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    Julia Greenberg Defintional Dilemmas

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    5 Definitional Dilemmas Male or Female? Black or White? The Lo’s Failure to Recognize Intersexuals and Multiracials JULIE A. GREENBERG Throwghout US. hidory, ws have diferntated between people of different races and sexes. The underlying rationale for this diferent ‘on hs varied. Uni the later pat ofthe twentieth centry, these awe ‘were designed to deny nonwhives and women benefits that were re serve for white men, Correnty, however, laws that eiferentiate based ‘upon race of sex are generally designed to poteet individuals fom rice andsexcbaed dserimination, ‘al institutions have dhe power to determine wherher diferentil treatment based spon race and! exis legally permisble, but they also have the power to assign individuals toa particular racial o sexual cat gory, Ths power to determine an indivi race anc¥ex ha 3 pro- found impact on millions of people who are of mixed-race heritage oF are intersex! The ln’ assignment of invidals to a particular ae ‘aor sexual category may affect an individuals andamestal ight, a= ‘lading her right oi) certain governmental and employment benefis (a) selidenty race and exon oficial documents (9 marry a one's el entifed sex, and () protection from discrimination under the equal protection guarantees ofthe US. Consiuton Mle or Female? Bo Wie? 7 Originally leg clasication systems based upon race al sex per aceon the assumptions tht) Face and sex are inary. and (race Sl sex can be billy determined, Most schoats a egal inst tions have rejected these assumptions as they apply 1o race and now be live that race is no binary and it eannot be defined solely by biological factors. In alton, the majority of scholars and legal instions ‘agree that race f largely sacl eomstraced, Sex, onthe other hand i “ell eeated by society and lea institutions as ie were binary, una Diquous, al easily defined by biological factors, despite siete evi dence tothe contrary and the existence of milions of transgendered in dviuals who challenge gender boundaries. “This chapter explores the history of legal lssicaton of individuals inthe United States based upon their race and sex Ie uraces the evol tion f the current racial clasifeation sytem from it racist origins in the “one-drop” rll, whieh assigned anyere with one drop of “black blood othe blak race to tseurrent conception of race a socal sical construct It then rtiques the current sexual classiicaton system that bases ex assigument om stereotyped assumptions about what it rears to be male or female. Finally, it explains why the category “sex heeds to be deconstrte inthe same manner that racial categories are tring deconstructed so that ansgendered individuals receive the same legal protection as thoe who are not ranageered ‘The Legal Construction of Race Determining & pervon’s racial status has been a major ise in the Unite! States hroughon its history. Race has meant eiferent things silferent people at diferent ces, and determinants of race have varied ‘deperling upon the purpose for which the racial casifcation was beng established la the earliest cases, racial determination controlled tthether someone was free ora slave an typically Foewed on those of tnised-tace ancestry. Dating the lt half ofthe aneteenth century and Jno the fs hao the teenie, racial determination cases generally focused om whether an inv was ented tothe superior legal status generally accorded whites, During this time, individuals whose ancestors were not "white Europeans” and those of mixedrace ances try, brought actions to estab that they were white. During the last, hao te went century, wha racial escriminaton became ile vo JOUE A, GReeNmERe in such ateas as employment, housing, and banking, racial determina tion actions wore brought to establish an individual's wight wo be free from racially éscriminatory practices These more recent cases fo ‘ewe on establishing the race of individuals who were of mixed-zace ancesty The Construction of Race in the Nineteenth Century Thice types of evidence indicate how race was defined and determined prior to the twentits century: cennun information, court decisions, and legislation. Traditionally, census data has been wed t determine clectoral representation and allocation of government resources twas ‘not used o prove a person's “legal” race. Therefore, although the cen- sux data is informative, cours decisions and lgiatve enactments fom ‘his ime more accurately reveal the factors that were sed to determine any indivi egal race, During the early part of Uae nineteenth century, dhe census had only ‘wo racial clasifcations wie and Nee In he second half ofthe nine= teenth century, the ensus added categories for mulatos, Chinese, I dans, and Japanese During this period, a person's racial clasification fom the census was based upon # cennistaker's determination of an individual’ race. Cenaus enumeratore were tld o clasfy those who were back or mulatto by visual inspection, For the census of 1870, mux Tatts were defined to include: “quadroons, octoroons and ll persons having any perceptible trace of African blood.” By 1890, somo and {und joined mala a separate classifications, Even the US. Census Bureau acknowledged thatthe data gathered during this time was of ite He use Twas not unl the 1g20 census thatthe one-drop rae became universally accepted and all persons of mixed ancestry were classified according to their nanhite aca stain? Court