Dr. Jillian T. Weiss

Your ENDA Ran Over My DOMA

Filed By Dr. Jillian T. Weiss | February 24, 2011 9:30 AM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: DOMA, ENDA, marriage equality, Obama Administration, Pedersen, Windsor v. United States

I was trying to come up with a snappy title for Part II of this posting on the U.S. Attorney General's announcement that the Obama Administration would no longer defend DOMA in court, (Bil has banned me calling anything "Part II" anymore as it's too boring). I was reminded about the old joke about the dispute between the Christian and the Buddhist, with the former complaining that "your karma ran over my dogma." Because the Holder DOMA Memo, as I have now dubbed it, is filled with sly, ironic humor, as shall soon be shortly revealed, I thought it only fitting to add some humor of my own.

As I explained yesterday, the Obama Administration's view of DOMA is that it should be subject to "heightened judicial scrutiny" under the equal protection concept embodied in the Fifth Amendment. Under the highest form of judicial scrutiny, known as "strict scrutiny," laws are usually found unconstitutional unless they have a really compelling reason.

Why does the Obama Administration think that DOMA should be subject to the stricter judicial scrutiny, thus making them unconstitutional?

Because of ENDA, among other things. Remember ENDA?

Oh, the irony of it. ENDA, the putative Employment Non-Discrimination Act, would have prohibited employment discrimination based on sexual orientation and gender identity. It was supposed to be first on the list of legislative accomplishments of the Obama Administration for the LGBT community, according to an early speech by a key Administration official. But it died a lingering death, with only whispers of support from the Administration here and there, while Don't Ask, Don't Tell repeal surged ahead, then behind, then ahead again. Trans people were particularly sensitive to this game, as ENDA definitely had the votes in the House, and probably enough votes in the Senate if the Administration would have twisted a few arms, and it would have protected trans people from employment discrimination, while even with Don't Ask, Don't Tell repeal, trans people are still banned from the military. O tempora, O mores, O conspiracy theories!

In any event, here is the marriage issue, again politically surging ahead of trans rights, about which I have certainly whined before, and will again. But I must admit that, upon seeing the devilish use to which the Holder DOMA memo put the denial of ENDA, fastening the undead coffin of evil marriage inequality with nails of ENDA, I was tickled.

More about that later. First, back to the memo, where further delicious ironies await us.

Standard of Review

Standard of review is a strange concept. As Projector Zoe Brain explained in her comment on Part I of this posting yesterday:

...It seems to me that the different levels of scrutiny can be described simplistically as:

Rational Basis - Discrimination is assumed innocent until proven guilty.

Intermediate - Discrimination is guilty if found so on the balance of probabilities

Strict - Discrimination is assumed guilty until proven innocent.

She is quite right in making an analogy to the standards of proof (beyond a reasonable doubt, preponderance of the evidence, etc.)

I have explained this before in regard to the case of a transgender employee, Vandy Beth Glenn, who was fired from her job as a proofreader with the Georgia legislature, on the basis of gender transition:

Now we get to a concept that has crossed the eyes of generations of law students: the "standard of review."

What this means is how much evidence do you have to have, and of what quality?

The "standard of review" is just like "burden of proof." In other words, you all know from watching TV that, in a criminal trial, the prosecution has to prove the crime, and not just a little bit. They have to prove it "beyond a reasonable doubt." That means that if jurors have any doubt in their mind that the defendant did it, any reasonable doubt, then the person has to be declared not guilty. The standard for reviewing the evidence is "beyond a reasonable doubt." It's a tough standard to meet.

By contrast, in a civil case, like one involving a personal injury or a contract, the standard for reviewing the evidence is "preponderance of the evidence," meaning that it's enough if the evidence shows that the charge is more likely than not. It's an easier standard to meet.

In a constitutional case, when the judges review the actions of a government official or the words of a law to decide if they violated the Constitution, the evidence must show that the classifications used by the Government are rationally related to a legitimate government purpose.

In other words, the Government can't just do crazy stuff and get away with it. It has to be related to some legit purpose.

But that's the minimum standard. It's easy to come up with some legit purpose. For example, "public safety" is the perfect catch-all. Just cite "public safety," mention 9/11, and the judges will stand up and salute pretty much every time. Government acts judged under the minimum standard of review are usually given the OK by the courts.

For certain kinds of Government actions, specifically those based on race, the U.S. Courts have been very suspicious since the 1950s. A lot of Southern States had laws making distinctions based on race, and they came up with some pretty ingenious justifications for them. So the courts said they weren't going to go with the minimum standard for cases like that. No siree, they were going to strictly scrutinize Government acts involving race, and look to make sure that those laws were narrowly tailored to meet a compelling government purpose.

Government acts judged under the strict scrutiny standard of review are usually found unconstitutional by the courts.

But the U.S. Supreme Court got very nervous about the standard of review used for Government acts based on sex and gender. After all, they didn't want to invalidate all such laws, because there is a significant difference between men and women. So they came up with an "intermediate" level of review.

In a sex discrimination claim under the Equal Protection Clause, the Government classification must be "substantially related to an important government objective."

The words of this formulation aren't the most important thing. The most important thing to understand about this "intermediate" level of review is that it pretty much allows courts to do what they want in terms of upholding or, conversely, invalidating the law. It's not a rubber stamp, but it's not an automatic reject button either.

