Dr. Jillian T. Weiss

Transgender Constitutional Rights: How Justice Kennedy Killed the Sex Police

Filed By Dr. Jillian T. Weiss | April 11, 2009 10:30 AM | comments

Filed in: Living, Marriage Equality, Transgender & Intersex

I will be giving a talk, titled as above, at Hampshire College on April 17 in Western Mass. The working title was "Lawrence v. Texas and the Constitutional Right to Gender Autonomy," but that put even me to sleep, and it would be nice to get more than the usual three people to show up on a warm spring afternoon, hence the provocative title.

Justice Kennedy didn't really kill anyone, but he did seemingly kill off police supervision of sexual morality, writing a Supreme Court opinion in the case of Lawrence v. Texas (2003) that strongly defended the sexual freedom of gay people. That same reasoning could be used to secure the right of transgender people to legal recognition of their gender identity. I've discussed transgender constitutional rights here before, but for my next trick, I'd like to try to apply that to a case. That's always the hard part of law: the neat rules don't always fit the messy facts.

I've constructed a fictional case, captioned "The State versus Sam Spade," that I will discuss with the students during my talk at Hampshire. I thought I would share it here with my Bilerico family, and invite you all, as well as Hampshire students, to discuss it online.

I have drawn my hypothetical case from four real ones discussed in the recent excellent article by Aeyal Gross, Professor of Law at Tel-Aviv University, "Gender Outlaws Before the Law: The Courts of the Borderlands," 32 Harvard Journal of Law & Gender (2009). It's well worth a read. I've also added elements from the Sandy Gast case.

In typical law school style, this fictional case is given a humorous touch to make it easier to discuss issues of social injustice without getting so emotionally gravid that anger drives out all logic. The real cases involving real people are tragic miscarriages of justice and there is nothing funny about that. But for purposes of a short talk on a warm summer afternoon, I'm leaving behind the outrage that we all feel about the law's failure to do justice and trying to keep it light. Can you tell where I got the characters' names?

Case Study: The State v. Sam Spade

Facts: After a torrid and tempestuous year-long affair, handsome Sam Spade, 22, and beautiful Brigid O'Shaughnessy, recently turned 18, decide to wed. The two impetuously fly to beautiful Aitch Township, in the State of Hampshire, where they obtain a marriage license and are married by a justice of the peace.

Before they marry, O'Shaughnessy and Spade have a heart-to-heart talk. As the sunset illuminates her hair and dramatic arpeggios punctuate her words, she reveals that she was previously divorced and that her ex-husband Wilmer, a raging alcoholic with a long criminal record, is desperately seeking to exact his revenge for leaving him. Spade, for his part, professes his profound love for O'Shaughnessy and vows to protect her. He reveals to her that he is the heir to the $7 billion Jell-O Pudding Pops fortune, an avid collector of rare South American stamps, and a female-to-male transsexual. He also tells of his divorce after a very brief marriage.

On his knees, he pleads with O'Shaughnessy that he loves her with all his heart and hopes that she will stay with him. Spade holds his breath because O'Shaughnessy, whose best description is "diva," is never very far from a tantrum. She is very surprised, but after a moment to recover, affirms with a heart-felt embrace that Spade is her only love, that she feels alive only when she is with him, and cannot imagine life without him. The couple are then married by the justice of the peace and spend the night in wedded bliss.

The next morning, however, Spade awakes to find O'Shaughnessy gone, and is immediately concerned for her welfare. He goes searching for her at likely places but fails to finds her, returning home very anxious. He is surprised to find her standing angrily by his front door tapping her foot, accompanied by two strangers in blue. It seems those divorce papers of Spade's were not properly filed and the divorce never went through. In fact, O'Shaughnessy was contacted by one Iva Archer, a blonde with a bad attitude, who says she heard about the marriage from a friend, and told O'Shaughnessy that she is still married to Spade. Spade insists she is mistaken. O'Shaughnessy, wanting Spade's head on a platter, nods to one of the police officers. Spade is arrested on charges of bigamy, fraud, impersonation and statutory rape.

