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.