Dr. Jillian T. Weiss

Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas

Filed By Dr. Jillian T. Weiss | March 21, 2009 2:30 PM | comments

Filed in: Marriage Equality, The Movement, Transgender & Intersex
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I've been thinking a lot lately about the relationship between gender identity and sexual orientation. I just finished an article that is coming out in the Touro Journal of Race, Gender and Ethnicity. That's the title of the article above. Pretty fancy, eh? They like those fancy titles in professorland. This has been keeping me pretty busy, and thank goodness it's done.

The law specifically ties gender identity to physical sex. Even those few states that allow a change on the birth certificate don't necessarily recognize that change, or, they impose restrictions, when it comes to bathrooms, homeless shelters, drug treatment centers, domestic violence shelters, prisons, sports, youth, foster care group homes, transgender parent custody or visitation of children in a divorce, adoption, health care, insurance coverage, employment discrimination, marriage, and military service laws.

The law has imposed similar restrictions on gay sexuality, and in fact it was a crime in over two dozen states. That is, until 2003, when the Supreme Court said that such laws violated the "due process" clause of the U.S. Constitution in Lawrence v. Texas.

Being gay is now protected by the U.S. Constitution. So I've been thinking: can we use this due process clause to loosen the chokehold that the law has on transgender people?

Lawrence v. Texas Overrules Bowers v. Hardwick

The Lawrence v. Texas case, from 2003, was pretty shocking, because less than twenty years before (the blink of an eye in legal-years), the Supreme Court had ruled in Bowers v. Hardwick (1986) that a similar Georgia statute did not violate the due process clause. No problemo to put gay people in jail, the Bowers opinion said.

"Due process": this is the language of the Fifth Amendment, which applies to the federal government, and it's in the Fourteenth Amendment too, which applies to the state governments, and it says that no person shall be deprived of life, liberty, or property without due process of law. Pretty neat stuff. I wouldn't mind a bit more liberty in my life. In fact, I wrote a law review article in 2001 on this idea, arguing that transgender people are protected by the due process clause. That argument has been strengthened by the Lawrence case -- I think.

In the Bowers case, the Court said, as it had said many times before, that if a law infringed a "fundamental right," it was presumed to be unconstitutional. It was this principle that the Court used to find a right to abortion in Roe v. Wade. But in the case of the Georgia sodomy statute, the Court said that there was no "fundamental right to sodomy." So it hung the gays out to dry.

Without a fundamental right, a statute is presumed to be constitutional, unless the law has absolutely zero relationship to any legitimate government interest. Zero is hard to prove. Michael Hardwick made a lot of sense when he said that the fact that a majority of the electorate feels that something is immoral does not create a "legitimate government interest." Hell, half the rural counties in Alabama still feel that interracial marriage is immoral.

But that doesn't make it immoral. But the Supreme Court disagreed and Michael Hardwick lost the case. Being gay continued to be a crime.

Zoom forward twelve years. Police enter John Lawrence's bedroom and he is arrested and convicted for violating the Texas sodomy statute. The case wends its way up the judicial ladder and goes all the way to the Supreme Court. In the opinion in Lawrence v. Texas, the Supreme Court said that the Bowers case was wrongly decided, and that the Constitution protects gay people from anti-gay criminal laws. Sexuality is part of "the liberty protected by the Constitution, [which] allows homosexual persons the right to make this choice." It said the Texas statute "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

Wow. Whoa. Hold up there. The law changes very slowly. There was almost 60 years in between Plessy v. Ferguson, in which the Supreme Court upheld legal race segregation, and Brown v. Board, in which the Court struck it down.

In 1986, homosexuality is NOT a fundamental right under the due process clause, but then in 2003, only 17 years later, being gay is part of the liberty protected by the due process clause of the Constitution of the US of A? In 1986, small-minded morality is a perfectly legitimate government interest, but in 2003 it's no longer a legitimate state interest, and the government has to get out of the bedroom?

I mean, I like the decision, but the law doesn't usually change so fast and the Supreme Court rarely overrules itself in a hundred years, let alone less than twenty. What changed? And how do we explain it? And can we use this to loosen the chokehold that the law has on transgender people?