Thus, the question before Judge Story was whether giving Ms. Glenn the boot was substantially related to an important government objective. In fact, some courts have said the government objective should not only be "important," but even "exceedingly persuasive." The law is a word game.

In other words, did Brumby [the manager] have a good reason for kicking Ms. Glenn [the employee] out? Not just any reason, but an "important" and "exceedingly persuasive" one, though it didn't have to be "compelling."

I have also explained "standards of review" using jello and asparagus, for those of you who would like a different analogy.

Until now, law that discriminated based on sexual orientation was judged on the lowest standard, meaning that as long as there is some possible hypothetical rationale for the law, it's OK. Thus, as long as there is some rational basis, any rational basis at all for DOMA, and that rationale furthers some legitimate governmental goal, DOMA is constitutional.

The Holder DOMA memo says that the Obama Administration believes that test is too low a standard for DOMA.

But why is it suddenly too low a standard? It was a perfectly fine standard, according to the Obama Administration as late as January of this year.

Sexual Orientation As a "Suspect Classification"

Achieving "suspect classification" is the holy grail of civil rights litigators. When a law discriminates based on a "suspect classification," like race, then the courts must scrutinize the law much more carefully, and that is likely to make such laws unconstitutional and unenforceable. The reason that race became a "suspect classification" is that it involved a discrete and insular minority, which tended to seriously curtail the operation of the political processes ordinarily to be relied upon to protect minorities. Are LGBT people a discrete and insular minority who don't have access to political process to protect them? Until now, very few courts have thought so.

But in the case of gender, the US Supreme Court has found that laws that discriminate against women on the basis of gender are subject to heightened judicial scrutiny. Women certainly aren't a minority; they're half the population. Nonetheless, the Supreme Court held that sex, like race, is an immutable characteristic determined solely by the accident of birth, which violates the basic concept of our system that legal burdens should bear some relationship to individual responsibility. Over the years, the test for "suspect classification" status has undergone mutation. The Holder AG Memo states the current test as follows. Follow along and see if you think this describes the LGBT community:

(1) Whether the group in question has suffered a history of discrimination;

(2) whether individuals exhibit obvious, immutable or distinguishing characteristics that define them as a discrete group;

(3) whether the group is a minority or is politically powerless; and

(4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's ability to perform or contribute to society.

The Holder memo says that each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. It mentions that there is a significant history of purposeful discrimination against gay and lesbian people by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today, thus satisfying prong 1 of the test above. "Indeed, until very recently, states have 'demean[ed] the[] existence' of gays and lesbians 'by making their private sexual conduct a crime,'" citing the famous 2003 case of Lawrence v. Texas, in which the Supreme Court struck down the sodomy laws.

You know, Justice Scalia saw this coming. He said that once society recognizes that gay people have a right to exist, that would create a slippery slope leading to recognizing that gay people have a right to get married. I am constantly amazed by the number of times I agree with Justice Scalia. (Legal eagles will note that I sleep with Justice Scalia's quote from Oncale about the evils of legislators under my pillow each night.)

Next, the Holder memo discusses the second prong of the test above, citing, amazingly, uber-conservative Judge Richard Posner's execrable book, Sex and Reason. As Bill Eskridge (if I may be so bold; we did chat for five minutes oncst), a professor at Yale Law School whose work truly deserves the title of "genius," has noted, Judge Posner "uncritically accepts the sociobiological story of men-as-hunters, women-as-breeders that has been largely discredited in the academic community." Prof. Eskridge was also struck by Posner's "fascination with male sexuality -- whether homosexual or heterosexual -- and lack of interest in, or insight into, female sexuality." He also noted that lesbians are virtually invisible in a book that seems preoccupied with gay males. What ticked me off most about Posner's book was that it explicitly analyzed dating and marriage as a series of stark economic calculations worthy of Mrs. Bennet. It's a truth universally acknowledged that a single man in possession of a brain like that must be in serious want of a date.

So imagine my joy when the Holder Memo cites Posner for the proposition that "a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable." There are many other works that could have been cited: Simon LeVay's work, for example, but no. It's Posner, the uber-conservative. Let the fundies fight against Posner! The fact that I find the man's work a bit lacking doesn't mean he's not incredibly smart and knows how to back up his points ten ways from Sunday.

The memo also cites the Don't Ask, Don't Tell repeal law as standing for the proposition that "it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination." This last proposition is surprising. It doesn't seem to be obviously related to prong 2 of the "suspect classification" test, which is about whether sexual orientation is an "obvious, immutable or distinguishing characteristic." I suppose that they threw it in there to counter the point that prong 2, as stated by the Holder memo, is broader than really warranted, and that there are lots of groups with obvious or distinguishing characteristics, like kleptomaniacs and circus clowns. (I'm not suggesting that these are appropriate analogies to sexual orientation, but rather are examples of "distinguishing characteristics," unrelated as they are to sexual orientation. Though I always did have my suspicions about Bozo.) To counter that obvious argument in advance, they are suggesting that the "fairness" of the discrimination is part of the equation, and that sexual orientation cannot be changed, only "hidden."

I have serious questions about the science that purports to declare sexual orientation an in-born characteristic, and I think many others do too. Thus, it is wise that the Holder memo does not go there with the likes of Simon LeVay. But that the characteristic is unchangeable I have no doubt, and, I think at this point in our society, very few rational individuals have any doubt of that either.

On to prong 3 of the Holder test. (Isn't legal reasoning exhausting? No wonder students are dropping like flies in my classes.But I do love it. And here's the ENDA part!)

