably wondering if I am intersex. Why else would I care so much about this issue? I am not intersex. I am a bisexual woman. Having spoken out loudly for bisexual visibility, I feel especially passionate about others who have been made invisible in society. Intersex invisibility is far more pervasive than bisexual invisibility. Even the term “bisexual” is a misnomer perpetuating intersex invisibility: “bi” meaning “two” or “both” assumes only two sexes. In his article on bisexual erasure Kenji Yoshino writes:

“These premises–that there are two sexes (male and female) and that anatomical sex can be coherently distinguished from social gender [are] deeply contestable ones.  [T]he intersexed occupy a place between the two conventionally ordained sexes (male and female) that the bisexual occupies between the two conventionally ordained orientations [gay and straight]. Making bisexuality visible on the grounds that intermediate categories deserve social attention while letting intersexuality remain invisible thus creates an ironic asymmetry.”[14]

In spite of society’s obsession with the duality of male and female the law has mostly failed to legally define sex. The law ignores those whose sex may be ambiguous. In keeping with the myth of duality, the law makes no provision for people who are intersex because it assumes that exceptions to the rule of two are extremely rare, when in fact they are anything but. Law professor and expert on intersexuality Julie A. Greenberg says:

“Recent medical literature indicates that approximately one to four percent of the world’s population may be intersexed and have either ambiguous or noncongruent sex features. Thus, the manner in which the law defines ‘male,’ ‘female,’ and ‘sex’ will have a profound impact on at least 2.7 million persons in the United States. If, as some experts believe, the number of intersexed people is four percent, approximately ten million people in the United States will be affected.”[15]

David, Hida, and others like them are not nearly as rare as people think. Add to this the untold numbers of people who are intergender (identify as neither male nor female) or in-between (transgender people in the process of transitioning) and the need to uncover and correct the myth of duality becomes all too clear. “[L]abeling someone a man or a woman is a social decision.”[16] The duality of male and female is not a scientific fact, unbending like a concrete foundation. It is a social construct, flexible and changing over time. Basing law upon the myth of duality is like building a house upon sand.

Male-Female-questionPeople who are intersex, intergender, or in-between are done violence by the myth of duality as they are forced into boxes which they do not fit, like a square peg in a round hole. Existing statutes that differentiate by sex/gender are all, of course, about man and woman, male and female. So although the laws discriminate against M (male), F (female), or both on the basis of sex, the invisible third sex/gender “I” (intersex/intergender/in-between) is completely left out of the picture. The invisibility of millions of intersex people highlights the absurdity of the gender specific laws like the so called Defense of Marriage Act (DOMA).

Biological sex, gender identity, gender expression, and sexual orientation are different parts of each person’s identity that exist side by side. [17] The popular notion that there are two distinct categories for each area (male/female, man/woman, masculine/feminine, gay/straight) with everyone falling neatly into one or the other is a absurd. People who are intersex, genderqueer,[18] androgynous, or pansexual do exist, along a continuum. We do not live in a black and white world. We live in a rainbow of colors.

The strict gender-binary social construct is based on a myth. Many people can and do exist somewhere in the spectrum between male and female, neither man nor woman. These people are made strangers to the law by our strictly dual gendered system of classification and the discriminatory laws based on that system. Classification at birth (and the surgery that often accompanies it) is particularly onerous to intersex persons, whose proper gender cannot be known until they are old enough to speak for themselves and may not correspond to either of the two choices given. The use of terms of sex/gender in statutory language and inconsistent state and federal laws and regulations on changing one’s classification create additional barriers for people who are intersex, intergender, or in-between during transition. While it is unlikely that the entire system of sex and gender classification will be defeated any time soon, it is imperative that we do away with all discrimination based on sex and gender, and begin to think of ways to allow people to accurately classify themselves and include those of a third sex/gender that is neither male/man nor female/woman. The intersex/intergender/in-between people of our society are part of our society, and cannot continue to be made strangers to its laws.