decisions during this period are probably the most instructive source for idemising the factors that legal isitations Weed to deter rine person’ race. During the ninetcenth century, southeen courts ‘were asked regulaely to determine a person's racial identity These ‘cases determined who was white, and alo established the Factors that ‘were used to establish white stats. Law profesor Ariel Grose has ‘ntken a comprehensive analysis of 6 ral records that have survived, From this era." Gross sty indicates that jurors wore oflen presented ‘with variety of evidence wo help them determine a person's ace. This, ‘rience might include desesiptions and analysis of physical atebues, Malor Femal? Black or White 195, ancestral documentation, sciemifc “exper” testimony, evidence of rep Uation, and evidence of the petiioners conduct in the community ‘Gros’ analysis ofthese cases indicates a marked lack of consensus in the courts abot exit how race should be established. Physical characteristics were one of the most important factors relied pon in number of opinions om thier, Kor instance in 806 Jrdge Tucker wrote in ues Wig! that, even i dark color disap [pears afters generation o two of intermarriage with whites, "a Rat nose ‘nd [a] woolly head of hair... disappears the ast ofall" According to “Tucker, a person who appeared black was alave and a person who ap- peared white or Indian was ee. Chief Justice English of the Arkansas Supreme Court noted, “No one, who is familar with the peculiaefor- ‘mation of de negro foo, can doubs, but that an inspection of that mem= ther would ordinarily afford some inecation ofthe race." Racial determination at this tne wa often intertwined with the {question of whether an indvl was a slave of Free person. There fore, in the eaely decades of the nineteenth century, defendants fre ‘queuly introduced evidence oftheir ancestor sat as fce to help e=- tablish heir racial identi"? By focusing on ancestry, the cours Separated aca lassfication fom skin color, and thoe whose ancestors tad been slaves could wil be cased as "Neyeo” even though thei Physical appearance may have led oa conclision tht they were white. "Seientc exper tetimony also played an important roe in some ofthese eases Daring the middle ofthe nineteenth century, the accep tance of “racial scence” among phrenologsts and medical doctors be- ‘ame more prevalent. Aldhough race was considered tobe biologically Dave and sienialy determinable, “racial science experts” were n0t always scientists, Seientife testimony a this time typically consisted of local doctors talking about “distinguishing marks between the negro and the white race." Tn aditon, courts requendy admitted evidence of a litigants repar ‘atin inthe community and coneict to ascertain her race. Evidence ‘lien consisted of testimony from members ofthe white community a8 to whether an individual had been accepted in white society. In adi tion, cours frequently considered evidence of whether « person per= formed a behaved as white person-for example, by atending white churches, schools, and gatherings and taking advantage of legal ights Available only to white males, sch a8 voting. Although the essence of ‘white ident might have been white “blood,” bloodlines and ancestry ‘sere often unclear. Ava reul, courts reviewed a person's behavior to 106 JULIE A. GREENBERG deteroine wether er conduct indicated her ru nature oe ace, Asa ‘ent during the B50sand ito the 1860 whether a iigam exercised the socal pia, ta legal ight and prvleges fa white pers = vet predominated naa Sevrmitton eves! acl determination ces declined afer he Cr War a ttle isatres began to enact awe defining wo was lac, These elatoe nacents were designed to maintain the bounday ine beeen ‘acs and wits hat ad been create bythe sem of slavery The legion defning ac aie by rion, Some dfned black pe ‘as whch me Hk Ho he te defn blac anyone wth any black ancestry By he oe rule beeame the universal lw Before the adoption ofthe one eop, reigns of aetace ancestry hal an ince fo Wy prove {hey were white beets ofthe scan pil prleges ade hes. Wid the adoption othe ne-dop rule meer ation de Sind bec proot tha even one ancestor vas nonheme, forte prs an inva ace as erie ‘The Construction of Race inthe Batly Twentieth Century “Laws that discriminated against people bel upon thi ail status erection the cat parole weet ety, pte oe immigration and ving estetons, segregated schol and laws poe hb interracial mariage and fornication leat the continuance of ‘aca determination cates well nto the renter ear. Naturalization caer perp bent Uhrte the appeoach cours wed to determine race during this prod because ithe case Court had to arcuate she tos they wsed to determine whether Someone qualified as white" In 17g, Congres rested natural tion o "fee white persons” In 1870 the law was amended tallow Ales of “Afcannahiy” and penton of "Alcan desce” tbe nat uuralized, but this right was denied to other nonwhites” This “racial prerequite” of being white o of Afcan natty or descent ermned tn force unt 1g. During the eal part of the twentieth century. 