The Problem with Lawrence

Well, now hold on just a minute. Not so fast. There's a problem with applying Lawrence v. Texas to other situations: legal scholars aren't sure what it says. Well, we know what it says, but we don't know what it means. Nobody's sure. It's a mealy-mouthed opinion. Every lawyer knows there are two different rules when it comes to due process rights: one strict, (for "fundamental rights," like free speech and religion or the right to privacy), and one lenient, requiring only that the statute have a rational relationship to some legitimate government interest (for everything else).

Most legal scholars reading the Lawrence v. Texas opinion can't figure out which one the Court used. Most of them figured that it must be the strict rule. When the strict scrutiny rule is used, there is a presumption that the law is unconstitutional -- the law is dead in the water. The government has to put on a dog and pony show, and prove the law is "narrowly tailored" to a "compelling" government interest. It's not enough to show that there is a legitimate government interest -- it must be "compelling." Usually the Court tells the government to talk to the hand and the law is stricken down as unconstitutional. No go.

On the other hand, when the lenient rule is used, there is a presumption that the law is constitutional as long as the law is rationally related to some legitimate government interest, and the courts aren't too picky about it. State wins in that case. So everyone figured it was the strict rule that the Court used. Right? Right.

Yes, it seems right. The Court struck down the Texas law against sodomy and said it was unconstitutional, and that's consistent with the strict rule. Also, in the beginning of the opinion, the Court has six long pages of historical analysis of sodomy laws. Six. Long. Boring. Pages. Pages of history professor stuff. This historical analysis is generally used to decide whether or not the subject is a "fundamental right," which they only do when something is rooted in tradition and history from the founding of the country. That's how they justify using the strict rule. Fundamental right = strict scrutiny.

If they weren't using the strict scrutiny rule, the Court could have skipped the six pages of history and simply ruled, as it did later in the opinion, that the state interest in moral condemnation of gay people is an illegitimate basis. The Court also said there was an emerging awareness during the past 50 years that adult sexual relationships are within the realm of personal liberty. This also seems pretty consistent with the strict rule (although usually they look at 200 years ago, so the 50-year window was kind of new).

So, the key question in my mind is -- if it is the strict rule, how do transgender people get a piece of that? How do we prove that gender identity is a "fundamental right" like sexual orientation? What history do we have? Well, we have plenty of history (See Leslie Feinberg's "Transgender Warriors" and a zillion scholarly books and articles.)

In fact, in my 2001 article, I argued that the right of gender autonomy is a fundamental right. But actually, now that I've read Lawrence, I think I made a mistake. Or, at least, that this is not the way to go to convince a judge.

Is Sexuality FUN-damental?

There are a lot of legal scholars saying that the Lawrence opinion NEVER SAID that sexuality is a fundamental right. And most of the courts applying Lawrence v. Texas to other situations agree. They don't use the strict rule. They say Lawrence used the lenient rule, requiring the law only to have some "rational" relationship to a "legitimate" government interest.

If being gay is a "fundamental right," then the Court would have had to decide whether the state had a "compelling" interest. But the Court never brought up the issue. Instead, the Court seems to say that morality is not a legitimate state interest, and never can be, whether the right is fundamental or not. So this seems to bring us back to the lenient "rationality" rule. If we view it this way, the opinion in Lawrence v. Texas stands for the idea that moral protection is not a legitimate state interest.

But actually, there's some controversy about that. If it's true that morality is not a good reason for laws anymore, what happens to the many laws based on morality where there's no harm to third parties, like laws against polygamy, adult incest, sex toys, prostitution, obscenity, Sunday blue laws, seat belt laws, motorcycle helmet laws and gosh knows what else? As it turns out, most courts applying the Lawrence opinion in later years have said that morality IS still a legitimate state interest - just not as applied against gay people. They've limited how Lawrence can be applied to other cases. Judges are selected because they uphold the interests of traditional society as we know it, and are connected enough to society to get appointed or elected. They're not chosen because they're raring to change everything around helter-skelter.