For more on this topic read my paper:  Strangers to the Law: The Legal Treatment of People Who Are Intersex, Intergender, or In-between …particularly if you want to find out more details about the historical and cultural background of the myth of duality and how marriage and ID statutes affect intersex, intergender, and transgender persons (topics on which I might write additional blog posts).
Special thanks to Professor Larry Levine, legal writing specialist Lexis Allen, and career coach Molly Stafford.


[1] Romer v. Evans, 517 U.S. 620, 635 (1996).

[2] U.S. Const. amend. XIX prohibits any U.S. citizen from being denied the right to vote based on sex.

[3] Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality, pg. 30 (2000).

[4] “An estimated one in 2,000 babies is born with a reproductive or sexual anatomy and/or chromosome pattern that doesn’t seem to fit typical definitions of male or female.  The conditions that cause these variations are sometimes grouped under the terms ‘intersex’ or ‘DSD’ (Differences of Sex Development).  These conditions include androgen insensitivity syndrome, some forms of congenital adrenal hyperplasia, Klinefelter’s syndrome, Turner’s syndrome, hypospadias, and many others.” Anne Tamar-Mattis, FAQ: What is intersex/DSD?, Advocates for Informed Choice (AIC), http://aiclegal.org/faq/#whatisintersex.

[5] “Most men inherit a single X chromosome from their mother, and a single Y chromosome from their father. Men with Klinefelter syndrome inherit an extra X chromosome from either father or mother; their karyotype is 47 XXY. Klinefelter is quite common, occuring (sic.) in 1/500 to 1/1,000 male births.” Klinefelter Syndrome, Intersex Society of North America (ISNA) http://www.isna.org/faq/conditions/klinefelter.

[6] David Cameron “My Intersex Journey: From Awkward Teenager to Human Rights Activist” in 21st Century Sexualities : Contemporary Issues in Health, Education, and Rights, edited by Gilbert H Herdt & Cymene Howe, at 163-164 (2007). See also D. Cameron “Caught Between: An Essay on Intersexuality” in Intersex in the Age of Ethics, edited by Alice Dreger, at 92-93 (1999).

[7] Id.

[8] The status of their case is that they have not yet filed any paperwork and are in discussions with LGBT and Intersex advocacy groups about how best to proceed.

Recent Cases, Ohio: In the Matter of the Application for Correction of the Birth Record of [name redacted]; Probate Court of Franklin County, Ohio; entered September 19, 2012.

Recent Cases, Colorado: Dana Alix ZZyym v. Colorado Dept. of Revenue; Colorado Division of Civil Rights; charge filed October 19, 2012.

[9] At the time my paper was written only seven U.S. jurisdictions had gender-neutral marriage laws: Massachusetts (Goodridge v. Dept of Public Health, 798 N.E.2d 941 (2003)), Connecticut (Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (2008)), Iowa (Varnum v. Brien, 763 N.W.2d 862 (2009)), Vermont (Vt. Stat. Ann. tit. 15 § 8 (2009)), New Hampshire (N.H. Rev. Stat § 457:1, et seq, (2010)), the District of Columbia (D.C. Code § 46-401; affirmed in Jackson v. D.C. Bd. of Elections & Ethics, 999 A.2d 89 (2010 D.C. App.)), and New York (A.B. 8354, 234th Gen. Assem., Reg. Sess. (2011)). Additionally California recognizes the 18,000 same-sex marriages that occurred in the state and any that occurred in other jurisdictions between June 16, 2008 and Nov. 4, 2008 as valid marriages.  See generally Marriage Equality & Other Relationship Recognition Laws, Human Rights Campaign, at http://www.hrc.org/documents/Relationship_Recognition_Laws_Map.pdf (updated July 6, 2011).

[10] See, e.g., Cal. Pen. Code, Part 3, Title 1. “Imprisonment of Male Prisoners in State Prisons” and Title 2. “Imprisonment of Female Prisoners in State Institutions”.

[11] See, e.g., Cal Ed Code § 89515 (2010).