2 number of peters brought actions to establish te ight onto alze as whites, Two of tse cases reached the US. Supreme Gout In thse prerequisite caves, the courte struggled with te question af tow wo cetermine whether someone wa whe and wha ctr shoud be wel draw rail es between whic and nomi. Applicants from Hawai, China, Japan, Burma, and the Pippin 5 well a2 MalerFonal? Black or Whi? “ rmixed-race applicants were denied white status, Applicants fom Mex: ico and Armenia were considered white, while cours vailated ver applications from persons from Syria, India and Arabi.” In his book Whi By Lav, Lan Haney Lopez analyzes catty ‘wentieth century racial prerequisite cases Lopea’s analysis indicates ‘hat during this period, courts continued the patteras established inthe hineteenth century and weed variety of Factors to ascertain whether a person qualified ae white. Two approaches, those of common kno felge and scientific evidence, predominated in these cases until the United States Supreme Court resolved the issue of racial identification Jn two cases in ga2 and 1923. Ti the i922 case Osa % Untied Saws? the Supren asked to determine whether a person of Japanese ancestry could be- ‘come a cizen under the natoalzation las. The Gourt eld that kin olor was not an accurate indicator of race and instead interpreted “white person” tobe synonyms with whats “popularly known as che Caucasian race” The Coure did not define “Caucasian” because it found that persons of Japanese ancestry were considered non Caucasian by legal and cient authorities. The Court, therefore, found no need to deine citer ofthe term eto Caucasian 3* “Three months later, in Una Sess. Thind* te Supreme Court held that not all Caucasians were white within the meaning ofthe sat tte when i determined that a“high-cate Hindu of fil Indian blood” ‘who was born in India was not a white person. In Thin the court nar ‘owed its Oca holding by limiting the class of Caucasians wh qual fied as whit, It also rejected scientific evidence, which would clasiy ‘hind as @ Caucasian in favor ofa common knowledge starlard Tn r= jecting a seientic definition of Caucasian in favor ofthe common Tnowledge standard, the Cour stated thatthe word Casi under a scientific test would include “not only the Hindu, but some of the Poly hesians that isthe Maori, Tabiians, Samoans, Hawaiians and other) [an the Hamites of Afca, upon the ground ofthe Caucasc eas of thei features, though in color they range from bros to back, We wen= ture to think tht the average well informed white American would Tearn with some degree of astonishment that the race to which he be Tongs is made upof sich heterogeneous elemens." The Supreme Courts holding in Thind indicates that courts when faced with “scientific” evidence that did not comport with thei com mon understanding of race, rejected the scientie framework. These Cay-twenteth-century opinions support the modern understanding Court was 108 JOLIE A, exveNERG ‘hat race as been socaly constructed; race is whatever the average American beiewes itis “Maar Approaches to Racial Clasieation, “Most modern antiropoogits now reject the concep of physica race Although morphological differences eg, saure skin colo, hair tex ture, and facial structure) among individuals exist, these morphologies slferences are not indicative of significant genetic lferences among, the tradionally delineated racial groups” Today, mox. biologist, anthropologists, and legal scholars reject genetically oF biologically based racial lasiicatons" Inaction, the U-S. Supreme Court has acknowledged that clear cut rail categories based upon biologialilereners donot exit. In to cases in which the court was asked to determine whether Arabs and Jews were protected under ci rghtslegisaton originally passedin the nineteenth century, the Court recognized that race ic prot of cul ture rather than nature and that definitions of race have changed over time. Hnstead of looking to enti definitions of ace, the Court looked torninctoenth-century dictionaries and congressional debates to deter ‘mine how race was conceptualized atthe time the leglaion was ere acted, I held that Arabs al Jews were protected under the legislation that probibited rail discrimination, even though they could not be ‘considered disinct races under modern scientific theory.» These Su preme Court decisions support the modern ve that race va eategory ‘created by society and legal astutions. ‘While the legal system now generally views race as sociopolitical ‘construc, the lw ad society sl diferentate among dilerent racial groups For instance, governmental agencies—such as the the Census Bureau, and the Nasional Center for Health States (NCHS), which prepares guidelines for sate and local governments o use ia preparing Face identiization records on birth certificates! ask that ee be indi cated on thei forms * Racal determination cases ar rarely brought today, but the few cases that have been reported til elect some ofthe approaches used in the earlier cases. Racial Clastication by the NCHS Although the race indicated on a person's birth certfiate may not be Aisposiive ofa person's legal racial status itis nonetheless fequently Malo Fenal Black or Whit? 9 used by the courts ta help establish race, From 1950101986, the ace indicated on a newborn's birth certificate was based upon the slF reported race uf the parents, The reporting sytem included ten re- poring categories: Hite, Blak, Amencan Indian, Chines, Japan, Ha tian, Flips, other Asin or Pace andr, Othr Res, and ot ‘Clasfiabl In cases of mixed parentage, in which ony one parent was deemed “white,” the child became the race of the other parent, Irne= ther parent wa white, the child was reported as the race ofthe father, lnless one ofthe parents was Hawaiian, in which case the child wat Hawaiian In other words, one drop of blood other than white blood made a person nonwhite, while one drop of Hawaiian blood in one's ancesty forever created 4 Hawaiian lineage, This