O'Shaughnessy later repents after Spade finalizes his divorce from Archer. However, the prosecutor, Kasper "Hang-em-high" Gutman, who is running for re-election on a platform of "protecting your children from dangerous sexual predators," refuses to allow her to drop the charges. Spade contacts you for representation. After considering the following statutes, explain at least one of the defenses you will raise on behalf of Spade in the comments section below.

The following are fictional statutes of the State of Hampshire.

3-3-101. Bigamy
A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

3-3-303 Criminal Fraud
A person is guilty of criminal fraud when...(e) one provides information to a government official or employee, knowing the same to be false, with the purpose of obtaining government benefits or privileges based thereon.

3-3-325 Criminal Impersonation
A person is guilty of criminal impersonation when one impersonates another and does an act in such assumed character with intent to injure or defraud another.

3-3-601 Statutory Rape
A person is guilty of statutory rape when...(c) one engages in sexual contact with a person under the age of 18. However, this shall not apply when the other party is over the age of 14, the offender is 22 years old or less, and less than 4 years older than the victim, only the offender and the victim are involved and they are of opposite sex.

27-505 Husband-wife privilege
A husband and wife can in no criminal case be a witness against the other. This privilege may be waived only with the consent of both spouses. However, these privileges may not be claimed in any criminal case where the crime charged is a crime of violence, bigamy, or incest.

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Many of the issues would depend on the exact laws of the state of Hampshire, and the state where the defendant was born.

For example, if born in Ohio, he would have a female birth certificate, as that state does not recognise transsexual transition.

If the state of Hampshire follows Illinois (IIRC) then they may not recognise an out-of-state Birth Certificate that has been corrected, it would depend on exactly what surgeries the defendant had had, and quite possibly by whom. For example, if by a surgeon not registered to practice in the US at the time of the surgery, even if registered afterwards, the surgery doesn't count for the purposes of Illinois BC registry, and by extension, may not count for any purpose.

All of this is moot if the state of Hampshire recognises same-sex marriage, UNLESS it follows Kansas. In that case, the defendant's sex is defined by "immutable characteristics at birth", and this has been interpreted as chromosomes. If the defendant has 47xxy chromosomes, or is a mosaic of 46xx and 46xy etc then they are neither male nor female, so may not marry anyone. The law is not clear here.

If the state of Hampshire rules that transsexual transition voids any existing marriage priot to transition - though there is no case-law on this - then the defendant may not be married to the first partner - who is described as a blonde, but whose sex could be either male (if the marriage was contracted before transition) or female (if contracted after). Unless in Massachusetts. Or in Texas, where who they could marry would depend on the county, no matter what Texas state law says.

No-one who is not TS will believe just how much of a legal schlemozzle TS people find themselves in

I will assume that the state of Hampshire follows the majority of US states. That same-sex marriage is forbidden, and that the defendant is legally male, having transitioned.

3-3-601 Statutory Rape - the alleged victim was 18 at the time, so is not covered, as any victim must be under 18. Open and shut.

3-3-325 Criminal Impersonation - who is the defendant alleged to have impersonated? Himself? What injury as been caused? What fraud has been committed? Assuming injury and/or fraud is proven, then showing a "mens rea" - intent - would be difficult.

3-3-101 Bigamy
The prosecution would have to prove that the defendant knew (or possibly ought to have known) that his former marriage was still valid. From the facts as stated, there is no evidence of this, but this would have to be investigated by the prosecution. The defence is that the defendant did not know that his former marriage had not been properly dissolved.

3-3-303 Criminal Fraud
Same defence as above, that the defendant did not knowingly provide false information. In addition, there is a defence about the exact meaning of " government benefit" or "privileges". Does the ability to marry count? Would tax breaks accrue? Finally, isa Justice of the Peace a "Government offioial or employee" within the meaning of the act? All elements must be proven for the charge to be proven, and lack of any one means it must fail.

Testimony of the defendant's wife would be excludable in all but the charge of Bigamy, and without such evidence, the Criminal Impersonation charge could not be sustained.

The whole case becomes far more interesting if the state of Hampshire does not recognise transsexual transition.

Oh yes - IANAL. But as a matter of fact, I am a Rocket Scientist.

How'd I do, Teach?

And the Maltese Falcon goes too....

But seriously, if I'm ever in the fictional state of 'Hampshire' I'll call Zoe for legal representtation.

