Dr. Jillian T. Weiss

Comment of the Week: Brad Bailey

Filed By Dr. Jillian T. Weiss | March 20, 2011 7:00 PM | comments

Filed in: Site News
Tags: biology, Defense of Marriage Act, DOMA, gay gene

In Yasmin Nair's excellent post The Gay Gene Will Not Protect You, The quintessential
the central thesis of which is that, Lady Gaga's "Born This Way" notwithstanding, biology shouldn't be the determinant of anyone's right to live, have health care, gain citizenship, get and keep a job. In response, Brad Bailey said:

I'd say a lot of folks here have absolutely no idea of how the judicial system in this country works. Google "suspect class." Then you'll understand why being "born this way" is at the very heart of the matter. No civil rights have EVER been granted to any minority unless they fall into this category.

You can call this good, bad or whatever you want. But this is the way our justice system works. If you don't like it, write to your congressmen or your local paper and try to change it.

Bitching about it on Bilerico accomplishes squat.

Don't hold back, Brad, we love you just the way you are. And you're right that, whether we like it or not, using the "born this way" card is pragmatic. Look what a difference it has made in regard to the recent advances with DOMA. But scientific and legal theories on this complicated issue are evolving, as we've previously discussed, and I'm not so sure "suspect class" status is the exclusive legal route to rights. Will I need to upload a CAT scan to my employer or the driver license bureau or Match.com to prove that I'm entitled to live as a woman? Or that I'm bisexual?

What say you, Projectors. will the "gay gene" save us?


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How the heck did religion become a suspect class? What genes control what religion you believe in?

Religion is protected because it is specifically spelled out in the 1st Amendment. No other suspect class is given that kind of treatment... which is the point Brad is making.

Sex, race, nationality, etc, are all considered suspect classes because they are immutable characteristics have nothing to do with choice.

Actually, Jeff, religion is not a suspect class. It is a fundamental right. But the important point here is that there is more than one way to protection.

Exactly! --- Deanna, you beat me to it at pointing this out.

"Physical disability" is not always a genetic-based characteristic, though it can be ... and "real or perceived medical condition," which often appears on this laundry list, is also a very, very gray area ...

... laundry list ... gray area ... forgive me for not pre-soaking my metaphors ...

AJ, the prohibition on discrimination based on disability and medical condition is statutory, rather than Constitutional. This is important, because the statutory protections do not prevent discrimination against other types of status that are not named, such as being gay. The Constitutional protection, however, is an evolving category and the argument can be made that it includes LGBT identity. Thus, the fact that disability and medical condition include acquired characteristics, in addition to inborn ones, does not help our argument. Those statutory protection cannot prevent discrimination against other types of status that are not named, such as LGBT identity.

Religion isn't a suspect class, Deanna. It's a fundamental right. Fundamental rights are another way to get heightened protection under the Constitution, without using the suspect class argument. Freedom of religion is a fundamental right because it is specifically protected by the First Amendment. There are, however, fundamental rights that are not found explicitly in the Constitution. Marriage, for example, is considered a fundamental right, as is the right to contraception and the right to choose whether to give birth.

John H Gagon | March 21, 2011 9:23 AM

My guess is that religion, thought, speech are rights we protect for a few reasons similar to national origin and culture. It's not always something a person can outright help if they are brought up in a particular cultural environment.

Religions are recognized as thought systems, much like political beliefs which can promote good. But when it doesn't...I feel a person's religion should and where another's nose begins.

That said, religion based in taking away certain rights like with homophobic sentiments or say a caste system should be trumped by individual destiny and more inherent rights. That's my own take but the reality is much more darwinistic (ironically speaking given so many of these religions also deny Darwinism)

Religion always had special privileges it doesn't deserve. Not just legally, but socially as well. Believers have removed it from criticism and dialog because they can't defend it otherwise.

My thoughts exactly, Deanna! What happens when Jews or Muslims are discriminated against and they try legal recourse? "Oh, well, you weren't born understanding your religion so you pretty much chose sometime along the way not to be Christian. Too bad for you." How would Brad Bailey answer a question about religious discrimination?