lssiication system elie on the parents’ self-reported race, and no atempt was made to ‘natch the parents’ sel-report with che race indicated on ther oficial ‘documents The NCHS abandoned thi clasifcation system in gg and instead adopted a system in which a childs race is the same race as that which the child's mother reports Ifthe mother does no indicate her race, then the chiles race hecomes the race that i reported as the father’s race Irnether race is known, then the eace ofthe child becomes the "ce ofthe maternal ancestors with race indicated. This aca asi Cation syste eases a numberof anomalous results, dhe most obvious Ding data child ofa white mother and black father is white, while a child ofa black mother and white father is black. In other words, racial ‘lasfcation on oficial documents in the United States matlines- ifthe mother's race can be determined." Racal Casifcation by the Census “The racial information obtained from the US. Census is dhe main source of dats sed to impement number ofimporant egsative a. Cents atic are wed oeablsh ving dss, ensure he euita- be slloation federal monies, an enone cris ws inthe femployment, housing and education ens data, ike NCHS dt x bse oo a seporting stem. “The eens form currently proves Hive rial claiestions: Amen Indo las Nat, in Pai ede, Back, Whi, and Ot The ‘urtent system allow idvidals to check more than one racial bos fn the federal goverment bas a complicated pte fo folding back io the sand categories the miios of people who mark Ode no JOLIE A. GRENIER Tins, the Census Bureau assigns a rae to some individuals that may not accurately elect their selt.identiied race or the race that wciety ‘would ascribe to them. In addition, Congres has considered and e- jected the addition of a multiracial eategony. Racal Casfiaton bythe Courts Although the NCHS, the Census Barea, and other government agen ies keep records on and have guidelines to determine an individuals ‘cial assification, an individual's legal race can only be established in 8 court proceeding, andl no oficial dacument is considered a dispos? tive determinant of race. Very few racial determination cases were brought to cout in the latter part ofthe ewentieth century, and in the cases that were, no cohereat racial et could be discerned. The cours have acknowledged that racial clasiication i “deceptively complex” because of the amogphous definition af race and the dificult of elas fing individuals of mixed racial ancestry.” Furthermore, courts may define race differently ane focus on diferent factors to evtablish race depersting upon the purpose fr which the racial classification is being ‘established Although recent cases employ a variety of tests to determine race, an analysis of these cate indicates that current racial determination ‘methods are stil based upon many of the factors relied pon in reteenth~ and eariy-awentieth-century cases. For instance, in the 19849 case Malone. Het, the court used three-part tes o determine wether two brothers who had been hieed by the Fire Departient as black were actually white. The thre factors were ()vimalobservar tion (2) documentary proof such as bith certificates; and (evidence ‘of reputation inthe community, Based upon her fat hit and light ‘complexion; their bir certificates and the birth centifcates of thee an cestors and the fact thatthe Malone brother, their fails, and the black community had not considered the Malones black, tt court de- termined that the Malone brothers wete white In 199}, a federal district court in Ohio looked to four sypes of evie dence (ffl records, seFidetifcaion, evidence of reputation, and ‘Physical characteris) to determine whether the plainilf was ented to protection from employment discrimination as an American Ine The court decided tha the plainti'sstatus ean sch was fa tal question to be decided bythe jury! The testimony inthis 194 ‘ase was remarkably similar wo the testimony in cases decided 150 years Male or Fava? Bako White? o eatlice for instance, social worker, who had worked san “Todian AE fats Specials,” esifed that no matter how much “Indians” had been nixed wit other races, one “ast [coulda’t) hardly miss some feature Sn ther,” like a facial feature or complexion. "= : Tn 1 in Dee. Laon,” plains wanted their ancestors birth certificate, which had been ised between 1919 and ro, to indicate that ther Emily members were “white” instead of “colored,” During the tral, evidence was presented about physical appearance, ancestry, releidenticaton, and community recognition. The Louisiana appe!- late court acknowledged that racial designations are purely socal and ‘itaral perceptions Ie alo found that the plants had not established ‘hat thelr ancestors selEidentified as “white” as opposed to “colored ‘Therefore it held thatthe state did not have walter the race from “col ea! to “white” on the ancestor’ birth cette. ‘Most people look with iain atthe ever approaches to racial de- termination because of the acs stereotypes that supported racial as Seaton. The current racial classification methods, however, look to the same types of evidence that were wed 150 years ago. Society and “Current ws designed to protect people fom race discrimination con tinue to diferente among people based upon their race, an there- Tove racial elassifiaton ystems are inevitable Curent rail cassie Cation syntems acknowledge that race i in lange part socially “Constructed, but these clasfiation methods often ignore selfeatiied rrce in favor of “objective” racial indicators, ‘Mixed ace