Okay, okay, I hear your impatience. Alright already, Professor Weiss, you're jerking my chain here. First you tell me it's not using the strict rule, and then you tell me it's not using the lenient rule. So which is it? Ah. I feel your pain. (I know my students sympathize. They often ask me to skip the back and forth and give them the answer.) Welcome to the law. But here is the solution -- anyway, I think so, even if no other legal scholars back me up on this.

The Solution: The "Rational" Part of "Rational Relationship"

The lenient rule has two parts, and the second part has been overlooked: 1) the law must have a legitimate state interest backing it up, and 2) the law must be "rationally related" to that legitimate state interest. Most people think the Supreme Court was going on the first part of the rule: morality is not a legitimate state interest. My claim, and this is the part that is novel (I think), is that the Lawrence opinion allows morality to be a legitimate state interest in general. However, it decides that a law making homosexuality into a crime is unrelated to that interest in morality. Morality, yes. But being gay is not immoral.

This leaves the Court with a big problem. It can't just make this stuff up. It has to have legal backup and authority to show that being gay is not immoral. What about all those biblical passages condemning homosexuality as immoral, and long history of laws against it?

This is where all of the history professor stuff comes in. This is why they spend six long pages discussing the history of sodomy laws. They use that history to show that there IS a long history of anti-sodomy laws, but that these laws applied to both heterosexuals and homosexuals. Therefore, these laws do not show that homosexuality is considered immoral. Rather, these laws only show that non-procreative sex is immoral, whether heterosexual or homosexual. In fact, the first anti-gay laws were enacted in the 1970s, and even then they were rarely used and there have been many calls for their removal by legal authorities in the US and around the world. The purpose of all this historical analysis, normally reserved for a finding of fundamental rights, is being used for a totally different purpose: to show that there is no rational connection between homosexuality and immorality.

Conclusion - Start Revving Up The Academic Research

Lawrence v. Texas stands for the proposition that government may pass laws based on morality, such as laws about incest, bigamy and statutory rape, but they must be able to show that there is in fact a rational connection between the law and the state's interest in morality. They have to show that nearly everyone condemns it, not just one conservative U.S. state or even a few states.

How does this help advocates of gender autonomy? We can stop concentrating our legal arguments on trying to prove that gender autonomy is a fundamental right, a proposition to which the courts are not very receptive. Rather, we can concentrate on showing how and why the laws regulating gender, under which we are not allowed to determine our own gender and the courts ignore our gender identity, are not rationally related to the governmental interests that back up these laws. What are the governmental interests that back up gender regulations? Well, morality might be one, but it's probably also stuff like an interest in the accuracy of historical birth records, protecting "real" women from transwomen, and avoiding "same sex" marriage, depending on the context.

Research by psychologists and sociologists and those in other academic disciplines have shown that gender identity is not the same thing as sex, and the two can be different. More needs to be done on these issues to show that trans people can and should be included in the system based on gender identity, rather than sex.

Look for my article, which contains the backup and legal lingo, in the Touro Journal of Race, Gender and Ethnicity in a couple of months.


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What I like about your posts here on TBP, Prof. Weiss, is that you put in so much background. I learned a lot from this - I thought that Lawrence was based on a fundamental right to privacy.

Which actually makes it a lot less fun since it's apparently a whole lot more narrow than I thought. :)

I agree with your last points, that there's a lot of fertile territory in making the argument that laws that don't recognize gender identity don't back up a state interest.

Thanks for your kind words. Re the right to privacy - I want to note that the Lawrence opinion is based on cases that used to be called "the right to privacy," but now seem to be part of Due Process Clause "liberty." The Lawrence case does make much of the fact that the conduct was in a private bedroom, and specifically exempts public sex from its protection. Some commentators have said that this marks a difference from gender identity and gender expression, in that these are public expressions, as opposed to private sexuality.

I'd settle for a SCOTUS definition of male and female.

Hopefully not one in the spirit of Dredd Scott.

Oh gosh, I think I'm going for the opposite of that -- gender autonomy -- the right to define one's own gender and make it stick to government paperwork. I wouldn't trust the Supreme Court -- or any court -- to define my gender, and I don't think they should try.

That's what we're working towards - see the Australian Human Rights Commission Recommendations on the subject.