Well Sam seeks out Joel Cairo from the firm of Gardenia and Cairo.

Paralegal Gutman suggests that the facts fit the statutes in the following ways:

3-3-101. Bigamy: Only if Spade knows or should have known that the divorce was not finalized.

3-3-303 Criminal Fraud: as in Bigamy Spade either knows or should have known that the divorce was not finalized and seeks benefit of marriage after lying to Justice of Peace about existence of first marriage.

3-3-325 Criminal Impersonation: Spade impersonates a single person and impersonates a person of the male sex. With regard to the single person, Spade must have known or should have known that the divorce was not finalized. With regard to impersonating a person of the male sex Spade must ask the court to rule on his maleness.

By the statute, however, the State must prove that Spade intended to injure or defraud another. Can the "another" be limited to O'Shaughnessy? If so, there is no intent as he disclosed his previous marriage and the fact that he was born not a man.

3-3-601 Statutory Rape: O'Shaughnessy is 18 and thus not under the age of 18. The statute does not apply.

27-505 Husband-wife privilege: If Spade is cleared of Bigamy charge the privilege applies if a valid marriage exists. However since the divorce from wife 1 was apparently not finalized the privilege would exist between Spade and wife 1.

The Husband-and-wife privilege for O'Shauggnessy would be invoked if after reconciliation and finalisation of the divorce, they got married. I made the unwarranted assumption that "reconciliation" in this case meant they got married (with no legal impediment). As a defence lawyer, I would advise them to do so immediately if they haven't already done so.

Good points, both of you.

On the statutory rape question, note that the facts state "a torrid and tempestuous year-long affair." Since O'Shaughnessy is now 18, she presumably had sexual contact with Spade prior to 18. But, the statute provides an exception for opposite sex couples within 4 years of each other's age if they are of the opposite sex. If Spade is recognized by the state of Hampshire as male, then the exception applies (unless he was born later in the year than she), but if not, then Spade is in trouble.

One major question here is: After Lawrence v. Texas, which prohibited criminalization of same-sex relationships, is it constitutional for the state to provide an exception that makes same-sex relations criminal when opposite-sex relations of the same character are legal?

The Kansas Supreme Court says its unconstitutional. See the real life case: State v. Limon, discussed at https://washblade.com/2005/10-28/news/national/kansas-sodomy.cfm

It's at times like these that I realise just how stodgy, staid and inexperienced in matters of sex I am. It never occurred to me that a "torrid and tempestuous year-long affair" meant a presumption of pre-marital sex before being "of age".

One of the consequences of being Intersexed/Transsexual, and having the wrong shaped body and hormonal mix. It's only since transition that the word "libido" meant anything to me other than as a purely theoretical concept.

Anyway, that makes the exclusion of O'Shaugnessy's testimony even more important.

Some possible complications: assuming the state of Hampshire follows Kansas and the "chromosome test", the defence could claim that the defendant has Swyer Syndrome, and thus while born with a feminised body, is chromosomally male. It would be up to the prosecution to prove otherwise. Difficult to do. With enough expert witnesses on Intersex conditions, the whole question of what sex the defendant is could be made so confusing that no jury or judge could decide it, except on the "balance of probabilities".

Throw in data about the 5ARD and 17BHDD syndromes, where newborns who look female at birth masculinise later, and unless the prosecution is prepared to get at the defendant's medical records, they may not be able to prove that any surgery happened. From the facts, there may not in fact have been any surgery, transition could have been a natural process.

Such people are effectively Transsexual (as they transition from a female appearance to a male one), though technically Intersexed. If the defendant hailed from the Dominican Republic, the odds of 5ARD are not 1 in 50,000, but 1 in 90. At least 1 in 5 of "transsexual" FtoMs are from natural causes rather than therapeutic ones. perhaps 1 in 1000 "transsexual" MtoFs are from natural causes, that really is rare. (I'm one of them BTW).

It's too bad most legal teams for TS people know little about Intersex conditions. For all we know, the defendant could have been born male but with genitalia deemed too small to be acceptable, and surgically altered to be female. About 1 in 3 such people have male gender identities, and desire corrective surgery later in life. They also make up a significant proportion (10% ??) of "transsexual" people. Mostly FtoMs, but some the other way. Assigned sex at birth (or shortly after) is not definitive.