Third, the adoption of laws like those at issue in Romer v. Evans (the striking down of the anti-gay Colorado constitutional amendment blocking anti-discrimination ordinances on sexual orientation), and Lawrence (the striking down of the sodomy laws), the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers."

Hoist on their own petard, the biter bit -- if you strike me down, Luke, I shall become more powerful than you can possibly imagine -- these sum up what's going on here. By managing to put the kibosh on the Employment Non-Discrimination Act, the Republican minority demonstrated, with considerable force, I might add, that the LGBT community doesn't actually have a whole lot of political power. Oh, we have more than we had ten, twenty, thirty years ago. But simple employment rights are denied us. To counter the argument that, "hey, the gays got Don't Ask, Don't Tell repealed and the hate crimes act signed into law," the memo goes on to note that it's not necessary to show that the group has zero political power. It uses an analogy to women's rights, wherein the Supreme Court noted that women had experienced historic discrimination and qualified for suspect class status, even though at that point they had received Title VII employment protections almost a decade earlier. The LGBT community doesn't even have employment protections, so we're in a worse position than women were when they were given suspect class status.

Don't get me wrong; I'm not at all glad that ENDA didn't pass. I'd much rather use my political power than rely on the fickle Constitution. And there is a counterargument to the Holder ENDA argument, found in the decisions of the early 1970's on sexual orientation discrimination, which said...but no, I'm not giving away any secrets. Go look it up. :)

The memo goes on to note that there are other federal Circuit Courts of Appeal that have not used suspect class status for sexual orientation. Indeed, none of those that have analyzed the matter have done so. But the memo notes that these were pre-Lawrence (the Supreme Court sodomy decision), and a lot of those decisions holding that sexual orientation doesn't deserve "suspect classification" relied on old law that's no good after Lawrence. In addition, some of those older cases denying suspect classification to sexual orientation also made points that "we do not believe can be reconciled with more recent social science understandings." That's a bit vague, but I do agree, and certainly this proposition can be backed up. It also counters the argument that recent decisions in favor of gay rights have used the lower "rational basis" standard for reviewing legislation. It notes that those decisions never actually came to a decision on whether the higher standard could or should be used, because they found that those laws failed even under the lowest standard. Thus, argues the memo, the fact that these courts applied the lowest standard isn't binding on either courts or the Obama Administration.

Some might quibble that the Administration could have done this before, even in federal Circuits where there is precedent to the contrary. After all, lawyers make arguments all the time, requesting that courts distinguish away what seems like binding precedents from higher courts, or rule that those binding precedents have been undermined by later, related developments in the law. The memo carefully counters this by noting that there is a difference between being able to make an argument, and considering that argument "reasonable." They could have made the argument, yes, but it was too difficult to back up and call it reasonable. I get it. I am not going to look a gift-horse in the mouth.

What Standard of Review Is The Obama Administration Calling For?

It's important to note that the Holder DOMA memo is not calling for the strictest standard of judicial scrutiny, the so-called "strict scrutiny" test. Under that test, proponents of the law must prove that the law serves a "compelling" governmental purpose, and that the law is narrowly tailored to achievement of that objective. Under that standard, almost no law discriminating on the basis of sexual orientation would be constitutional. Instead, the memo calls for the application of "heightened" scrutiny, sometimes called "intermediate" scrutiny. Under this middle-range test of constitutionality, the government must establish that the classification is "substantially related to an important government objective." It's a bit of a word game, but that is what the law is. This is similar to the standard used to analyze laws discriminating on the basis of sex (although that standard sometimes calls for an "exceedingly persuasive justification," a phrase not included in the Holder memo).

Under the intermediate standard, according to the memo, the justification for the law must describe "actual state purposes, not rationalizations for actions in fact differently grounded." This is important, because proponents of DOMA have come up with all sorts of rationalizations for the law that Congress, in its lengthy descriptions of why DOMA was needed at the time it was enacted, never used, and never apparently thought of. That's called "post-hoc rationalization," and it's a no-go under the intermediate scrutiny test. We saw this most recently in the California federal marriage litigation of AFER and Olson & Boies, where the legal team defending Prop 8 came up with all sorts of stuff about parenting deficiencies and teaching inappropriate sexual subjects to kids that had nothing to do with the reasons given for Prop 8 when it was originally proposed and enacted. This ties the anti-gay legal team with ropes of steel to the legislative record when DOMA was enacted, which is extremely thin in terms of reasoning that a modern court could accept.

As the memo notes, the legislative record of DOMA includes lots of moral and religious disapproval of gays and lesbians, which the Supreme Court, in other cases, has specifically said cannot under any circumstances form the basis for a law discriminating on the basis of sexual orientation. Thus, by noting that post-hoc rationalization may not be used, the memo effectively cuts short a lot of the hyperbole and rhetoric that came up in the Prop 8 cases.

None of this may convince the Supreme Court when this issue ultimately comes to it. After all, there's kind of a 5-4 split on the court in terms of conservative vs. liberal ideologies, although there's also a swing voter there who is often quite sympathetic to gay rights. But whether he'll go for the suspect classification reasoning is open to doubt. But this memo doesn't have to convince the Supreme Court. It simply needs to create a clear and logical argument for why the Obama Administration is declining to defend a U.S. statute in court, and answer the question "why now?" That it does, and quite clearly and concisely (as legal memos go).