Here in Australia, the Federal courts have been relatively friendly and sane. State courts not always so, and both Federal and State governments less so still.

While there are Federal laws on the books about same-sex marriage and the like though, not having a Federal definition leads to all sorts of problems, e.g. regarding dress codes in employment. And of course having definitions that differ at the state, and sometimes county, level makes the whole thing a legal schlemozzle. e.g. Gardner, Kantaras etc

WOW, you got WAY WAY OFF TOPIC, you barely even discussed transgender and the laws!!! In my opinion Gay and Lesbian rights have come a long way from 30 years ago, and some American's and some courts are coming to their senses and realizing that being gay or homosexual is not a crime. HOWEVER some states STILL have and UPHOLD sodomy laws. I feel that delving into Transgender people is going to push the envelope TOO FAR. Straight americans are going to start assuming that all gay people are or have transgender issues, when most do not. Transgender people who wish to be open in their sexuality can cause GREAT CONCERNS, even for me, an openly gay male. What about restroom issues? What about the Military?, What about adopting Children. Except for the bathroom issue, Gay rights are just now starting to get a headway into these same issues and to try and bring transgenders into the mix is only going to be pouring gasoline onto the fire.

Yes, Christopher, it is a bit of an odd angle to start a discussion of transgender rights. But that's where my research took me. I plan further examination of the topic more specific to state interests in gender regulation, but one step at a time. Sometimes I wish I could just spend all my time researching and writing, but life ain't like that.

I'm curious about your point regarding states that still uphold sodomy laws. What states are those? I thought Lawrence v. Texas said they can do that with regard to adult consensual gay relationships.

I understand your fear of transgender people causing more opposition to the civil rights movement. Battling prejudice isn't easy. But I also think your point about the level of knowledge of straight Americans is a good one. Many Americans don't know the difference between gay and transgender. I think educating them is going to make the cause of civil rights easier, rather than harder. If I were arguing your point of view, I would want more education about transgender rights, rather than less. I would want people to know the difference between gay and transgender. Arguing that we should avoid "delving into transgender issues" actually makes your case harder; don't you think?

Something from circa 1960:

In my opinion rights for Colored people have come a long way from 30 years ago, and some American's and some courts are coming to their senses and realizing that being Black is not a crime. HOWEVER some states STILL have and UPHOLD miscegenation laws. I feel that delving into Homosexuality people is going to push the envelope TOO FAR. White americans are going to start assuming that all coloured people are or have sexual issues, when most do not. Homosexual people who wish to be open in their sexuality can cause GREAT CONCERNS, even for me, a Black male. What about restroom issues? What about the Military?, What about adopting Children. Except for the drinking fountain issue, Colored people's rights are just now starting to get a headway into these same issues and to try and bring homosexuals into the mix is only going to be pouring gasoline onto the fire.
And see how far we've come from this today....

I won't talk about Gays with cisgendered privilege, nor about how in Wisconsin Gays have had rights for nigh on 30 years, while Trans* people are still waiting.

Oops, just did. Sorry, it's probably counter-productive. Never mind, Trans* people will continue to support Gay rights whether or not you support us. Because although it actually damages our cause in many ways, as the court cases against TS marriages have shown, it's the right thing to do. The only weapon we have is the moral high ground.

Don't worry, we won't hold our breath that you'll even do anything for us in return. You're under no obligation.

Everyday Transperson | March 22, 2009 12:57 PM

Well gee Christophe, I guess it is because that same exact kind of mindset you express is the very reason why transgender folks are fighting for equal rights to protect them.............

Dr. Weiss,

Great article.

I was wondering if perhaps you could in the future do a story on the legal definition of the term "sex" ,how exactly transgender folks fit into that category and how it is interpreted legally in different applications such as Title VII of the Civil Rights act of 1964 and also concerning EEOC policy.

I know that you did a similar article on this topic, but I was wondering if perhaps a future one can be expressed more in "laypersons' terms", sort of like trans law for dummies kind of thing.........

Also, I'd be very interested in learning if there have ever been any legal precedents or studies made over the years concerning the issue of say "pre-meditated" discrimination and "systematic" negligence(where the company or the organization is treated as a seperate entity) concerning workplace discrimination. I'd love to hear your thoughts on this !!

