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

The Gender Caste System: Identity, Privacy and Heteronormativity

WEISS, JILLIAN TODD U.S.A.
E-mail: WEISSJ@sullcrom.com

According to the common law, there are only two sexes or genders, each person must be labeled at birth, and the label may not be changed. The states regulate these labels ostensibly by virtue of their powers over the health, safety and welfare of their citizens. The common law thus rejects the transsexual claims that sex and gender are distinct and that sex may be changed. While there are statutes and regulations in some jurisdictions which overturn this common law presumption, permitting a change of sex identification on certain government documents, most courts refuse to give effect to the change in areas not governed by the statutes, such as marriage, citing both the common law and scientific biological principles in support. Yet many transsexual advocates assume that sex may, in fact, be changed, and courts must recognize such change. Is there any legal basis for the claim that government must recognize a change in sex? The common law failure to recognize transsexual persons’ claim that sex identity may be changed creates a type of "caste" system similar to the historical caste system of India, also justified by reference to heredity and biology. In the United States, heteronormative principles are enshrined as law, subjecting transsexual persons to denial of privacy interests, harassment and discrimination. Under the law of privacy as it is understood in the United States, however, the recognition by theorists in different fields, including medicine, sociology, anthropology, linguistics and law, of a distinction between sex and gender may require a governmental recognition of the right to change sex. These theorists argue persuasively that gender is a psychological phenomenon and a social construct which is relatively fixed throughout an individual’s lifetime, and may or may not relate to physical sex in traditional ways, rebutting the common law presumption that sex and gender are the same. Furthermore, disclosure of such variation from traditional sex roles subjects the transsexual person to discrimination and harassment. The United states Supreme Court has recently recognized that the United States Constitution extends a right to privacy in certain contexts, which includes a right to choose one’s personal identity and to limit government practices, such as record keeping, which pose a threat of harassment or discrimination. These principles apply equally to the pre-operative and post-operative transsexual. Thus, jurisdictions in the United States may be constitutionally required to recognize a transsexual person’s claim, pursuant to recognized medical guidelines, that their governmental gender identification is incorrect, regardless of physical sex or surgical status.