Anyway, that's why I made those simplifying assumptions, as otherwise the caselaw is just too contradictory.

GLBs in general have no idea that this is the kind of thing Transpeople and the Intersexed deal with all the time, from getting drivers licenses to passports to marriage... and even which public restroom they can legally use.

Anyway, that makes the exclusion of O'Shaugnessy's testimony even more important.

While I understand why this would be important, I don't think it is an issue. My understanding is that spousal privilege applies to utterances while the couple was married. I don't know if it applies to acts. During the time when the couple could have engaged in unlawful under-aged sex they were not married and thus privilege would not apply.

It's too bad most legal teams for TS people know little about Intersex conditions.

Probably better that attorneys who practice in this area of law develop a pool of expert consultants who have the time and expertise to keep up with the science, psychology, and sociology that comes to bear on these cases.

Wait a minute - the statute says that a husband and wife cannot be witnesses against each other - what does it matter whether the alleged act occurred before or after the marriage? Of course, if the state of Hampshire does not recognize Spade's marriage to O'Shaughnessy, then it does not recognize his marriage to Archer, and the bigamy charge, at least, falls apart. So bigamy's out the window.

This is where it gets hazy for me. I may be reading something into the priviledge statute that's not there.

Can I commit an act which is illegal and witnessed solely by someone with whom I may marry but have not yet married, and subsequently marry that person with the aim of availing myself of spousal privelegde?

The spousal privilege statute here says nothing about intent. But was there ever any marriage here to anyone?

Well the 800 pound gorilla that I'm desperately trying to ignore is that unless Hamphire either recognizes Spade's sex as male or recognizes same sex marriage there is no marriage to anyone.

The defense for the bigamy charge is that no marriage existed.

If there is no marriage then there is no spousal privilege.

The defense for criminal impersonation would still be that there was no intent to injure or defraud - Spade was up front with his gender history.

The defense for statutory rape would be (depending on dates of birth) that the statute unconstitutionally treats same sex couples and different sex couple unequally.

The defense for criminal fraud has me stumped. Spade was slippery with the facts on his application for a marriage license.

The defense to the criminal impersonation charge is in the phrase "knowing it to be false." If he believed himself to be male, then it could be argued that he did not "know" that stating so on his marriage license application is false. The judge in the Sandy Gast case accepted this argument. (See link in the original post for the Sandy Gast case)

But is there some medical or surgical intervention requirement to justify the defendant's belief? Could just anybody make this claim successfully, or only a "transsexual".

I think the same question must be asked of the criminal impersonation charge.

That's the thing, I don't know. I started out with this exercise taking Sam's claim to be male at face value (which if you had been looking around inside my brain is not something I would have done before my time here at Bilerico).

I've been trying to digest the Harvard article. I find myself wanting to discuss it real time. I pose questions to my cat, but she has very few answers.

The thing that strikes me though is the issue of consent. My background in health research puts a lot emphasis on informed consent with informed being the operative condition. The friction between feminist theory (which from what I read in the article is fairly close to my own ideology of complete disclosure) and queer theory which embraces a more shall we say "flexible" approach to consent adds to my tentative approach to the questions at hand.

I guess in its most elemental form, consent to sex.

The Court ruled, among other things, that “there can be absolutely no doubt that leading a woman to offer herself and the sexual and emotional satisfaction that the man derives from this are within the scope of ‘benefit’ in the law’s sense.”50

Had Kobi disclosed as had Sam his gender history this may not been a point of contention.

If the issue at hand is fraud or impersonation I would propose that what who knew and when is pertinent.

So is someone "passing for white" committing fraudulent deception? What about if they "don't look Jewish"?

I don't know, Zoe. Are they? I suppose it depends on the context.

If I needed a Jewish mother for my children I suppose it would make a difference.

Genetically I'm a liberal southerner... I'd keep racial secrets through the grave.

For me this whole thing isn't a manifesto, but a learning opportunity.

However, if you want to take this to the personal, by not telling me things you discount my ability to be accepting.

Sorry, I was just posing questions.