Also interesting is that the memo distinguishes between "professionally responsible" arguments and "reasonable" arguments. In other words, a "professionally responsible" argument is one that a lawyer can make without the court calling it "frivolous" and imposing fines or jail time on the lawyer making it. The past Administration arguments defending DOMA were, apparently, non-frivolous ones. The Administration was not wrong for making such arguments (implies the memo). But even though there is a non-frivolous argument to be made in support of DOMA, such an argument is not a "reasonable" one. And here's the money quote:

Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional", as is the case here.

This is quite the blockbuster statement. Until recently, the President has never said that DOMA was unconstitutional, only that it was discriminatory. The implication was that he considered it constitutional, although the Administration was careful never to say so directly. Here at last, the President says that DOMA is an unconstitutional law. Wow.

Lastly, the memo notes that an argument is due in the Windsor and Pedersen cases on March 11, 2011. Boeher, et al. have about two weeks to get their pencils sharpened and their briefs ready.

And a delicious end to the memo:

Please do not hesitate to contact us if you have any questions.

Sincerely yours,

Eric H. Holder, Jr.
Attorney General

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Fantastic summary! I think you are completely right with the "wow" at the end. The President of the United States (with the help of his AG) believes DOMA to be unconstutional! WOW

That's right, Patrick, it's a wow. Although many nay-sayers point out that he could have done this before, and they're right, we must encourage this good behavior.

Thanks so much for the thorough analysis. It's a lot for the community to digest, but I agree that this was a bold and laudable move by President Obama. Let's hope that Courts take a sympathetic cue from the administration when the flood of cases hits them over these next years on the spectrum of orientation/gender/sex issues.

Which reminds me, Drake. I totally forgot to talk about the relationship between sexual orientation being a suspect class and gender identity or expression.

You have any thoughts on that?

Dr Weiss, I love the article.You have shown how the more roadblocks NOM, AFA, FRC, and Repubs place in front of us, the more evidence we have to demonstrate that we deserve suspect class status and heightened scrutiny! I believe that Maine ballot referendum is a perfect example, even though the legislature independently passed a marriage equality statute, NOM et. al. was able to get a ballot amendment passed revoking it. You also did a great jobof showing how the standard of review reached in previous cases may be invalid in light of more recent SCOTUS cases, and even scientific research literature released since then. I hope the second circuit does a more thorough and thoughtful re-eval of the standard if review in these DOMA cases. Thanks again Dr.
ps... I don't know why they are dropping like flies; I would probably enjoy studying legal arguments in your class.

Thanks for your kind note about my class, Mike, but think back to when you were 18. Did you have a serious hankering to closely analyze texts for hours?

That gave me a chuckle, I don't think I could have concentrated on anything longer than 5 minutes when I was 18! It sure would be fun to at least co-write a paper or two bc legal issues were not part of my SW training.

That gave me a chuckle, I don't think I could have concentrated on anything longer than 5 minutes when I was 18! It sure would be fun to at least co-write a paper or two bc legal issues were not part of my SW training.

Great post.

I'd still like to know what they mean by saying that the government will still be a party to cases involving DOMA, will still enforce DOMA, but won't defend it in court. How does that work?

Also, does this mean that Holder considers the arguments filed by Justice in the Massachusetts cases' appeals to be reasonable? It's hard for me to see it that way, but I guess it's a lawyer's game.

I think what they mean by saying that the government will still be a party to the cases is that they are not technically filing a motion to withdraw from the cases, and thus will remain a party listed on the court's docket for that case. When the time comes to argue about whether the law should be enforced, the Obama Administration will probably file a one sentence brief saying that the Obama Administration is not opposing the relief requested by the plaintiff. At the same time, they're not going to give benefits to same-sex couples without a court order to do so.

I'm not sure what this means in the Massachusetts case, and in fact, GLAD issued a statement saying that the memo's effect on the MA case is unclear, and they will continue to prosecute it until it is resolved in their favor. I'll have to take a look back at the arguments in the MA case to decide what I think the effect might be. It's on my to do list, right after the 57 other things I have to do tonight.

Thanks. That was my question too!

As I've said before, ENDA will be the last of the major LGBT rights efforts to be achieved, because it personally affects more non-LGBT people than DADT (the fewest) or DOMA.

Caprice, I would think that a bill that has more constituents would go sooner than a bill with few constituents. I'm not sure I understand your reasoning, though I can see the sad reality of history before my eyes.

I don't think she is talking about the supporters, but rather the opponents?

I wonder if she means b/c of The scope and implications of ENDA (millions?) are much more far-reaching compared with DADT (thousands?) and DOMA (tens of thousands?). One complaint by opponents of ENDA has been that it was too vague and ill-defined, could be most anything you want (I think it was the typical bullshit of 'I don't like the ppl who would have their rights protected but I know I will get hammered if I come out and say *that*', personally, but whatever.)

Oh, you're right, Carol, I misread Caprice's comment. Sounds like a good point, Caprice.

Thanks. Yes, Carol has it exactly right.

Angela Brightfeather | February 24, 2011 9:18 PM

"because it personally affects more non-LGBT people than DADT (the fewest) or DOMA."

A very suspect statment indeed. With perhaps 50,000 post-op Trans people mixing in with the non-LGBT people out there, I doubt very much that ENDA would affect them very much at all, outside of living in fear that they might end up in the same bathroom with a Trans person.

