XVII Harry Benjamin International Gender Dysphoria Association Symposium
31 October - 4 November 2001, Galveston, Texas, U.S.A.

The American Gender Caste System: Hidden Historical Influences and the Law

WEISS, JILLIAN U.S.A.

In reference to the law, Justice Oliver Wendell Holmes said that a page of history is worth a volume of logic. He also said that the law must be rewritten every fifty years to accommodate the needs of changing reality. Illustrating this, it has been about fifty years since Christine Jorgensen hit the world’s headline, and yet the laws in various jurisdictions are only just beginning to catch up with the transsexual phenomenon, creating a complex interweaving of history and logic. The law is akin to an archeological dig in various stages of discovery, and many of the historical antecedents of the current state of legal affairs remain hidden.

There are three types of jurisdictions: those that recognize the right to change one’s sex, those that explicitly repudiate such a right, and those that have intermediate (and often self-contradictory) positions. Two examples of the complexity of affairs are the Littleton case in Texas and the Gardiner case in Kansas. The current legal system of gender seems to some to be a "caste" system justified by spurious principles of heredity and biology, which have as much validity as phrenology. Others feel just as strongly that to allow the right to change sex is to deny the physical fact of sex. This presentation focuses on the hidden historical roots of the conflict between these two antipodal legal positions, with a view to elucidating the startling true nature of the conflict.

The conflict appears to be a dispute regarding the relationship between sex and gender. It is not. Although there are many contributing factors to the conflict, primary amongst these are three conceptual systems, which give rise to the present state of the law. "Identity" as interpreted by the common-law precedent system circa 1100 A.D., "privacy" as created by the concepts of autonomy arising in the Age of Reason and embodied in the United States Constitution, circa 1700 A.D., and the cultural milieu surrounding sex and gender circa 1850 A.D., which may be termed "heteronormativity." These three historical roots intertwine to create a nearly impenetrable barrier of social policy enshrined as law. Since the 1970’s, certain courts and legislatures, honoring the principles of individual liberty over the demands of social order, have striven to remove the barrier, but the barrier, albeit partially cut away, is still there. It will likely remain in place so long as the disputants fail to realize the real point at issue, which becomes clearer after consideration of the three conceptual systems above at the presentation.

The presentation will cover a brief review of the conflict of laws in the three types of jurisdictions referred to above – the severe but largely unacknowledged institutional tensions, which have been generated as a result, a discussion of the evolution of the historical concepts, which led to the state of affairs, and a revelation of the startling true nature of the real point at issue in this debate.