Except women are not considered a true suspect class (they are only "quasi-suspect") and some of the last big court wins (overthrow of Prop 8) used a "rational scrutiny with bite" standard not a "suspect class" standard. It is worth noting that sex discrimination is a deep and central part of anti-LGBT measures as well.

Also, the structure of the question is very US centric. The whole tier system based on a reading of the text and case precedents for the 14th Amendment is the byproduct of the US legal system, not a necessary feature of all legal rights systems. Even if we accepted that this was the only way in the current US legal system, it does not follow that we should medicalize ourselves (this applies to LGB as well as the T-citing twin studies to justify your existence is a medical discourse) because our legal system is weird. Another option is changing the screwed up system.

In addition, Bailey fails to take into account a lot of people discussed within the original post. Bisexuals, for example, could still be faulted for electing to be with someone of the "same" sex rather than someone of the "opposite" one. Crossdressers who are not otherwise trans could still be attacked. This still leaves huge portions of the community out of the picture.

Will I need to upload a CAT scan to my employer or the driver license bureau or Match.com to prove that I'm entitled to live as a woman? Or that I'm bisexual?

No, Dr. Jillian, this is clearly not good enough!

... The same super-top-secret Recombinant Nasties Conspiracy ("RNC") that, in the late 1970's, engineered the original HIV virus and secretly dumped it into all the hot tubs inside gay bathhouses, will now nano-engineer teeny-tiny sub-cellular nano-inspectors that will travel through your brain and verify that the INAH-3 region of your hypothalamus is straight, gay, bi, or too messed up to identify (this last condition is usually referred in the scientific journals as "SNAFU" ... at least in the journals published out of the Netherlands). Anyone who initiates a legal challenge to any employer or govt agency charging sexual orientation or gender expression discrimination will be required to receive an injection of serum containing these little nano-thingies.

... and then, once they turn a little bump near the injection site either blue (straight male), pink (straight female), purple (queer male), dark red (lesbian), green (trans), black (into leather) or a little rainbow flag (polymorphous perverse) ... then ...

... as earnestly promised by the RNC, and guaranteed by the FDA, the little in-nanities will dissolve themselves into your bloodstream and disappear harmlessly ... even though, suspiciously, you will have an irrepressible urge to vote Republican for the rest of your life ...

P.S. Damn! Dr. Jillian ... that biological specimen in your photo is the largest scrotum I have ever seen! ... But why are you storing it in the formaldehyde upside-down?

Repeat after me, AJ: "I must not eat too many twinkies before posting."

Actually, Dr. Jillian, they were jelly donuts ... but I know you are offering me sound advice.

Paige Listerud | March 21, 2011 12:20 AM

I clearly need a 100 courses in the law, but my understanding is that sodomy laws were declared unconstitutional in 2003--and not based on any "born that way" rational by the Supreme Court. How is it that the LGBTQ should still hang on tooth and nail to some biological essentialist argument to defend itself and obtain equality, except for personal psychological reasons or to persuade heterosexuals for who "no choice" equals "innocence?" Go ahead, tell it to me like I'm a ten year old.

Good point, Paige. Yes, the sodomy laws were struck down in 2003 in the Supreme Court case of Lawrence v. Texas. Rather than the "equal protection" analysis expected by some legal observers, which would have called for discussion of whether being gay is a "suspect class," the Court used a "right to privacy" analysis. The question in "right to privacy" cases is whether an activity is within the zone of private life choices with which the government may not interfere. Gay nooky, like the straight variety, was found to be within this zone.

They were extremely careful not to use the suspect class angle. They also went to great lengths to not spell out which standard of review they used.

Gay gene????? So? A gay gene would cause someone to want to live as a woman and get the sex designation on their license changed?

You know, everything is just a matter of choice. Why doesn't everyone just will themselves to be wealthy enough so they don't have to work and so they all are able to hire the best lawyers available to take care of the messy details like driver's licenses, birth certificates, etc?

