Select Page

Gender, Sexuality and the Law
Rutgers University, Newark School of Law
Ball, Carlos A.

Sexuality, Gender Identity, and the Law

Ball Spring 2017

What is Sexual Orientation? What is Gender?

The LGBT Population

Size of LGBT community vary b/c of: differences in definitions, different survey methods, lack of consistent questions asked in a particular survey over time, people that don’t self-identify

Sexual orientation is (% of people based on definition)

self-identity of sex/gender (3.5%)
behavior (8.2%)
attraction – sex/gender of person on the other side of attraction (11%)

almost all jurisdictions define sexual orientation based on gender

Factors that could contribute to determination of whether an individual should be considered male or female: chromosomal sex, gonadal sex, external/internal morphologic sex, hormonal patterns, phenotype, assigned sex, sexual identity
At birth, if genitalia is ambiguous, sex is assigned in part based on sex-role stereotypes (men defined by their ability to penetrate-penis size- and females defined by their ability to procreate)
Although appearance of external genitalia establishes individual’s sex at birth, other criteria may be used later to determine an individual’s sex for other purposes (i.e., right to participate in some athletic competitions may be controlled by chromosomal structure)

The Science of Gaydar, David France

Studies support the belief that sexual orientation is biological; homosexuality is the result of some sort of interaction between a pregnant mother and her fetus
Author says scientific view of sexual development that leads to homosexuality may invite opponents of gay people to consider dramatic interventions meant to stop the development of homosexual orientation in a fetus
How does this theory affect immutability argument? Issues with treating someone unfair based on who they are rather than what they do.

Polyamory as Sexual Orientation

Polyamory: the practice, state or ability of having more than one sexual loving relationships at the same time, with the full knowledge and consent of all partners involved
Contemporary understanding of sexual orientation is limited to the sex of the individuals to whom someone is attracted – does not include polyamory


Limited use of the term “sexual orientation” is arbitrary: for it to describe only a person’s having sex with members of their own, or the other, sex obscures the fact that many have other strong and consistent sexual orientations – towards certain hair colors, body shapes, racial types, etc.
Those sexual preferences that are likely to be the basis for discrimination should be protected by anti-discrimination law, and only those are encompassed by the term “sexual orientation”

Epistemic Contract of Bisexual Erasure

Binary understanding of sexual orientation (heterosexual/homosexual) erases bisexuality
Percentage of bisexuals are greater than or comparable to those of homosexuals
Article hypothesizes self-identified straights & gays have entered into “an epistemic contract of bisexual erasure” because of:

An investment in stabilizing sexual orientation
An investment in retaining the primacy of sex
Investment in preserving norms of monogamy

Littleton v. Prange

Rule: Gender is an immutable trait, thus a marriage between a cisgender man and a transgender woman is considered a same-sex marriage.

Facts: Littleton was assigned male at birth but considers herself female. She underwent surgical reassignment and had her state-issued identification changed to female. She married a man, who later died. She filed a medical malpractice suit as the surviving spouse. The sued doctor challenged Littleton’s status as proper wrongful death beneficiary, asserting that she is a man and cannot be surviving spouse of another man.


Court looks to precedent to determine what is sexual identity:

4 Factors (Corbett v. Corbett):

Chromosomal factors – but this stops the discussion here, can’t change chromosomes
Gonadal factors
Genital factors
Psychological factors

Legislature has not granted post-operative transsexuals the right to marry as females, and it is not appropriate for the courts to grant them that right, in the absence of legislative action. At the time of birth, Littleton was a male both anatomically and genetically and should be considered as such.
Note: In the court’s very quest to determine the litigant’s gender within the gender binary, the court’s reasoning ends up exposing the incoherence of gender

Resisting Medicine, Re/Modeling Gender, Dean Spade

Sex reassignment model is regulated through a mental health model which promotes regulatory, binary gender expression and denies access to medical procedures to those who fail to perform normative binary gender for their health care providers (so even the most open—minded medical approach appears to draw arbitrary lines)
Errors/dangers of this medical model:

Normative childhood gender is produced by creating and pathologizing a category of deviants: normal kids do opposite of what kids with GID do
Regulatory mechanism put in place: gender nonconformity is established as an illness that needs to be resisted or cured à opportunity for increased surveillance/speculation
Separates gender from cultural forces (ignores a transgender’s potential perceived cultural advantages of being the other sex)