Add to that, that most of those people who are post-op don't go around with signs on their backs confirming their operational status, I would say that a large majority of that 50,000 Trans people are wallpapered enough that they aren't even under suspicion of affecting any non-LGBT people in real life, every day contacts.

If one might take all the non-LGBT people who are affected by SSM, you would lose count quickly.
From wedding planners, to caterers, to clergy, to so many professions associated with marriages, and on to school groups, etc. SSM will be touching the non-GLBT public far more than a few people using what others percieve as the wrong bathrooms across this country.

Even DADT might affect more non-GLBT more directly than ENDA. With over a million people in the military, including Reserve and NG people, one would think that they are directly affected by DADT and that the numbers would be much more than those affected directly by ENDA.

Perhaps that is the answer to the ENDA problem. It didn't pass, because no one was chaining themselves to fences or making non-GLBT people pay attention to the situation and the need for ENDA. While we were lobbying politicians and hoping they would pay attention, perhaps we should have been standing outside of state unemployment offices with signs instead.

Angela, I think you're right that we should have been doing more direct action sooner, instead of assuming that someone else was going to come charging in on a white horse to save us. There's no one coming to save us.


ENDA is not for trans ppl only, it was for cis-GLB ppl, too. In fact, it was mostly supported for cis-GLB ppl only, and would be law already if it werent for the trans ppl.

And I think when you add up all the companies they currently work for without protection, and all the ppl they work with, and come in contact with in their daily jobs, it's a lot of ppl. Prolly even more than the wedding industry.

So, once DOMA is dead are there any other rights the LGB community needs to take care of before we work on LGBT issues?

Well, Dana, there's UAFA, certainly, and gay adoption, and LGBT History Month, and, uh, wait, what's this...the Defense of Our Dear Pets Act, and the Leave No Party Unhad Act, and, the Lady Gaga Memorial.

Don't worry, Dana, they know we're in here, and I'm sure they're coming for us. Just try to hold on, and don't make too much noise, or they might get angry.

I don't know if this is off topic or not but this is not about a work at home job offer that pays $77/hr. My question is how the sharply defined gender roles between partners as "husband" and "wife" in joint tenancy by entirety agreements is resolved where same sex marriages and civil unions are recognized. Does this gendered language get changed for same sex couples who wish to have the same survivorship rights as heterosexual married couples? I am curious about this as a transsexual woman who is ostensibly recognized as female but not able to have the wording changed on a legal agreement that involves my spouse and I to reflect that without losing our rights as a married couple. I live in a state that does not recognize same sex marriage but might in the future.

I can hear the collective groans coming from the various quarters regarding issues of privilege. I don't think that is the point. There are plenty of gays and lesbians who do not have heterosexual marriage privilege but have economic privilege. Of course, a huge portion of trans people have no privilege whatsoever and I understand the gripes coming from that quarter. Focusing on one issue or the other does not dissolve the other problems that exist. I understand how that works out in de-facto reality. I don't think it serves anyone, however, to have implications involving the law turn one's life into a travesty making it impossible to function effectively in life because the implications of one's personhood is never taken seriously.

I think the way marriage is resolved in terms of equality is an important one for transsexual people who understand the necessity of being recognized in their re-assigned sex. Of course, the larger issue is how fair marriage is to everyone, whether one chooses to be married or not. I don't think that is a small matter but as long as specific rights are guaranteed to married couples and marriage is one of the most critical areas of law where sex is defined the issue of marriage is, I think, a critical one for all people who have a transsexual background, whether married or not and whether if married, in a same sex marriage or heterosexual marriage. There could be more sensitivity among gay and lesbian groups where that is concerned. The marriage issue is a very complex one with many implications for transsexual and intersex people that, I believe, go unnoticed in a push to achieve something tangible, politically.

An interesting legal question, Edith, though not directly related to DOMA. Tenancy by the entirety, for those not familiar with the legal concept, is the idea that when a husband and wife buy property together, their interests in the property are automatically merged, so that there is an automatic right of survivorship if one dies, and there are many other legal consequences, such as the fact that neither party has a unilateral right to sever the tenancy, and it can shield the property from creditors of only one spouse. Often, certain language must be used in the deed, and I'm guessing that in the state in question, the use of the term "as husband and wife" is required.

Anybody out there know what they do in states with both tenancy by the entirety and same sex marriage, if the term "as husband and wife" is otherwise required?

Yes, Dr. Weiss,

I suppose my question is not directly related to DOMA and even marriage as it relates to sex - same or opposite. Even though my question isn't directly related to DOMA, I wonder how DOMA and marriage equality, especially where it is related to sex will intersect with other areas of the law. I think my question relates to gendered constructions in the law based on assumptions regarding sex. I don't think legal same sex marriage would necessarily preclude these gendered constructions which would not be as critical to someone who did not change sex assignment as it would be to someone who has.

The difference between sex and gender is dependent on who is in charge of the definition. There is one law that will never be changed or found unconstitutional - the one pertaining to unintended consequences. If gendered consructions are not considered of consequence in the law then gender isn't either. Where marriage is involved, the question of sex is constantly hammered home. The question of sex in marriage is independent of ability to perform sexually. Why should a person of transsexual history feel anything but patronized when told "gender is not about sex?"


I hope I'm off topic.

Looked into Posner, Sex and Reason, Chicago School of Economics outlook, etc.

"Male sexuality"? Is that a red flag?