I heard that at Srebinica the only ones they let get away were the ones who told the soldiers gender was a social construct. They didn't even bother to do dna analysis to find out how many of them were gay men going on to have sex reassignment surgery, or cat scans, either. I am sure they would have killed all the ones with atypical inah-3 regions twice if they had. I am not sure what their policy was on those with female typical BSTc regions. You have to kill them to find out, anyway.

Since you are a Lawyer Dr. Weiss I was wondering if anyone has ever tried a practicing medicine without a license defense against arresting law enforcement? In other words a TS woman who is diagnosed as TS and is in possesion of a transition letter from a psyschiatrist stating that she is undergoing the RLT and should be afforded all legal rights as a woman including using the restroom is arrested for no other reason then using the restroom.Wouldn't the arresting officer be in essence overuling a medical decision by determining the suspect is male vs they are female something only a licensed medical practioner should be allowed to do? In essence aren't they practicing medicine without a license? Going even further aren't State legislatures and Congress practicing medicine without a licence when they pass or call for the enforcement of laws that are contrary to proffessional medical standards.
Also I'm sure you know that the Australians claim to have isolated a possible TS gene plus of all the other medical evidence from autopsies to MRI's and Pet scans supporting a born as scenario for TS identified individuals.

Genetics is one way of talking about ourselves, such as the alignement of stars were another before, and certain nurture arguments as well. They only hold about as much weight as society gives them, but they are constantly changing.

The real charge against gay people seems to be led at its core by the religious. These people in many catechism*-like statements even agree to the notion that we might be born this way, but then say the answer is abstinence.

It seems that the discussion and fight for rights has to happen in many venues and in many manners. Many ways of thinking about it are a mixed bag as they are not going to stand the test of time nor do they answer all the critics. Definitely a holistic view is more helpful, but speaking to people where they are now to achieve rights and dignity as well as respect is going to be an essential part of the journey.

*Here's one: http://www.catholic.com/thisrock/1994/9407fea1sb1.asp

I agree with Brad Bailey - and Dr. Jill's use of the term 'pragmaticly speaking' sums it up best.
The average numb-nut that goes to the polls isn't thinking about the esoteric or philosophical arguments that we often do. And for those who are uber-religious, 'born this way' translates easily into 'God made me this way; so get over it and give me my damn rights'. Even though it will be a slippery slope I hope they find a genetic or at least biological explanation for what is already a biological reality - 7-8% of all human beings are born with an other-than-heterosexual orientation (as I curretnly interpret the latest data). Quite simply,it will just be easier to digest for those in the majority who - sorry to say - don't have the intelligence, nor moral compass to parse anything more complicated than that out.

John H Gagon | March 21, 2011 9:34 AM

I should add. Sexuality, could be argued on both fronts as both "culture" and "religion-like" (see for example a Radical Faeries group) and as a genetic or at least, epigenetic pre-determinant for some. In fact, this can make for a very strong argument.

I believe *both* arguments have room in the debate but at the very least, biology is inherently a very strong argument for rights as this personal attribute itself is very inherent in a person, almost like race/skin-color but more like disability/albinism/handedness, (not to be disparaged by comparison), seems more like a random trait (like a regressive gene...again, not to be disparaging). I really do not like it arguments that promote the by-choice-and-damn-proud-of-it argument by sacrificing the birth-nature argument. Such arguments that acknowledge both get my support.

Definitely a holistic view is more helpfu

I agree that what makes us who we are is a result of nature, nuture and the way we resolve the enormously complex interactions between the two. The gene study from Monash concerning transsexualism is not very impressive. A very high percentage of people who were not transsexual carried it. The INAH3 and BSTc studies seem to me like they would be effects more than causes. I think the reasons for the effects could be widely varying.

There are enormous number of variations that effect a person's endocrinology, many of which have a genetic origin. One only has to have a look at the Consensus Statement on the Management of Intersex "Disorders" (Variations would be more accurate and less pathologizing) to understand how playing dumb won't help many people. At the same time it is important to note that not all variation can be traced to a genetic cause, either.

