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. 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.” 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.
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. 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. His California state birth certificate and driver’s license list him as “male.” But David doesn’t feel male, nor does he feel female. 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.
THE LEGAL LANDSCAPE –
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).
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. They are to be incarcerated nowhere. They are not covered by affirmative action hiring of women or military drafting of men. They do not exist. They are “strangers to the law.”
WHY I CARE –
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. Kenji Yoshino writes: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
“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.”
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.”
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.” 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.
People 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.  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, 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.
 Romer v. Evans, 517 U.S. 620, 635 (1996).
 U.S. Const. amend. XIX prohibits any U.S. citizen from being denied the right to vote based on sex.
 Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality, pg. 30 (2000).
 “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.
 “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.
 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).
 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.
 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).
 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”.
 See, e.g., Cal Ed Code § 89515 (2010).
 See, e.g., Miss. Code Ann. § 25-9-127 (2011), “male state employees required to register with selective service”
 Romer, 517 U.S. at 635.
 Kenji Yoshino, The epistemic contract of bisexual erasure, Stanford Law Review, January 1, 2000. http://www.kenjiyoshino.com/articles/epistemiccontract.pdf.
 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).
 Fausto-Sterling, Sexing the Body, at 3.
 “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? (tobyshome.wordpress.com)
- MOVIE REVIEW: Intersexion (musingsofamildmanneredman.com)
- Lawsuit Filed Over Unnecessary Surgery on Intersex Baby
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…
THE 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).
Chris 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.
Toby 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.
Bryan 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.
THE ARGUMENT –
“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. 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.” 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, 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, 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. 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. 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. Sex is a quasi-suspect classification under existing law. 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. This is an argument that is more inclusive of bisexuals and also much more likely to result in a win for marriage equality.
For 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).
 “[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).
 “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).
 “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.
 “[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.
 See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 441 (1985). See also Romer v. Evans, 517 U.S. 620 (1996).
 United States v. Virginia, 518 U.S. 515, 519 (1996).
 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.