Well, I stayed up very late and read the Eskridge paper looking for a place where Posner mentions any specific sexological research, fearing that I was going to find a heavy reliance on Kurt Freund's ideas about male sexuality and erotic targets. All I got was: 'Judge Posner "uncritically accepts the sociobiological story of men-as-hunters, women-as-breeders that has been largely discredited in the academic community ' and Eskridge's rebuttle which seemed largely based on Foucault's History of Sex and how highly valued social constructionist ideas are as opposed to those nasty essentialist ideas about sexual orientation being inborn.

But, then, in your OP you go on to say: "there is a significant difference between men and women." and you seem to accept that: "Nonetheless, the Supreme Court held that sex, like race, is an immutable characteristic determined solely by the accident of birth". What is the significant difference between men and women?

You imply that you accept that sex is an "immutable characteristic." In other words "inborn" as in an essential characteristic. Is that not "essentialist"?

Is it not disingenuous not to emphatically state that you do not believe sex change is possible and that "transgender" or "trans" people are essentially the males and females they were born and assigned as, that they don't even comprise a third sex, and that the only things that differentiate "trans" people from others is the way they express their gender, implying that any physical changes are no more significant than tattoos and body piercings?

The whole DOMA issue is about sex definitions. All I hear about in relation to marriage, here, is sexual orientation. It seems to imply there is no hope for transsexual people to be defined as the sex ostensibly legally transitioned to. Marriages that are considered same sex by a transsexual person would be merely that person's fantasy and legally contracted heterosexual marriages by partners with a transsexual history should be declared invalid because they are actually same sex marriages. There doesn't seem to be truth in advertising involved here.

Another thing, there are many transsexual people who visit this site. The concerns of trans people are just as valid as the concerns of transsexual people but it is obvious that they are different. If trans people's concerns are as valid as post transsexual people's concerns it follows that transsexual persons must be as valid as trans person's concerns but it is obvious that post transsexual person's concerns are dismissed as unimportant and not worthy of distinction. Many people have pointed out the concerns of females with a transsexual background do not further the aims of the gay male constituency in the LGBTQ without the other T and without acknowledgement that there is an I, whose concerns go very far beyond behavior and social constructions of gender. The dismissiveness is erasure. I don't believe operative status provides justification for a person to take it upon themselves to decide the needs of others with a similar medical history are unimportant.

Ah Edith, you're the only one who seems to have picked up on my little joke about men and women being significantly different. You've got a lot in your comment, and I don't have all day to respond, though your questions certainly would merit that. I'll confine myself to the question about the standard of review being based on significant differences, and whether these are inborn.

In this post, I quoted myself discussing the Supreme Court's standard of review for sex discrimination, noting that government acts judged under the strict scrutiny standard of review are usually found unconstitutional by the courts. Then I noted that the U.S. Supreme Court "got very nervous" about the standard of review used for government acts based on sex and gender. "After all," I said ironically, they didn't want to invalidate all such laws, "because there is a significant difference between men and women. So they came up with an 'intermediate' level of review."

Of course, irony has little place in legal writing because it is so easy to miss among all the other unintentional ironies and absurdities of the law.

There are significant differences between men and women in our society, but there are also significant differences among races and ethnicities. I don't believe any of them are individual differences in ability based on genetics. Of course, there are average differences that can be quantitatively computed, but I believe these are based largely on social factors, and, more significantly, do not bear on the ability of any single individual.

When a person transitions from female to male sex, or vice versa, they are now, as far as the law should be concerned, a member of the latter.

The importance of this for DOMA and transsexual marriage is that transsexual marriage to someone of the opposite sex (meaning the opposite of their current legal sex) should not be considered same sex marriage, and should be accorded "fundamental right" status and given strict scrutiny, rather than being accorded mere "heightened scrutiny." But I think we're far from the law understanding that.

Well Dr. Weiss,

There is an awful lot I do not understand. I am not educated in the law. I don't really want to be contentious. I started off from the point of view, a while ago, that sex designations were oppressive. I think it would be best if everyone were freed from that oppression. That is probably very idealistic. I am aware of very practical considerations. Sex definitions are trickier than generally understood. One would have to correspond and learn from the experiences of intersex people which go way beyond the range of what the ISNA, now Accord Alliance, throws out there. A lot about transsexual people and transgender people was fairly well understood by Harry Benjamin long ago. I don't think many improvements have been made on what he understood. There have been a lot of distortions, since. I found the Eskridge paper interesting to some degree. I haven't read Foucault or Papa Posner's book. Eskridge looks at only sexual orientation and only looks at that from an historical and very abstract point of view. I only skimmed the paper and the footnotes but that was the impression I got. Our lives are not abstractions.

Thanks for taking the time to reply. Granted, there are many things I do not understand. I've gotta run, too.

Your're right, Edith, about Eskridge's paper. It doesn't undertake a long examination of "Papa Posner's" book (I loved your monniker!). I have a lot to say about that book, but I couldn't find the paper I wrote on it, and I just wanted to include some backup in the post for the idea that his book is ludicrous, and came across Bill Eskridge's paper. I agree with you on the oppressiveness of sex designation. By the way, I'm going to review Kristen Schilt's (sociologist from U. Chi.) new book on Bilerico soon, which talks about that.

Bear with me. This is long, but I think necessary to argue regarding sexual orientation being like sex.