The point is, there are many people who are going to be accused of being gay, lesbian, queer, transgender or transsexual whether they try to hide it or not. There is enormous variation among humans. You don't have to go looking for gay, lesbian and transsexual genes to find it. Through amniocentesis and genetic testing, however, it is already possible to determine who will be born with variations and offer the possibility to parents of choosing not to have the child. The Chicago Consortium, composed of clinicians from around the world, has already catalogued a large number of variations. And, yes Heino Meyer-Bahlburg's research has already established a higher incidence of lesbianism and sex assignment rejection among people raised female with various degrees of CAH and the experiments Maria New has done on fetuses with dexamethasone is fairly well known. The masculinizing effects in physiology and behavior related to testosterone is well known.

I think it is fairly obvious that there is wide diversity, including sex and sexual diversity among humans. Some may choose to be ignorant of the scope of that diversity. Regardless, others with their own agendas are well aware of the scope and nature. I don't think ignorance has ever been of help to anyone. I think the important thing is to recognize diversity, understand it in all its aspects, in detail, and point out that the harm done in denying people their selfhood.

If I can quote an article which, while over-simplified, gives a good overview of the biological facts:

Sexual Hormones and the Brain: An Essential Alliance for Sexual Identity and Sexual Orientation Garcia-Falgueras A, Swaab DF Endocr Dev. 2010;17:22-35

The fetal brain develops during the intrauterine period in the male direction through a direct action of testosterone on the developing nerve cells, or in the female direction through the absence of this hormone surge. In this way, our gender identity (the conviction of belonging to the male or female gender) and sexual orientation are programmed or organized into our brain structures when we are still in the womb. However, since sexual differentiation of the genitals takes place in the first two months of pregnancy and sexual differentiation of the brain starts in the second half of pregnancy, these two processes can be influenced independently, which may result in extreme cases in trans-sexuality. This also means that in the event of ambiguous sex at birth, the degree of masculinization of the genitals may not reflect the degree of masculinization of the brain. There is no indication that social environment after birth has an effect on gender identity or sexual orientation.
It's not about the genes: it's about the hormonal environment in the womb (which is affected by the genes, but they're not the only things involved).

Foetal Hormonal Environment. Remember that. And the brain's not so much one organ as a complex of organs, some of which can be more M than F, or vice-versa.

When it comes to genes, we've found a few that slightly bias the odds, by on the order of 10%. There's separate gene sequences that make FtoM transsexuality about 10% more likely than usual, and different gene sequences that make MtoF transsexuality about 10% more likely than usual. But not all transsexuals have either of these genes (most don't), and not all people with these genes are trans (most aren't).

I believe that there are similar gene sequences for cross-sexed sexual orientation, but I'm not certain, that's not my field of study.

TLDR version; the scaffolding, the organisation of the brain, is set in the womb by the interplay of hormones and hormonal receptors. When activated by post-natal hormonal stimuli, this leads to a predestined brain structure forming. Which may be more or less M or F in different areas.

When it comes to sexual orientation, I prefer "gynaphillic" or "androphillic" to M and F respectively, but the "standard" is that most men are mostly gynephillic, most women mostly androphillic.

Google "suspect class." Then you'll understand why being "born this way" is at the very heart of the matter. No civil rights have EVER been granted to any minority unless they fall into this category.

Granted, but religion is a protected class that people opt in or out of. They're not "born that way" or there'd be no religious conversions. The "born that way" line of thinking is simply searching for an easier route to civil rights.

That's not to say it's not a possibility either way. There's not enough scientific evidence to prove anything yet, so I'd suggest pursuing the "religion" angle to civil rights.

My concern, though, is the limitations of a "born this way" or "immutable characteristic" legal approach. I know of a case where someone was fired not for being black but for wearing their hair in cornrows. Even though it's was an expression of black culture, the court decided it was a mutable characteristic and therefore an appropriate basis for discrimination. Essentially, one can't be fired for being black, but one can be fired for acting black.

Apply that same thinking to sexual orientation and you risk creating a law that protects you from being discriminated against for having your gay gene and being attracted to people of the same sex, but does not protect you from being discriminated against for your rainbow bumper sticker, for looking/acting "gay", for coming out to a coworker, or bringing your same-sex partner to a company picnic -- your pattern of attractions is inborn and immutable, but very little beyond that is.