[12] See, e.g., Miss. Code Ann. § 25-9-127 (2011), “male state employees required to register with selective service”

[13] Romer, 517 U.S. at 635.

[14] Kenji Yoshino, The epistemic contract of bisexual erasure, Stanford Law Review, January 1, 2000. http://www.kenjiyoshino.com/articles/epistemiccontract.pdf.

[15] Julie A. Greenberg, Therapeutic Jurisprudence: Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265, 267-268 (Summer, 1999).

[16] Fausto-Sterling, Sexing the Body, at 3.

[17] Center for Gender Sanity, Diagram of Sex and Gender, http://www.gendersanity.com/diagram.html (2009).

[18] “Genderqueer: Someone who rejects the traditional gender binary and identifies as a) neither male nor female, b) as both, or c) as a combination thereof.” Stewart Wachs, Questioning Gender: An interview with Japan-based psychotherapist Kim Oswalt, Kyoto Journal #64, Nov-Dec 2006, http://www.kyotojournal.org/kjselections/oswalt.html.

How can same-sex marriage not be gender-based classification?

Justice Kennedy… you know, that Justice who is known to be the swing vote on whose shoulders seems to rest most social justice issues that make it to the Supreme Court? Well, he asked a very pertinent question in the Perry oral arguments (on page 13):

JUSTICE KENNEDY: “Do you believe this can be treated as a gender-based classification?…It’s a difficult question that I’ve been trying to wrestle with it.”

It’s a not-so-difficult but very important question I’ve been trying to wrestle with, too. Mostly I’ve been wrestling to get anyone to listen to my arguments.

In a legal paper I wrote I stated that gender-based discrimination is the best way to argue against DOMA & Prop 8 since 1) all Equal Protection claims must be decided under either heightened scrutiny or rational basis, 2) gender-based classifications already receive heightened scrutiny, and 3) banning same-sex marriage is gender-based discrimination which is unconstitutional when decided under heightened scrutiny. But I argued my case by comparing bisexual people in same-sex and different-sex marriages. Apparently this confused all the gay and straight people.

To explain the legal argument in a little bit more depth:
1) Equal Protection claims are decided under either heightened (strict or intermediate) scrutiny or rational basis. Decisions based on heightened scrutiny are most likely to find a law unconstitutional. Decisions under rational basis are least likely find a law unconstitutional.
2) Gender-based classifications already receive intermediate scrutiny, unlike sexual-orientation classifications which are either undecided or rational basis depending on who you talk to. No decision needs to be made about what level of scrutiny to apply if decided as gender-based discrimination, and under intermediate scrutiny DOMA and Prop 8 are more likely to be found unconstitutional than under rational basis.
3) By comparing bisexual people in same-sex marriages to bisexuals in different-sex marriages it is easy to show that DOMA or Prop 8 “treats persons in similar situations differently on the basis of sex,” not on the basis of sexual orientation. Treating people in similar situations differently on the basis of a classification is the legal measure of violating “equal protection” of the laws.

Ok, so maybe it IS a difficult question to wrestle with. There are a few things to explain and a few connections to make. But it doesn’t seem so difficult to answer. The answer, by the way, is YES. Defining civil marriage in the CA or US Constitution as “one man and one woman” is gender-based classification. And Justice Kennedy wouldn’t have asked the question if he didn’t think that the answer might be “yes”.

So what did Cooper, the attorney for the Prop 8 proponents, have to say in response to Kennedy’s question?

MR. COOPER: “We do not think it is properly viewed as a gender-based classification. Virtually every appellate court, State and Federal, with one exception, Hawaii, in a superseded opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered [or] motherhood is gendered, it’s gendered in that sense.”

So… is Cooper saying it is gender-based or it isn’t?

First, the Hawaii case Cooper cites is Baehr. Baehr was the first successful marriage case and the only case in which a state supreme court found an anti-same-sex marriage statute unconstitutional on the basis of sex discrimination. Baehr is the reason Congress created DOMA.”Oh no! The gays are marrying! Run for your lives!”