For example, it is no longer acceptable for, say, a member of the Aryan Brotherhood to claim that fraud was involved if his partner had an African-American great grandmother.

50 years ago though, in certain states, it may have been. I don't know the caselaw.

This question arises in Greeley over the alleged murder of Angie Zapata, where the defence has claimed intolerable provocation. After the killer sexually assaulted(by grabbing her crotch) the victim, he became enraged.

For various reasons, this defence may be barred because it was by his own act that he deliberately sought provocation, but the question still stands. Many commenters on the various Colorado newspaper articles have regarded the killer as a rape victim who should go free.

BTW I was born in the UK, so am a highly mongrelised critter, with a dozen different ethnic groups in my ancestry. And to my astonishment, when I visited Israel two years ago, I found out that as my mother's mother's mother's mother was Jewish, so am I technically.

Who knew?

Zoe, I think my answer came off as snotty when I didn't intend for it to do so. I took your questions as that - questions. So it's me to say sorry.

I'll save your apology for the first occasion that you do something worth apologising for, Greg. There was no need to here. Thanks, anyway!

Dana Beyer | April 14, 2009 2:02 PM

Welcome to the tribe, Zoe. Happy Passover!


I'm still not sure I'm worthy of being a Red Sea Pedestrian though.

OTOH if "Fall Seelowe", the invasion of England by the Nazis had been successful, my mother would have gone to the gas chambers, so maybe.

I tend to dress very conservatively - black top and skirt - so when in Israel I was constantly being taken for one of the more traditional Jewish women who dress similarly. Sometimes with hilarious results, as my Hebrew is limited (at best). I guess you could say I had "passing privilege".

Consent to sex, as Greg suggests, cannot be the issue here. None of the statutes involve sex, except for the statutory rape charge, and that explicitly avoids the concept of consent. Sex with an underage person is a crime regardless of consent.

Some juridictions have a "rape by deception" statute, but that was not charged in this case. It would pose an interesting question if it were. Such cases are always controversial. Here's a new items about one such prosecution in 2007 that failed: http://www.thefword.org.uk/blog/2007/05/sex_by_deceptio

While the race analogy that Zoe suggests is a tempting one, the main point of the article by Aeyel Gross cited in the main post is that lying about one's gender is a prosecutable offense.

I tried to Judo the argument by assuming that the sex of the defendant was not in question, and giving an overview of some of the issues.

Basically, there is not enough information given in the initial post to determine what sex the defendant is in the state of Hampshire.

That a Justice of the Peace married him would indicate that he probably has a male birth certificate, or equivalent documentation adequate to prove his identity as a man. But as mentioned in the Sandy Gast case in Kansas, and In Re Marriage of Simons in Illinois, and In re Marriage of Nash in Ohio, not only do some states not recognise Birth Certificates from other states as proof of sex, they don't always recognise their own.
From the Nask case:

In her dissenting opinion, Christley wrote, “A person reading the above examples of legislation and judicial decision making would be appalled at the generalizations and outright ignorance used by courts and legislatures to justify obviously unconstitutional laws.”
A fair summation.
The Citizens for Community Values in Cincinatti have an interesting view:
Langdon said he and his clients are willing to accept same-sex marriages involving transgender people marrying someone who was born the opposite sex, not the sex they assume, as the trade for stopping transsexuals from marrying based on their modified sex.

In such an arrangement, Smith is married to attorney Randi Barnabee, a woman born male.

“Sex for the purposes of marriage should be based on birth sex, not modified sex,” said Langdon. “I’m troubled by the idea of transsexuals. We need to be bound by the principle that sex is determined by the creator at birth.”

Anyway, it's clear that if the defendant has a male BC, then following Gast, they could not be proven to have acted fraudulently, even if the court decides that the defendant is female.

Just to make things interesting.... there are even more complex situations, like my own.

My UK Birth Certificate says "boy". I can't get it changed because my exact Intersex condition is idiopathic, and only some Intersex conditions, not others, allow change of BC. But as I'm Intersexed, I can't go through the normal transsexual stream either, Intersexed people are excluded from that.

Medically and biologically, I'm female, so my UK passport says "F". As do my Australian immigration records (the cardinal document determining my sex in Australia) and my Australian passport.