persons may have a varie of “oficial” races, Their a cial clasicaton may vary depending upon whether one looks at che ‘ace indicated on census data, the birth certificate, the death certfiate, Seother oficial documents sich as school records. Furthermore, these heal documents may be inconsistent with the race that would be e tablished in a cour proceeding ‘Scholars in numberof esciplines are engaging in vigorous de- tate about (whether race exits; (2) race does exist, whether it shoul be legally relevant; and (g) race is legally relevant, how it Thould be defined: This critical study of the meaning of race isin Tange part focusing on those whose ancestry incudes individuals fom more than ne of the traditional rail categories. Tis multiracial Usoune has not yet resolved the controversial issues regarding race, bu it is advaneing our understanding of what race means, how it Should be defined, and whether tho law should dllerentiate among, tllferent racial groups ne JOU A omen ‘The Legal Construction of Sex Although chou ina numberof iin id eg into have teen examining the meaing of race, rch ee ateton han Ben fo ced on how legal insane have defined and dou deine sex Jus a sre lg enemens depend upon aca asicaton, some fundamental legal rights are also sex bated. Hooray, women were deed the right vote, own propery. and work cern joe, A though women ae no abl ten ay ofthe ight they ere pre wiualy denied the law's caren denon of sx ll alec an invita’ bly to marry; ta contol o's ex designation on aia Shes te in det de ep tment discrimination ates and consonant of equal pro tection. In adlton sx aefiaton may contol one's oli tiny, oil ec anedinsrance Benes abi toasted single inna he ih oe nerd wa af ‘me exer eri concton Sex asain sl continue toe base onthe sumptions hat sscerly have been reeted in aia csifeation case Sex pe- timed tobe hinary an exsly determinate by an analysing Gseton. Despite anlropologal and medial ude he contrary Git presumes an unambiguous binary sex paradign in wich ling ‘iis can be asi ety ad easy alo mae Gurren esearch nica hat from 1 og preen othe wos opto dos not int namiguns vex esters Milions oF people are intecvexe nother word they have some biologi in {sto that ae taonlly ascend some loa indicators hat are adonaly sociated with emale, The manne in hich haw defines he tamale fol ad a have prea npc on thee indi The Medical Determination of Sex ‘The biological aspeets that control sex determination have not been conclusively resolved by medial or legal authorities. numberof fa tors can be uted to establish a persons “lca” sex. These factors ine clude chromosomes, gonad, external morphology internal morphol- ‘ogy, hormonal patterns, phemosype, assigned sex, and selFidentiied sex. For the vast majority of individuals, these factors are congruent Motor Fema? Blak Wie? 5 anda person's legal ex is uncontroversial, Fo millions of people, how ver, one or more of these factors are incongruent with the other fc {ors For instance, individuals with androgen insensivty syndrome have a male chromosomal pattern (XY) and male gonads (estes, ‘puta female phenotype external appearance). These individuals are viewed by society ax female and are often unaware oftheir unde- ended testes and "mnale” chromosomes. Ifthe law defines them ax tale based upon their chromosomes and gonad their legal sex will ‘otcomport with their self-identified sex andl the sex that society would sitribute them. "A number of other condions, such as Klinefler syndrome, Turner syndrome, Swyer syndrome, congenital adrenal hyperplasia and 5 flpharreductase deficiency also cause infants to be born with a combi avin of “male” and “female” biological indicator. In addition, transsexuals have aselPdentiy that does not comport with ther blog leases indicator "The medica and legal communities have struggled to determine which factors should control sex atsignment fr these intersexed ind ‘dal Although most people believe thatthe determinants of x have ‘heen consistent and usambiguous, the biological factors that have con= tlle ex determination have varied throughout history. For example, ‘ing the late ninetenth century and unt World War I, shen repro- tluctve function was considered one of woman’ essential charter tice, the medical community decided that che presence or absence of ‘varie was the alimate criterion of ex ‘Garreny, however, ex assignment at bith is based on combina sion of chromovornes and genitalia. The presence of an “adequate” penis at bith in an XY eid leads toa male label Wan XY inane i Fron with what the experts consider to bean “inadequate” penis (ypi- cally defined as less than 2 entimeters when fly stretched, the XY hil i usually altered surgically and hormonally and “turned into” » ih In other words, medical awboriies clas an XY infant as male if they believe that his penis wil be lage enough fo enable him to pene trate a vagina and to inate while standing when he reaches matur- iey3t Female sex assigment, however, isnot based upon the adequacy ‘atthe vagina but instead foewses more on the XX chil’ potential for Feprodtion. Iran XX infants potentially capable of reproducing, she issgned the female sx even ier “phallus” looks mote ikea penis than clitoris the phallus i considered to be “too Large” fo agit Issungialy reduced? ny Jour A, oRERHE RC ‘Therefore, although ex asignmenc is based on biological fatos, i has been socaly constructed, XY infants with “inadequate” penis sunt be ture into girls because soeiey believes the essence of ma bcd isthe aby to penetrate