It’s a good thing Cooper said “virtually” or I would have been screaming out loud at him in the Starbucks in which I listened to the oral arguments… more than I already was. In Iowa’s Varnum case the District Court also held on the basis of sex discrimination, but the Iowa state supreme court rejected that argument and found the statute unconstitutional on the basis of sexual orientation. Ok, so in Varnum it wasn’t an appellate court, it was a District Court, I know. But still… Any excuse to rail at Cooper a little bit and make a fool of myself in Starbucks.

So Cooper admits marriage is gendered, and therefore Prop 8 is gendered, but says virtually every court has agreed that disallowing same-sex marriage is not gender-based classification. Every court, that is, except the highest court in the land – the “one ring to rule them all” – the court with the right to overrule all the others: The Supreme Court. Deciding Perry (“the Prop 8 case”) and Windsor (“the DOMA case”) as I write this. …I really hope one of them reads this. If there is a God, someone will forward this blog to one of Kennedy’s clerks, and that clerk will be someone who understands what a bisexual is, and therefore why this argument makes sense.

The argument which starts with a bedtime story…


Once upon a time there were four couples, similar in every way but one.  They were all raising children, but none of the children were the biological offspring of both parents.  They all had the same sexual-orientation.  They all lived in and were legally married in California.  Two of the couples consisted of spouses of different sexes, and those couples were treated as married by the federal government.  The other two couples consisted of spouses of the same sex, and those couples were denied the rights and responsibilities of marriage by the federal government under the Defense of Marriage Act (DOMA).

Male-CoupleChris and Ted are both male and both bisexual.  They have one child, a son who is the biological offspring of Ted via a gestational surrogate and a separate egg donor.  Both fathers were put on their son’s birth certificate at the hospital.  The two were legally married in California prior to Prop 8 being passed.  Chris and Ted have no federal marriage rights under DOMA.

Female-CoupleToby and Jean are both female and both bisexual.  They have one child, a daughter who is the biological offspring of Toby, via a known donor.  Jean adopted their daughter as soon as California’s RDP stepparent adoption  laws went into effect.  The couple was married in California on July 19, 2008. Toby and Jean have no federal marriage rights.

Mixed-CoupleBryan and Kathleen are a male bisexual and a female bisexual.  They were married on Dec 31st 2002.  They received a full year of federal tax benefits for the one day in 2002 that they were married.  They are raising Kathleen’s niece and nephew as kinship guardians.  They are not interested in procreating together.  Both are politically active in the bisexual community.  Bryan and Kathleen are able to take advantage of over 1,100 federal benefits of their California marriage.

Thomas and Gunilla are a male bisexual and a female bisexual, married in the state of California.  They are raising two teenage daughters, both the biological offspring of Gunilla from a prior marriage.  They are not interested in procreating together.  Both are highly visible bisexual activists.  They have been discriminated against as bisexuals in custody determinations.  In spite of their very visible sexual orientation they are able to get full federal marriage rights.


“Bisexual marriage” is perfect for advancing a sex discrimination argument because it allows us to compare persons of identical sexual orientation and see that the marriage laws are unconstitutional because they treat persons in similar situations differently on the basis of sex. This allows the argument to focus on sex discrimination rather than sexual orientation discrimination.

There are three primary ways the courts have addressed the marriage issue: strict scrutiny under a substantive due process fundamental right, some form of heightened scrutiny under equal protection based on sexual orientation, and the rational basis test.[1] The due process fundamental right to marriage argument is based on the tenet that “the right to marry means little if it does not include the right to marry the person of one’s choice.”[2] Some courts, however, have held that there is no fundamental right to “gay marriage,” which they see as a completely different institution from “marriage”.  Fundamental rights tend to be found if grounded in history,[3] and although there is historical support for a right to marriage, there is no such history for same-sex marriage.  Equal protection, on the other hand, tends to allow for rights which have historically been denied,[4] and is therefore a more winnable claim.  The problem with arguing equal protection based on sexual orientation is that the Supreme Court has yet to settle on a level of scrutiny.[5] So far the Supreme Court has only been willing to apply rational basis to anti-gay laws.  The problem with relying on rational basis is that it is a test that is so easy to pass that the state interest must be something as irrational as “animus” in order to fail.[6] It’s not worth the risk.