The LeVay controversy is pretty old business. Anne Fausto Sterling was writing about it ten years ago. Here's a passage, from her book, on LeVay which I think is pretty insightful:

You have to scroll down to the bottom of the page (26) to get to where the discussion specifically concerning LeVay and, later, Hamer begins.

". . . a single behavior may have many underlying causes, events that happen at different times in development. I suspect that our labels, homosexual, heterosexual, bisexual and transgender are really not good categories at all, and are best understood only as unique developmental events affecting particular individuals. . . . "

She avoids the word transsexual and does what she calls "deliberately displacing the biology, hence opening the body to social and cultural shaping" but I agree with her where she quotes Elisabeth Wilson quoting here as, "An effective political response . . . doesn't have to separate the study of sexuality from the neuro-sciences."

I agree with the message implicit in Fausto-Sterlings writing here, that we have to "break away from dualistic thought processes." I don't know exactly how this would neatly fit into the immutable trait/suspect class category. It seems, however, that a lot of traits involving, lesbian, gay, bisexual, transgender have their limitations as far as "opting out" is concerned. The situation with a transsexual person, however, is even more complex. For someone who would be non-op, there are irreversible changes brought on through hormone use, I think? For the pre-op there might be more options than there are even for the non-op "transgender" or "transsexual" person but for the post operative person of transsexual history, there is no "opt out".

It seems most of this scenario involving the speculations and questions posed in this thread has erased transsexualism as an existing variation. Why weren't the BSTc studies brought up as part of the question? Aren't they as valid as LeVay's findings, or, at least, no less valid? There was no correlation with BSTc size in the gay male controls with the females, both native and transsexual in the study. Even if one attributes BSTc size to hormone use, alone, that would indicate a difference between transsexual women/natal women, and men, gay and straight. I can understand considering the focus of LeVay's work as a separate issue from transsexualism but why bring someone's right to have their drivers' license changed or to live as a woman into the question based on whether they have a gay gene or not? What was that meat to imply?

If you go past page 26 in Fausto-Sterlings book that I linked to, there is a discussion of a clear case of intersex. Intersex is certainly an immutable trait and should obviously be considered a suspect class. Why is not intersex mentioned at all?

Everyone's pointing to religion, but my copy of West's Encyclopedia of American Law (OK, I don't have a copy; I'm just looking at the online version) says there are 4 constitutionally protected suspect classes: race, national origin, alienage, or religious affiliation. 2 out of 4 aren't based on birth characteristics, and 3 out of 4 aren't based on genetics.

So why are we attaching ourselves to such an argument? Because it is an effective argument - we still think there's something wrong with being gay and immutability, which some of us associate with "genetics" because they don't understand even basic developmental biology, is how many/most of us actually experience sexuality so it seems like a good response.

I don't know who you are replying to, Alex. I know we do not have an equal rights amendment. The only protections against discrimination based on sex are statutory. I don't believe transsexualism is a matter of behavior/expression/choice. Intersex certainly is not. Laws protecting behavior and expression will protect one's freedom to choose sexual orientation and gender expression and keep from being discriminated against because of THAT. I do not believe it will help a person where segregation of the sexes is legally allowed, even if marriage equality is the law of the land. Also, what protections against discrimination would an intersex person have based on behavior/expression/choice?

The thrust of the lgbtq rights movement is based on behavior and expression, leaving many issues concerning transsexualism and intersex unresolved. If those issues are not lgbtq concerns, fine but why put everyone under an umbrella, erase transsexualism like GLAAD does and not even acknowledge intersex? Why not clearly acknowledge the existence of each and admit neither is an lgbtq concern? I can't understand why the hypothetical situation was presented the way it was in this post. "Right to live as a woman" and "drivers' licenses" have to do with sex segregation. Gay genes have to do with gay men, I believe.

"Gay genes have to do with gay men, I believe."

I didn't mean "gay genes". I doubt there is such a thing. I meant to refer to LeVay's research involving the inah3