a vagina and urinate while standing, XX infant ith “adequate” penises, however, are assigned the female sex boca society nl many inthe meal community believe that thee sence of womanhood ithe abilyto bear children eather than the abi ity wengage in satisctory sen Until recently, medical profesional were willing to alter an infant's sexual attributes because they believed that a person's slFidentified sex could be easily manipulated. This assumption i now the subject of 8 vigorous debate in the medical community. The debate has been ‘timalated in large part bya study published by Milton Diannond and H. Keith Sigmundon in 1997" The study traces the development of a hoy whose penis was acidentally damaged daring a botched ecm sion when he was eight month old. Believing tht sex could be manip ulated and that a boy would be traumatized ithe was forced to grow up with an inadequate penis, the doctors recommended that the boy's genitals be reconstructed i have a female appearance and he be rssed 44 gel eventhough all his ther sexual factors were congruent and ‘were male. The child was raised asa girl and underwent surgical and hormonal procedures to create a female appearance." Thissargical l= ‘eration ease made headlines in 1973, The doctors invalved inthe pro- cedure reported that the child and parents had suceesflly adapted {he sexual alteration. Based upon this and othe similar cate, the ae ical and psychological communities believed that sex dferences and ‘Sexual identiy were not immtably set by genes at conception and thus cot be medically altered. Tn 1937, however, Milton Diamond and Keith Sigmundson pub lished their long-term follow-up report on the child. They reported that the sexual aleration was nota success. The "boy turned gil had al ‘ways felt he was a boy, and asa teenager he rejected the male hor- :mones he was being given and chose o undergo another series of p= fal surgeries to become male again. He is currently living asa na, i ‘married to woman, and is helping her to raise her dhreeehilren.® This report exemplifies the dificulty that law and medicine must con front in defining sex. Based pon this and other similar reports, some in the medical, scientific and socal science communis ae haw question ing their longheld bei that sex can be easly manipulated Jost 96 these communities ae starting to question their belies about hove sex Mor onal? Bako Wi? 5 and sexual identity are determined, the legal community needs to ex mine the factors thas used o establish a ndvidua's legal vex The Legal Definition ofSex ‘Phe vast majority of reported court decisions that have discussed the criteria that should extablah a person’s “official” sex have involved. transsexuals. Only to eeported casts have involved intersexuals who ‘were not transsexuals Jas asthe determinant ofan individual’ Tegal face have varied depending upon the purpose for which the racial clas Seaton was being established, the determinants of an individeal’s legal sex have varied by juriiction and by the purpose for which the sex designation mas being established. The majority of cases have ine \obved thee sues: the right to marry, the right to change the wx desig pation om oficial doctments, nd the ability to tate a elaim for employ ‘ent dserimination based upon sex." Sex and Marriage (One ofthe major legal ramifications of sex assignment i the ability so ‘marry in accordance with one's se'identifed sex. In response to the fear that Hawaii or some other sate would recognize same-sex ma~ riage, the US, Congress anda number of tae legatures have passed laws defining marriage as union of one man and one woman. In states in which the legislature has nt adopted a statute, the courts have ‘ypicallyasumed that vale nariage requires two people of opposite ener Although the statutes ulize the terms male and nae, none ofthe Teglation defines dese term. Ava rest, courts have been asked to de- termine an individ’ legal sex for purposes of marsage ine c= tsumstances: when two people who are arguably ofthe same vex seck a marriage eens of when one of the partes toa marrige secks to wid ‘he matriage based upon the jurisdiction’ prohibition agains same-sex marriage, The courts in these cases have split sharply over how to define the tems male ane fale In cases involving transexva, aoe courts have relied titty on biologeal itera uch as chromosomes, gonads, and genitalia) to de fine sex. These courts have analyzed the biological fact as dey existed at bith and have ignored any subsequent surgical or hormonal altera- ‘on In other word, n mest cases, the courts have assigned transsexi- isa sex that des nt comport wid thee selPideniied ex The most 16 JULIE A. GREENAERG important bloga actor in these eases generally has been the ap eance ofthe gent, butsome cours look to combination ot ial chrmonne goa deine sen nto con, cours have determined that for purposes of mariage the «cliente sex ofa transexual ithe perso’ legal sex In the one epotedmaral annulment cae involving a ints ‘al the “husband” who had been ried as al and ented ss mae tad XX chromosome nl a combination of ale ad female pia atribues He had undergone a number of eargres to “corre it senitala and to remove fis beats tat his exer appearance ‘oul be male. tthe dine hit wie sought a alent de coupe tad been marie fo ele yeas and ha aed two eden The court annlled the mariage om the ground that the husband ws nee thera nor female becate he had mal gona and genitalia chromosomes ofa woman. The cour ring implied that interes ‘who have a miu of mal and