Requirements for GID diagnosis:

Performing certain narrative of a gender troubled childhood (boys playing house, drawing pictures of princesses; girls not wearing dresses, prefer boys clothing/short hair
The ability to inhabit and perform the new gender “successfully” (“success” defined by non-trans people)
Thus, the medical approach to our gender identities forces us to rigidly conform ourselves to medical providers’ opinions about what “real masculinity” and “real femininity” mean, and to produce narratives of struggle around those identities that mirror the diagnostic criteria of GID

Documenting Gender, Dean Spade

Over time, state and federal agencies have created variety of policies aimed at allowing gender marker change on documents commonly used to verify identity

These policies emerged from a growing awareness to the existence of transgender

Rules of gender classification differ across jurisdictions and agencies responsible for enforcing these policies:
Spectrum of policies:

No change allowed ever (see Littleton)
Specific surgeries
Prior legal changes (on your way to physical changes)

Spade may argue this keeps normative mode

Medical affidavits

A large subset of gender reclassification policies requires medical intervention – the type of medical intervention differs across policies

Conflicting policies lead to a range of problems – i.e. DMV records not matching Social Security records

Defining Male & Female: Intersexuality and the Collision Between Law & Biology

The law has largely ignored medical conditions in which an individual’s sex may be ambiguous – approximately 1-4% of the world’s population may be intersexed and have ambiguous/noncongruent sex features
A variety of factors could contribute to the determination of whether an individual should be considered male or female: chromosomal sex, gonadal sex, external morphologic sex, internal morphologic sex, hormonal patterns, etc. – in most individuals these factors are congruent, but in those where they are inconsistent or ambiguous, DOMA and other state equivalents must figure out which factor(s) will control
Sex: sex is commonly used to denote one’s status as a man or woman based upon biological factors

Established on a birth certificate, determined by birth attendant à man defined based on their ability to penetrate (“adequate” penis) and females are defined based on

al conduct (no court takes this argument seriously)
When most laws were enacted, medical procedure was hazardous for women, therefore it was actually to protect lives of women

Modern medicine has made this argument very weak and legal abortion procedures have a lesser mortality rate for women than for natural childbirth
However, the state still has a legitimate interest in ensuring that abortion procedures provide maximum safety for patient and state retains this right especially at a late stage of pregnancy

State’s interest in protecting prenatal life

Fundamental Right to Privacy Within Abortion

A women’s right to privacy is a “fundamental” right under the 14th Amendment. The right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. Therefore, the legislature has only a limited right to regulate – and may not completely proscribe – abortions (this is subject to strict scrutiny).
TX needs to show that there was a compelling state interest for the statute, which they argued was (1) maternal health & (2) potential life. (1) is only compelling after the first trimester; (2) is only applied during the last trimester, when the fetus was viable.

Planned Parenthood of Southeastern Pennsylvania v. Casey (SCOTUS 1992)

Rule: To protect the central right recognized by Roe while at the same time accommodating the State’s profound interest in potential life, the undue burden standard should be employed. An undue burden exists if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.

Facts: PA statute placed a number of restrictions on abortion, such as a 24-hour waiting period and informed consent requirement

Rationale/Holding: Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the 14th Amendment

Viability rule still applies: because of 1) stare decisis 2) concept of viability being at the time at which it is realistic for the fetus to maintain life and state can have an interest in protecting that life
Trimester approach rejected: the joint opinion did not agree that the trimester approach was a necessary method of safeguarding a woman’s right to choose since it undervalued the State’s interest in potential life (it completely ignores that interest during the first 2 trimesters)
Undue burden standard: in place of the trimester approach, the joint opinion articulated a new “undue burden” standard: Only where state regulation imposes an undue burden (a substantial obstacle) on a woman’s ability to make the decision to abort does the power of the State reach into the heart of liberty protected by the DPC
Fundamental rights and strict scrutiny: Not every law which makes a right more difficult to exercise is an infringement of that right. Notice, however, court did not apply strict scrutiny but applied the “undue burden” test instead

Class Notes:

“Circle and dot theory” – are fundamental rights like dots, separate from each other? Or are they dots encompassed in a circle: do they act more broadly about considerations of privacy or bodily autonomy and dots are just examples?