Op-ed: What's Missing From Recent Trans Marriage Victory Celebrations?
This year has been better for us than others — Laverne Cox and Janet Mock have taken the nation by storm, transgender children in California have retained their right to participate in sex-segregated school activities on the basis of identity rather than medical status, a handful of states have affirmed our right to access vital health services without discrimination, and mainstream media outlets have come out in support of our full and equal citizenship.
With more Americans than ever hearing our stories, becoming allies, and committing to extend a slew of much-needed protections in municipalities and states across the country, it seems like just a matter of time before courts catch on. At least, this is what some journalists and pundits are saying.
Just last week, two courts -- a trial court in California and an appellate court in Colorado -- issued decisions affirming transsexual men's rights to enter into and dissolve their opposite-sex marriages. The tantalizing hook for both cases is that neither of the men involved -- Thomas Beatie nor Buck Angel -- had undergone genital reassignment surgery. (In fact, Mr. Beatie and Mr. Angel are quite (in)famous for forgoing surgery.)
While I am relieved that the courts recognized both men's male identities irrespective of genital status, neither case is a clear "win" in the long run, let alone a tipping point for trans rights. For starters, both cases are subject to appeal to higher courts.
And, even if they are upheld on appeal, we have good reason to be wary of their legacy. Though these cases represent hard-won personal victories for Beatie and Angel, the rationales underlying the outcomes bespeak a deeply deficient understanding of trans justice issues generally, and high-stakes gender recognition litigation specifically.
Let's be clear about what these courts did do. Both decided that transsexual spouses who have legally changed their sex shall be treated as their new sex even if they have not undergone genital reassignment surgery. What these courts did not do is break new ground. Though there are only a few dozen cases where this issue has been directly addressed, other courts have come down on the same side for good reason -- basic principles of legal formalism, comity, and full faith and credit mandate it.
So, what should these courts have done differently if, in the end, the outcomes were good? And, more importantly, why should we care that neither court saw fit to do more?
Impact cases like these are about more than just outcomes for individual litigants. What lawyers in the field are seeking is strong language coupled with community-attentive rationales that sketch out basic principles that help guide other courts in the future. There is no better way to do this than for courts to -- as Justices Ginsburg, Sotomayor, and others are accustomed to in matters of racial equity -- speak to the underlying structural, institutional, and cultural biases that precipitate this kind of litigation in the first place.
We did not get that here. Neither court sketched out a strong basis for why a win is necessary beyond a rudimentary and formalistic assessment of the portability of out-of-state gender change orders.
What more should the courts have done? Well, for starters, they could have pushed back on the fundamentally unfair positions Beatie's and Angel's wives took.
Neither court foreclosed the wives' challenges to the legality of their marriages on basic equitable principles of estoppel (essentially, a kind of safety valve courts invoke where fundamental fairness requires a particular outcome). This would have been an easy way for the courts to directly respond to and affirmatively shut down legal challenges premised on the idea that trans people aren't really who we hold ourselves to be.
Moreover, it would have made it clear that nontrans people's opportunistic litigation of our legal status where and when it suits them is both legally unsound and morally repugnant.
The Colorado court had the opportunity to do even more. It could have fully embraced the opportunity to scrutinize the trial court's spurious and offensive logic that a transsexual's amended birth certificate prima facie requires the kind of exacting scrutiny normally reserved for cases involving identity theft.
In other words, the court could have spoken to the problem with this entire line of inquiry, rather than rationalizing that the trial court was mistaken in its belief that it was its duty to deny Beatie's male status on the unsubstantiated hunch that had his home state known he would carry several pregnancies to term, it might have denied it.
The tendency of jurists and other legal agents to presume transsexuals are not really members of their new sex -- despite medical affidavits, court orders, and identity-affirming IDs to the contrary -- is a huge problem. It creates substantial barriers to recognition and access to marriage, death benefits, voting, military service, and public aid for many.
Few courts have openly acknowledged how biases of this kind perpetuate inequities and relegate us to a lesser-than status. It would have been truly groundbreaking had the courts done so.
So, despite the fanfare, these two decisions reveal just how much work we still have ahead. As we move forward, we must not forget that -- despite incremental wins -- the rationalizations and biases harnessed to deny us full and equal participation in society are not yet openly admitted, let alone readily confronted.
Without a doubt, Beatie's and Angel's wins will help lay the groundswell for the long-sought tipping point for trans rights, but we are still a ways off from our Brown v. Board of Education and United States v. Windsor moments.
A slightly modified version of this piece originally appeared in Original Plumbing Magazine.
EZRA YOUNG is a postdoctoral scholar at Columbia Law School in New York City.