female bilgi ates ate nether ima nr female, abd hs they cannot ally mary anyone =" The court deions that define sex Based upon the biological ex factors present at Lit have ened in what many would deine se satesanctonedsamesex mariage, For inane the Usted Ring dom, and the sats of Oho, Oregon, and Texas, al prob samen tmariags. These jurisdiction lo have ruled that tran al rea thesexasigned to hem ati, Ineah ofthese a woman snared a'maletofemae transexual, The tenses "hana" ented as women ad sia Despite the poh in hee Tndctons agains gay andesbian martage, these marrage alge because the malesorfemale transexuals eel iglly me Sex Designations on Oficial Docuen ‘Many oficial documents, inching birth ceria, passport, asd drivers eens indicates inva se. Tee doco oe we fr asariey of purpoencuding secoriy earances prof fesises ship, and selective sevice ceitraton. To adn ne yee ton thes documents contol whether fen ar ary tts 2 woman. The factors hat conta hws deste ont penn. cil documents may vary by coeament and by rls Because the bi ere the fr fica dorument wo desigate sex iven conto the sex deignton on all ler docu See onthe bith erteate wl etabled yt mete senda Maton Beal? Black or Whi? ” assisting atthe birth. As discussed above, dhe olicial sx established on the bint certificate s primarily controled by the appearance ofthe ex {ermal genitalia, although chromosomal patterns and ability to repro- thuce are also considered, Ifthe external genitalia ate ambiguous, they fare usualy surgically aleve so that they conform with the sex assigned ‘on the birth eriete Some jurisdictions have adopted states that allow transexa 10 amend their birth cesficates after they have undergone “sex reassgn- nent surgery In juriictions in which no eglave authority exists, the cours have generally held that wansseauals are not ented ‘change the sex indicated on thee birth erteates. In other words in birth she sex that wl remain on tnt ri the sx ged the inh ceria The origina se esatd on «United Sates panpor i pil the see dengatd onthe ith cerificatesTranmexual can change theses designed on ter asp odie the widened sex {fey submit proof tas the have undergone or ae about nderg> tne reasigment surgery. Therefore, the ex designation onthe Fespore may nt comport nth the ex designated onthe bit ect Enea penon was bor in raion tat docs nt allow rane So aker the sx designation on ther ith etficates The orga sex designated on 2 pers eve’ ese wil pi cat natch ex nated on tee be ate regres {of age and Wenticatin to acquire a drive's Heense. Over one- Tat of the sates inthe United States, however, allow inviduals 1 tied the wes ndeated on hee ene Mow eae ii his ht postoperative anexuas bt fw tates abo alow peeopera {Re wamoeao amend thei de Beemer wll” Tnaome sates the departzent of motor vehicles will allow an nent he xo ive ene whe he erin ry in charge of bith records wil ot allow an amendment othe Ui crete Tecan inva “fil "ante 09 the ofl documents sed by sate autores ay be inconsient Sex Discrimination An nse closely related to one's status as male or female is whether in ivdals who are inersexed, an therefore not clearly male o femal, can claim protection under federal, state, and local statutes that pro: hibit discrimination based ypon "sex." Just asthe marital and oficial na JOUE A. OREN. document statutes donot define the terms male anc own, discrimi tion statutes donot define the term se: Courts therefore have hd t0 decide whether discrimination agains people bared upon thet status as intersexuals constitutes "sex discrimination. ‘Only a handfl of courts in the United States have addressed this Sssue, and most have decided that discrimination against tana not discrimination based upon “sex” for purposes of federal and local legislation. In addition, one court has considered whether fring an imersexual based upon her intersexual stats is discrimination based upon sex. The court deeded that employment dicrimination satates ‘were enacted to protect “males” and “females” ftom sx dsrimination, but they were not designed to protect intersex because intersex ityismot par of the traditional binary sexual clasification system.” Conclusion CCassihing an individual as a member of «particule race oF sex can have a profound effet on that person's ie andl may determine whether the person is ented to fundamental constitutional and statutory pro- tection. Rail elasifcation systems in the United States were originally based upon racist and sexist sereorypes about people of color and ‘women. Although today rae and sex-based discrimination i generally not legally permissible, cutent racial and sexual clasication system arestll to some extent based on outdated assumptions about the nature ofthese identity categories istrially, cours looked to “scientific evidence” to provide guid- ance on how to define and determine race. Courts and scholars who ave participated in the recent examination of multiracial ues have rejected “siento” definitions of race andl have begun to deconstruct racial categories, Because race is now largely accepted at 4 so construct, many race scholars are proposing that greater cpa be placed un the significance of elidenied race, Just as cours looked to scientists to define race, courts tradition looked to meicineto hep define ex. Many expert medicine, socio ogy, history, anthropology, and gender studies are in the proces of eX- ploring the meanings ofthe terms sy, male and fale These experts are liscovering that se is no inary: it cannot be easly detcrmie by b= legal