Compare :

"Nonetheless, the Supreme Court held that sex, like race, is an immutable characteristic determined solely by the accident of birth"
Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male." - Littleton vs Prange
I agree that the definition of "sex" is analogous to the definition of "race", and I don't mean that in a good way. When anti-miscegenation laws were in force, someone who was 1/128 African-American would be deemed "white" in some states, and thus forbidden from marrying a "black", and "black" in others (notably Virginia) and thus forbidden from marrying a "white".

We have a similar situation regarding the contradictory state judicial definitions of sex in the USA. As far as I know, no state or federal legislation defines "sex" - something that blows a massive hole in DOMA (and also punctures in a minor way the Civil Rights Act 1964 for that matter). It's left to individual judges to decide, and the differ in their opinions.

In fact, it's worse than that, because some rare Intersex conditions cause what is apparently a natural change of sex. The most common ones are 5alpha-reductase-2 deficiency (5alpha-RD-2) and 17beta-hydroxysteroid dehydrogenase-3 deficiency (17beta-HSD-3) which both can cause a change from female looking at birth to male looking later.

See RE: SALLY (SPECIAL MEDICAL PROCEDURE) [2010] FamCA 237 an Australian Family Court case regarding a girl with 5ARD syndrome seeking permission for sterilising surgery and treatment so she wasn't compelled to masculinise.

The upshot is that sex can change, (unlike race? though that's debateable too).

Legally speaking, as opposed to anything to do with biological reality, transsexual transitions have been regarded in various states as changes of sex, changes of sex for some purposes but not others, or causing no change in legal status at all.

Most caselaw (Lawrence, Littleton et al) assume that chromosomes are definitive, immutable, set at birth, and ignore Intersex cases such as 47XXY or 47XYY as not relevant unless it's been proven that the parties suffer from those conditions. Despite the evidence that ~1 in 500 apparent males are 47XXY, and about 1 in 300 not 46XY.

For example:

PATIENTS: A 46,XY mother who developed as a normal woman underwent spontaneous puberty, reached menarche, menstruated regularly, experienced two unassisted pregnancies, and gave birth to a 46,XY daughter with complete gonadal dysgenesis. -- J Clin Endocrinol Metab. 2008 Jan;93(1):182-9

Unfortunately for those rulings, the assumption that chromosomes can't change is also false. They are changed routinely as the result of transplant surgery. When the transplant is of bone marrow, the new stem cells gradually transform the entire body to the donor's genotype during cellular turnover.

See Bone marrow-derived cells from male donors can compose endometrial glands in female transplant recipients by Ikoma et al in Am J Obstet Gynecol. 2009 Dec;201(6):608.e1-8

I've not seen any of these facts appearing as parts of arguments advanced in courts of law regarding marriage cases. They completely demolish most caselaw on the subject, which have been based on assumptions now not just questionable, but definitely disproven.

The only one that has stood the test of time is the rather fuzzy definition implied by the Re Kevin decisions. See Re Kevin in Perspective" [2004] R.Wallbank DeakinLawRw 22; (2004) 9(2) Deakin Law Review 461 .

Now let's get to sexual orientation. A case can be made that it's changeable, in a small minority of cases - unlike sex, which is completely immutable.

Except sex is not completely immutable no matter which definition is chosen (except possibly the neuro-anatomical one, which also immutably differentiates sexual orientation), so even if the "ex-Gays" are not just bisexuals who choose to be half-celibate, the mutability of sexual orientation in a few cases strengthens rather than weakens the case of sex and sexual orientation to be treated with the same standard of scrutiny.

That's the edifice I've erected, but I had to build a lot of foundations first.

That is really interesting, Zoe. My eyes have been opened to a whole new line of analysis. Of course, I've admired Prof. Julie Greenberg's seminal article on the subject, but somehow what you said really struck me. Maybe because it's shorter.

Wow Zoe,


another court case to read.

I don't have any more time for this right now. I missed your post. I think you know as well as I do that there are people assigned a sex, fairly frequently, that doesn't fit the standards of the judge's decision in the Christy Lee Littleton case or do they because they were first assigned that sex? I forgot. Was it simply determined that she wasn't female because she wasn't assigned female? There are plenty of people who have had their assignments changed within the first two years of birth, including those who experienced penis ablatio and were later assigned female. One has to wonder about them and what the implications are of early assignment in such cases and the authority of doctors to make those assignments. The problem, as anyone understands who might have a stake in this and took the time to look into it, is that there is no definitive characteristic that can be relied on in all cases to establish what is necessary to be assigned male or female.

Harry Benjamin's friend Eugen Steinach demonstrated, long ago, how it is possible to achieve profound sex changes by exchanging male gonads for female gonads and vice versa in the rodents he experimented with by changing hormonal balance. We're not rodents. We are humans but the results Harry Benjamin observed among his patients were profound endocrinological and anatomical changes that could only be described as sex changes without avoiding the reality of such effects.

I haven't had a chance to look at the article on artificial ovaries you posted. I am sure sex changing technology is only in its infancy. I think the prospect that neuroanatomical structures might one day be able to be changed is a very frightening prospect. I sure don't know if that ever would be a possibility but I don't know it wouldn't, either.

There are no complete sets of characteristics that people possess that clearly defines their sex in all cases. Sex characteristics can be changed. When they are changed, at least some of those characteristics are changed irreversibly. At least at this point in time they are. When one speaks of males and females, one speaks of people who possess a wide variety of characteristics, which in certain cases can be extremely different that are often a mixture of male and female. They are assigned a finite sex in spite of the fact they are not completely similar to the vast majority of people who belong to the sex they are assigned. How are the circumstances for transsexual people any different, except for the way they came to acquire the characteristics they do?