Thanks, Everyday, I'll put my thinking cap on about that topic. I'm not sure what you mean about premeditated discrimination and systematic negligence.

There is a difference in law between disparate treatment and disparate impact -- the first is where there is specifically identifiable discriminatory policy or conduct directed against the individual based on group membership, and the second is where the company policy has a negative impact on a group, but there is no specifically identifiable policy or conduct based on group membership. The classic example of this is where employers after the Civil Rights Act of 1964 imposed IQ tests and literacy tests on workers, which were not directly related to job skills, and which tended to discriminate against Blacks. Is that the kind of thing you mean?

Everyday Transperson | March 22, 2009 5:24 PM

OK, I'll try and elaborate as best I can (I'm thinking out loud here)...........

What I was referring to was in the instance where say an organization or a company already knows that its internal "system", if you will, is set up to discriminate against a particular group and thus takes actions to protect such a system such as, firing an employee, failing to promote or hire an employee, "managing out" an employee etc...

So then, could a legal argument be made that since the entity personnel knew that their system was discriminatory prior to the act being made, could the entity be considered negligent itself and could the entity be considered as having personnel who "pre-meditated" the discriminatory act based on an already known discriminatory system in place ??? Has there ever been a legal argument or precedent made on this topic ???

Also, concerning the term "sexual identity" as it is applied under the "sex" umbrella, I have done a lot of research and discovery into this and found that many federal and state commissions will refer to discrimination based on "sex" concerning a transgender individual, but most will not go further to explain in detail what their definition of "sex" (inclusive of gender identity under the same umbrella) actually is.......... Is there a set legal definition for this, or is this still left up to much interpretation by the courts ??

Anyway, I hope I was clearer, looking forward to your imput.

E.T., I'll take a stab at responding to your second question regarding the definition of "sex."

It's important to distinguish 2 different situations in which the legal definition of the word "sex" impacts trans people: first, laws that ban discrimination on the basis of sex in employment, housing, public accommodations, etc.; and second, the right of trans people to access legal privileges, e.g., marriage (in most states), that are restricted on the basis of a person's sex. The second group could also encompass the right of trans people to use services or facilities, e.g., public restrooms, access to which is restricted on the basis of a person's sex. (I say "could encompass" since, in most places, contrary to public opinion, there are no laws that say a man can't use a women's restroom, or vice versa. In other words, sex segregation of restrooms is largely a matter of social convention, not law, although trespassing and disturbing the peace laws are sometimes used (unjustly, in my opinion) to enforce those conventions.)

Where access to a legal privilege, service or facility is restricted based on sex, determining a trans person's right of access requires a determination of what "sex" the person is, since sex-based segregation is based on a strict binary division between male or female, where no ambiguity is allowed. Answering that question, in turn, raises myriad complicated questions regarding how a person's sex is determined. For example, is it strictly biological or chromosomal, or does it include a person's gender identity or expression? If biological, do we look only at the configuration of the person's genitals or genes at birth, or do we, also or instead, give effect to the person's genital configuration after surgery? Can a person's sex be legally changed? And what do we do about intersex people whose chromosomes, genitalia, internal organs, etc. are not clearly male or female?

Most, but not all, of the cases addressing this question in the context of the right of a trans person to marry have ignored the effects of surgery and attempts to "legally" change the person's sex by amending her/his birth certificate. In other words, they were decided based on the basic premise espoused by many of our opponents that "once a man, always a man," and vice versa.

Fortunately, most, but not all, of the recent cases involving the definition of "sex" for purposes of determining a trans person's right to protection under laws banning sex discrimination have avoided this difficulty. They do so by saying that it doesn't matter what sex a person is, i.e., whether the person is male, female, both or neither. Instead, what matters is whether the person was treated differently because of some sex-related characteristic. This trend started with the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins in 1988. In that case, the court said that discrimination based on sex under Title VII, the federal law banning sex, race and other types of discrimination in employment, includes being treated differently because the person doesn't conform to sex-based stereotypes regarding dress, mannerisms, etc. Thus, the Supreme Court held that it was illegal for Price Waterhouse to refuse to make Ann Hopkins a partner basically because she was too "butch." (The court, of course, didn't use that term and there is no indication that I know of that Ms. Hopkins was lesbian.)