factor; and, to some extent ke eace, it has been socially ot structed. though some sates allow people wo seldenty their sex on Mak 7 Penal? Bacto Whi? 49 some official documents, forthe most pat, legal institutions continue to ‘bave sex assignment on the traditional assumptions tht sex s binary and can be easly determined by analyzing ialgical factors. ‘Race cholas are exploring the meaning of race and deconstcting racial categorization, Sexual categories need tobe simiasly examines ‘his examination must focus on whether sex shouldbe limited tothe two traditional categorie of mar and fnaleor whether it should be ex panded to including intersexuality asa Casifcation. Lega insitations ‘ust aso exanine whether the la should continu to define dhe terms Ina and fale according to sit biological eriteri, such as chromo- Somes, gona ad genitals, or whether thes factors shoudl be subor- dlinated to eidentiied sex Notes 1. Tnteremuals ar india ws have 3 combinaion of male and female alts They may be tase hse sede sx dos ‘tot comport with thers oftheir bilagial sex indicator they may be intel prope whore biog sexidatr are not al congrura Sex clacton asaya been Based ypon the asap tha sexs binary. Thelaw ecopizesony two exes rale and female Many cra ace Sehr, who are dedicate wo challenging racism ip this count, als ve ‘Sevin binary eons by cfertng to whites and noneitr. Noval woul agree, Frwever tat ace ha aways been treated as binary Deeaus society ad ea [tuts have at neces acon these eatent to al ones Tor example, Thoms Jeerson, weit in the ate eighteenth centr, de ere Native Amer al bck a ellerent races wit very dilleen char crises. See Aston Sewabach,“Jtlerson and Sliver,” Thoma ifr Tine ew gun 82, for cui of eesons views on ae. A Though Jeieso wrtgs donot neces rete sot ews on rae 8 ‘ne ofthe pray creators othe US, legal te his views are nowt. Sime leiden for ths er ncates however, that many dd concep Aline races binary some sed nin and tha erchangeable ers in raps t ced Bako Ng See theese dese Avia. Gros "Lt ‘dating When: Tras of Racil Determination nthe Nineteenth Cetry South ee Lae ora! 8 (8109, 4am Ta this esay Lefer ta bi tury tal clon syste in tose the United Stes legal stern {id wot recone a minevace clacton 2 id other said, ch South Abi where mulatos Hed, tend, and voted separately Lom aes and (he lnw reserved many oft Denes excel forthe ind ‘iat that else as wie (a oppo o nonwhite). Although society may have viewed tome racial rope inferior or superior to each ober the laws generally elsif all those who were not of white European ances ay instr to thse who wer ofc ancestry ‘5 Thischpeer eats race and ex ar dice categories becouse the aia ands etemination cases donot overlap. The lea ipletons ing a wont aoe are complex adeno ay be anand by pati re al stat om eal ats. Sere te ates i Adrien Katherine Wing, (ital Ra, Fannin A Reader New York: New York Universy Pres, 19 1 Sees Pan, Lae Cnty Dig of Uti, 60 F.Supp. 1262 (ND. io 19) Although the tian Pk ought sat as hits ob ‘ain job hence that they wouldnt terse have bane, the prevent traci in or society has eased some individual oseck to ave the egal stausestablshedas wie Astecety a 1, fay in Lona unucce Fully peoned vo have thei iii acumen eft that heir parents were "White" rather than "Galore." Dae: State pg So 2439 [La Ch. 8. 5, Bureau of the Census, Ta Hed Yer of US. Cas Tn aplatin nd Hawn Questions 70 1g90( Washing, D.C. 198). The akon of hee ‘ew clasifiations oul be inerpected a ejection a binary laifiction ‘sem, Some commentator bre tht these muliglecteorts are a fee tin of thesia communis llr t crete a more complicated sytem Father than ash in sce toa mural model. Chine Hila, “The Devil andthe One Drop Rule Rail Categories, Mean Aerie a the (US. Genny” Miigan Law sn an 16,18, 6, Hicknan, “The Devil andthe One Drop Rule 8.10 king Bo ea of the Gens, Gas be, “Population,” tei, Boose he en sus enumertors ascertained each person's rae, rai entbeation could ‘ange depending on the enumerator’ sbjerveswesnent Far exarpl, Saly Hemi and ee chron were mei x ack slaves of Fora fe feron during his ie, bat were ned at white bya ens taker in 13, See Schwab, "Jefeon and Slavery 2. Hickman, "The Deland the One Drop Ru,” 186 8 Akhough many ofthese cases were Brought o determine tigen status as few o save ial sent hada numberof ee egal aications For example only cetain cimes could be commited by blacks acs could not inherit the same way ax wits and a wlite person bing called back ould form the bas for a defaaton ation, 9. Gros, "tating Witenes.” 86, to, Mi 93, 1 Hindi = Whig, 1 Va 1 Hen. and M154 139, quoted in os “Ltigating Whiten”. 1a: DanC A (86 quoted in Gi es” 8 Gro, Liang Witenes,” os "Liiating Whi Mle or Female? Black Whe? Pa 4 i tS hel 1% 8 Bek {8 Kemah Payson, “Check One Box: Reonering Diet No andthe Chasteatin af Mie Race Pel” Clima Lae Rie 8 (2985 to ea Me Naralaton isthe conforing of the naonaliyofate pon a pe sen ter ih Tan. Haney Lape, Whi by La Nee York New York Uaivesiy tre 2 a 2. Iz 25. Oona Une Sit, 260 US. 8050) 3 Mot hed St, 26 5.209 23) 3 ian Jp ote word an ent characte ar uigu 1 any para sacl gop. For te, cso ot ave ay ees that niu to Hacks ot hes Sic at detonate tga yes vay moe ‘itn ail up tha vee al roup ore tures that Sepa sorted wshprsear eae grape ratte sino, ti aa aca eur ot cot ony wah geet varia anF Haney oper Th Soil Conseco Race Soe Ofvcrvann ‘Sin Fabeaton, and Ges Hosa Gt igi Gi a Rae tog "PF See Hickman, “The Dv andthe One Drop Ra ayn,

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