Race in the western hemisphere is not a pure characteristic. Duana Fulwilly goes discusses how this works with a lot of clarity. I don't have time to look for the reference but I recall listening to a piece on All Things Considered that had to do with a genetic study on race done in Brazil that determined that many of those who assumed their genome would show their most origin as European were surprised to find the opposite and vice versa. As Sophia Seidlberg is fond of pointing out, race and genetics are a polygenic phenomenon. I don't know if race designation is a requirement anywhere outside of qualifying as a member of an Indian tribe. I think in those instances, where one's genealogy is required for membership, racial purity is not a requirement.

The subject of neuroanatomy among people with same sex orientation and those who are in conflict with a sex assignment is probably a very significant one to many of those who have a same sex orientation and those who change their sex characteristics. I don't think it is a uniform phenomenon, however, where either sexual orientation or sex assignment rejection is concerned. I think the matter is probably very complex in light of the diversity of gene expression, environmental factors and even other things I can't think of at the moment.

I think have have read some of Julie Greenberg's stuff. I can't remember at the moment. When I have more time I'll have to get around to that, too.

Well I am sure I have read some Julie Greenberg. I am not sure exactly how impressed I was by what I read. I know she is one of the masters of the universe as far as legal scholarship is concerned regarding transsexual, intersex and gender non-comforming people(whatever that formless term means). I tried to access her article with Ian Morland and Del LaGrace Volcano but it is locked away from scrubs like me. I'm not going to pay fifteen bucks to find out what she's been writing about me and others.

Intersex: Practice, Theory and Activism (with Sarah M. Creighton, Katrina Roen, and Del LaGrace Volcano) in Intersex and After, 15 GLQ 249 (ed. Iain Morland, Duke University Press 2009)

I have read Del LaGrace comments to Tracie O'keefe in the Scavenger regarding how Tracie is not only transsexual but intersex, as well. I wasn't really all that impressed by Del's implicit assertion that she had an imperative to set Tracie straight because she knows all about intersex. She has a cousin who's intersex, you know. And, well, she is a performance artist and "intersex by design" so she understands how gender is all about performance. I just wonder what that has to do with the price of beans.

There is a huge conflict of interest between transsexual people, some of whom are intersex to one degree or another, who have consensually opted for medical procedures and intersex people who have had similar procedures imposed on them, non-consensually. It creates a complex dynamic that the word transphobia does not quite cover.

I also remember a blow-up over assertions Morland had made that I responded to somewhere, which were met unsympathetically by people I usually recall as being somewhat sympathetic. It not only had to do with intersex but male/female dynamics.

Many intersex people have trouble accepting the fact that transsexual people change sex, particularly people who are heavily balanced toward their masculine side.

Sex is really complicated but until the entire population accepts that they are not completely male or female transsexual changes to people's characteristics should be accepted as male or female sex characterists not expressions of gender. Genitalia have always been considered a primary marker. That factor should not be dismissed when determining one's sex. By definition, it's is a primary indicator of sex, even if the sex is intermediate.

How does this tie into DOMA? The DOMA debate is right out of a Heinrich Boll novel. Sex is like the theory of the particles, as in the Eucharist of the Catholic Church, which goes beyond how many angels can dance on the head of a pin. It is about how tiny a particle a piece of communion bread can be and still contain the complete body of Christ. There are many people who are legally married who don't fit every definition of what one man or one woman is. Are we to disregard their right to be married for the sake of proving how ridiculous the argument about marriage being between "one man and one woman" is? Percentagewise, maybe not very many would be hurt but many, by questioning their right to be married, would be hurt which would be apparent once one started counting the numbers. The 1+1 = argument is ridiculous for many other reasons as well as the fact that sex is so difficult to define in so many cases. So, we have laws against polygamy. I would be wary of denying transsexual people and intersex people the right to marry and stay married until others have the same right. Why not question everyone else's right instead, if others are denied the same right?

I don't know who is going to read this but my point is sex exists, sex change is possible, sex involves much more than gender and defining sex orientation is very difficult when applied to transsexual and intersex people. There is no compass to determine it. At the bottom of the DOMA definition is the foundation from what it is built upon and that is a set of assumptions of what defines sex.

Shoot, I was wondering when I was going to make this mistake. In referring to Del LaGrace Volcano I apologize for not using the pronoun ze or zie. My use of the female pronoun was very unintentional.

I have a copy, if you shoot me an email, Edith.

Thanks Doctor,

I am not sure you are referring to the article I posted in my message or not. Is that the "seminal article" you were referring to?

Anyway, you can send it to [email protected] or to my Facebook page which is listed under a shared e-mail account in another person's name. That's the account I use most often. The Facebook page is under Edith Pilkington. The one, I use most often has the avatar with me under an umbrella, of all things. Whatever. I'll check both

I appreciate you offering to do this. How do you read all this stuff - law texts, blog comments and student papers? Must be exhausting.

Stonewall Girl Stonewall Girl | February 27, 2011 12:19 AM

Jill, thank you so much for this analysis and laying it out in a manner that my meager non-legal mind can handle. I'm on a listserv with a bunch of lawyers that were sort of alluding to what you posted, but none were near as articulate as you!

Thanks, SG. Sometimes us lawyers get so caught up in our legal jargon, we forget how to speak English.