In my first legal blog post “How can same-sex marriage not be gender-based classification?” I explained why I believe the should hold that DOMA is gender-based discrimination (rather than discrimination on the basis of ) 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. 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. 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. 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.
MARRIAGE IS ALL ABOUT US; ORIENTATION IS ALL ABOUT ME –
My 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 RISK –
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 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. 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. 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, and only one factor need be found a rationally related legitimate interest to allow the law to stand.
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.
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 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).
 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).
 Louis Michael Seidman, Romer’s Radicalism: The Unexpected Revival of Warren Court Activism, 1996 Sup. Ct. Rev. 67 (1996).
 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).
 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
 United States v. Virginia, 518 U.S. at 519.
 Romer 517 U.S. at 631.
 Romer, 517 U.S. at 632; Cleburne 473 U.S. at 448-49.
 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.”)
- How can same-sex marriage not be gender-based classification? (tobyshome.wordpress.com)
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