I do not qualify as having had sex reassignment surgery though, as I was diagnosed as female (well, more female than male) due to the natural changes before treatment.

Should I emigrate to the USA, it would be fascinating to find out what legal sex I am from a Federal viewpoint, let alone the various states and counties.

I'll jump in. This looks like fun.


The statute says: "knowing he has a husband or wife." Spade told O'Shaughnessy before they married about how he had already been divorced. He put himself at risk of being rejected by a known "diva" by mentioning his gender history, so there's no reason to believe that he was attempting to deceive her by saying he was divorced.

I'd also hunt down those improperly filed papers and find the mistake made to prove his intent to divorce beforehand and see how minute his mistake was, to show that a reasonable person would have believed to have been divorced after filing the paperwork. Not the exact standard asked for in the statute (which only requires that Spade not know he was still married), but if this trial goes to jury it couldn't hurt to show how minute the error was or what response he got from his previously-filed paperwork.


I'm guessing the "fraud" here is that Spade said he was male when the state doesn't accept that. Then again, the statute requires for him to lie "knowing the same to be false." If he was previously married to another woman (Ms. Archer), then he had every reason to believe that he was legally male.

If anything, the old French argument should apply, "If what I did was really illegal, then you should have arrested me the first time I did it." Just kidding, but if the state accepted Spade's first marriage to a woman, not only when he went through it but also accepted it as legit to prosecute him for bigamy (oh, wait, these charges contradict themselves), then the state can't turn around now and say that Spade isn't really male and can't marry a woman.


I'm guessing this stems from Spade "impersonating" a man to O'Shaughnessy to marry her.

Key phrase is: "with intent to injure or defraud another." There is no intent, or even possibility, that he was trying to injure her or defraud her. Consider:

1. She's the one with the violent and vengeful ex, which would put Spade at more risk (apparently Spade's vengeful ex only uses the legal system to exact her revenge)

2. Spade, w/ his $7B fortune and rare South American stamps, is most likely far wealthier than O'Shaughnessy. The money would flow in one direction here.

3. Spade told O'Shaughnessy he had a trans history. 'nuf said.

4. Spade searched for O'Shaughnessy and was distraught when he couldn't find her (police can testify to that as well since that's how they found him). It shows he cared about her and had no intent to injure her emotionally.

Statutory rape

Here's where things get complicated. Can they claim husband/wife privilege just on this charge and not the others, since bigamy is included in the others? If so, she doesn't testify and there's no proof that they actually had sex before she was 18. That "love affair" may have been tempered with an abstinence pledge (haha).

If not, and since we already have her testifying on several of the other charges, then we argue that they are w/i the 4-year exemption. Spade has already been recognized as male by the state when they said that his marriage to Archer was legitimate, but even if they say he's female, then we argue that Lawrence means that they can't use this "Romeo and Juliet" law just for straight couples.

I actually followed the Limon case pretty closely when I was in college for a few papers in my critical theory class, so, if I know the history correctly, the Iowa supreme court originally didn't want to challenge their Romeo and Juliet law. But the defense appealed to the Supreme Court, who refused to hear the case but pointed them to Lawrence. This got the Iowa court to turn their position on the basis of Lawrence.

So we argue it from there, and O'Shaughnessy can testify on everything.

Does that make sense to anyone besides me?

As much as anything does when it comes to Transsexuality and the Law.

You know,if this was one of Geoffery Robertson's famous "Hypotheticals"... after the court finds that Sam Spade is legally female based on his chromosomes, then Brigid O'Shaughnessy's parents will tearfully confess that she was born Intersexed, and was surgically altered to a female form at age 2 months. That she is in fact, genetically male. Thereby making the previous marriage to Iva Archer void as a same-sex one, but the marriage between Sam and Brigid perfectly legal. It's just they had the genders muxed ip.

(Then later, we find that Iva Archer actually has CAIS and is also "genetically male", but we won't go into that....)

Remember, I'm the gal who had a 20 month legal fight just to get a passport, as the Australian Passport Office couldn't decide what sex I was, so refused to issue me one! And while my UK Birth Certificate says "boy", my UK passport says "F".

We're real people. This kind of thing genuinely happens to us.