Arguing equal protection based on sex discrimination is best because our jurisprudence has already clearly established that if a law treats persons in similar situations differently on the basis of sex, that law cannot pass constitutional muster unless it passes intermediate scrutiny.[7] Sex is a quasi-suspect classification under existing law.[8] Stripping away the differences in sexual orientation and focusing on DOMA (or Prop 8, or any other “mini-DOMA”) strengthens the sex discrimination argument.  This allows the Court to avoid deciding whether sexual orientation is suspect and focus simply on whether the law treats persons in similar situations differently on the basis of sex, and whether that classification is substantially related to an important government interest.[9] This is an argument that is more inclusive of bisexuals and also much more likely to result in a win for marriage equality.

LoveKnowsNoGenderFor more on this topic, read my paper: “Bisexual Marriage”: A Sex Discrimination Argument for Heightened Scrutiny of Same-Sex Marriage Bans …particularly if you want to find out more details about how the Loving v. Virginia interracial marriage decision addresses the fact that DOMA affects men and women equally, why LGBT groups don’t want us to use the gender-based classification argument, and how Justice Scalia’s dissent in Lawrence v. Texas made the case for arguing a sex discrimination claim against DOMA and other marriage bans (topics on which I might write additional blog posts).

[1] LGBT related cases have occasionally been decided on other bases, such as a First Amendment right to free speech, association, or religion. See Rowland v. Mad River Local School District, 470 U.S. 1009 (1985) (school district suspended guidance counselor after she made declarations of her bisexuality).

[2] “[T]he essence of the right to marry is freedom to join in marriage with the person of one’s choice”. Perez v. Sharp, 198 P.2d 17, 21 (Cal. 1948).  See also Goodridge v. Dept of Public Health, 798 N.E.2d 941, 958 (Mass. 2003);  Loving v. Virginia, 388 U.S. 1, 12 (1967).

[3]  “The Due Process Clause looks backward and considers relevant whether an existing or time-honored convention… is violated by the practice in question.”  Justin Reinheimer, Same-Sex Marriage Through the Equal Protection Clause: A Gender-Conscious Analysis, 21 Berkeley J. Gender L. & Just. 213, 227-228 (2006).

[4] “However, the Equal Protection Clause looks forward, serving to invalidate practices that were [once] widespread… The two clauses there operate along different tracks … [the Equal Protection Clause] does not safeguard traditions; it protects against traditions, however long-standing and deeply rooted.” Id.

[5] “[N]either [Iowa] nor the United States Supreme Court has decided which level of scrutiny applies to legislative classifications based on sexual orientation.” Varnum, 763 N.W.2d at 885-886.

[6] See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 441 (1985). See also Romer v. Evans, 517 U.S. 620 (1996).

[7] United States v. Virginia, 518 U.S. 515, 519 (1996).

[8] Id.

[9] The government interests argued in creating DOMA included: (1) advancing the interests of defending and nurturing the institution of traditional heterosexual marriage, (2) defending traditional notions of morality, (3) protecting state sovereignty and democratic self governance, and (4) preserving scarce government resources. House Report on DOMA, 1 U.S.C. § 7, H.R. Rep. No.104-664. H.R. 3396; cited in Complaint in Gill v. Office of Pers. Mgmt., March 3, 2009.

This is my first Blog

I am trying out different blogging tools, themes, names, and the like. I plan to start blogging about things I care about. I care about civil rights, lgbt issues, disability, mental health, 12 step programs, spirituality, parenthood, foster/adoption, marriage rights and marriage as a state of being, and the US Constitution. Before I get going, I want to chose the right tool and the right name. So please give me your input. What do you think?