This trend, IMO, reached its logical endpoint with last fall's federal trial court decision in Diane Schroer's Title VII sex discrimination suit against the Library of Congress. Schroer v. Billington. In that case, the court found that the Library violated Title VII by discriminating against Schroer because she was changing her sex, not because she was male, female, both or neither.

Thus, in the context of discrimination laws or policies that you were talking about, it isn't necessary to define a person's sex as male or female, etc. It is only necessary to tackle that question when the trans person is seeking access to a legal privilege like marriage, or a service or facility, like a restroom, where access is restricted based on whether the person is male or female. The lack of a coherent and consistent definition of a person's sex and/or methods for legally changing one's sex that are actually recognized by the courts are the source of most, if not, all, of the ongoing confusion regarding the rights of trans people.

In the case of marriage, I think the best solution to that confusion is to remove all sex or gender based restrictions, in other words, to legalize same sex marriage. That's why the battle for marriage equality is important to the trans community, contrary to the opinions of some. With respect to access to restrooms and other sex-segregated facilities, I think the best solution is to provide for personal privacy, e.g., the stalls in women's restrooms, and allow access based on the person's gender expression. In other words, if you're presenting as a woman, you use a women's restroom, and vice versa, regardless of your physical sex. Any other solution quickly becomes too complex and confusing to administer and enforce. Implementing that solution will, however, require the American public to just "get over" their hang-ups about the sex or gender of the person in the stall next to them.

Sensible - but I wish the law had anything to do with sensibility!

And what do we do about intersex people whose chromosomes, genitalia, internal organs, etc. are not clearly male or female?
Although I answer to Trans* - since my appearance changed from mostly-male to mostly-female, technically I'm IS rather than TS.

My UK birth certificate says "boy" and always will. (parenthetically, if I was normally transsexual, I could have it changed.). My UK passport on the other hand says "F". One is based on appearance at birth, the other on medical reality.

In 1985 I was (mis)diagnosed on the basis of a cursory external physical examination at a fertility clinic as a mildly Intersexed male. In 2005, I was re-diagnosed on the basis of vast quantities of MRI scans, ultrasounds, androgen and genetic tests as a "severely androgenised non-pregnant woman". By then,my appearance had changed so much that I no longer "passed" as male, just as I wouldn't have had a hope of "passing" as female before the endocrinal weirdness hit.

Since I'm of different legal sexes depending on who you ask, and which jurisdiction I'm in, this illustrates the whole silliness of the situation.

From my own viewpoint, I've known I was female since age 7. But my opinion is irrelevant.

Yes, we're a tiny minority. But this situation makes a mockery of "equal treatment before the law".

Some states still have sodomy statutes on the books, probably in hopes that the SCOTUS will gain a hard-right majority and reverse Lawrence v. Texas. They don't enforce the law, although a few law officers have used the invalidated law as a pretext to harass individuals and a few state agencies have used it to claim that LGBT are lawbreakers and thus not eligible for services. Missouri used this tactic with an adoption case involving a stable and overqualified (special ed. teacher, psychologist-minister working at a children's home) lesbian couple seeking to adopt a special-needs child a year or two after LvT. The state LGBT rights organization continued on with the effort to repeal the state sodomy law and finally succeeded last session.

christophe says:

"I feel that delving into Transgender people is going to push the envelope TOO FAR. Straight americans are going to start assuming that all gay people are or have transgender issues, when most do not."

Awwwwwwww...that would be too bad, huh? The GLB would be put out if straight Americans thought they were all transgender. I'd even expect the GLB would like to assume the transgender would set society straight on the issue too. Then again, classic/true transsexuals, as well as the transgender, are first and foremost thought by society to be gay or lesbian...when most of us are not. Post operative MtoFs, most of which are straight, are seen by most of society as nothing more than homosexual men who've gone to an extreme by having gender reassignment surgery.

And what does the GLB do to dispel this sterotype?

Absolutely nothing...never have, never will.