Phyllis Randolph Frye - Attorney at Law, Houston, Texas

I. Introduction

Christie Lee Cavazos legally married Jonathan Mark Littleton in Kentucky on December 31, 1989.[1] For the next seven years, Jonathan and Christie Lee lived happily together as man and wife, enjoying their marriage and their life together in much the same way as any couple.[2] That happiness ended in 1996, when Mr. Littleton died as the result of alleged medical malpractice by Dr. Mark Prange.[3] Following her husband’s untimely death, Christie Lee Littleton filed a wrongful death suit against Dr. Prange under the Texas Wrongful Death and Survival Statute.[4] Dr. Prange filed a motion for Summary Judgment, asserting that Christie Lee Littleton had no standing as a surviving spouse to bring the suit because Mrs. Littleton was a transsexual.[5]

On October 27, 1999, Chief Justice Phil Hardberger, of the Fourth Court of Appeals of Texas, located in San Antonio, declared that the Littleton’s heterosexual marriage was invalid.[6] What information could possibly lead to such a conclusion? How could a judge ignore a marriage license, a wedding ceremony and seven years of happily married life? Chief Justice Hardberger concluded this marriage was invalid because it was a same sex marriage.[7] Christie Lee Littleton had been declared a male at birth.[8]

Christie Lee Littleton was born as a healthy baby, declared to be a boy, and given the name Lee Cavazos, Jr.[9] In 1977, after years of struggling with her identity, she legally changed her name to Christie Lee.[10] Three years later, she had undergone three corrective genital reassignmentsurgeries and, by all external appearances, was female.[11] Her genital appearance was corrected to finally match the gender she had identified with her entire life.[12] Disregarding the above facts, in Littleton, Chief Justice Hardberger concluded that because she was declared a male at birth and presumably had XY chromosomes, Christie Lee Littleton would always be male.[13] He wrote that gender is “immutably fixed by our Creator at birth.”[14]

The decision reached by the court in Littleton underscores the need to remove or ignore the present body of case law and social mores that operate against transgenders. John Irving’s book The Cider House Rules[15] and the movie by the same name[16] serve as a clear parallel to the jurisprudential approach we must take toward this type of a legal environment. In The Cider House Rules, the experiences of Homer and Candy, both at the actual cider house and at the orphanage in St. Cloud, reveal a profound theme that cannot be ignored. In life, we are confronted with sets of rules that are legally imposed or socially ingrained. If these rules are absurd or inapplicable, we must ignore them to live our lives until we are able to change the rules or create new ones. Similarly, so long as the laws and social mores of society are absurd or inapplicable, transgenders must ignore them and continue to work toward having the rules changed or removed.[17]

II. The Social and Legal Context

A. Medical Science and Transgender Images in Popular Culture

A review of medical literature and the social culture shows that transgenders experience slow but continuing, progressive gains in the medical arena and society at large. Outdated medical thinking[18] still exists in some ways,[19] but the medical gatekeepers are meeting an increasingly healthy transgender population that does not need “clinical treatment”[20] and is not guilt-ridden.[21] Indeed, transgendered physicians are emerging and educating their medical peers.[22]

Even in the recent past, however, transgenders have been subjected to hate, violence and discrimination. They are targeted by religious groups, which often speak out against extending any protections to transgenders.[23] Tragically, transgenders continue to be the victims of frequent hate crimes.[24] In some instances, inaction by police or other government officials leads to the untimely deaths of transgender victims.[25] Transgender activists continue to seek a hate crimes category for transgenders that is separate from the hate crimes category for homosexuals.[26] Transgendered people continue to be subjected to various forms of discrimination and are often confronted with problems finding shelter or gaining access to health care.[27]

Although transgenders are not universally loved and embraced by all members of society, life has slowly and painfully improved for the transgender community as a whole. Transgenders are politically reintegrated with the lesbian, gay, and bisexual community,[28] and are coming out to lobby their municipal governments,[29] state legislatures[30] and the U.S. Congress.[31] This situation is not limited to the United States.[32] Transgender legal and political activity is occurring in countries throughout the world.[33]

Transgenders are coming out to their families, employers, churches and neighbors.[34] They, or empathetic transgender characters, are appearing with more frequency in print,[35] radio and music,[36] television[37] and motion picture media.[38] Books about transgenders are of an autobiographical nature,[39] of a biographical or historical nature,[40] of a clinical or academic nature,[41] of a political nature,[42] of a family member outreach nature [43] or of a legal nature written by transgenders themselves.[44] The International Bill of Gender Rights (IBGR) is an excellent example of a document drafted with the intent to express fundamental rights from a gender perspective.[45] The next sections of this Essay discuss the IBGR in detail.

From a social acceptance context, an increasing number of employers, although still a minority, desire to retain their productive transgender employees.[46] The attitudes of these employers have adjusted with the times and transgenders fighting to remain employed with these employers do not have to go to court to keep their jobs and stay off the street. As the attitudes exhibited by society continue to adapt, transgenders should find an increasingly accepting environment.

B. Current U.S. Law and the Cider House Rules

In glaring contrast to the evolving attitudes of society, a review of United States statutes and case law presents a mostly hostile atmosphere for legal protections of transgenders, and even of their legal status.[47] Transgenders have little to no legal protection in the area of employment.[48] In that area, the largest concern facing transgenders remains workplace dress codes and use of gender assigned restrooms.[49] Further, transgenders have no standing for equal protection claims,[50] no right to insurance coverage [51] or government medical assistance,[52] no housing protection[53] or access to homeless shelters,[54] no right to continue their military service,[55] no right to receive prison medical treatment [56] and no rights in other areas pertaining to prisons.[57]

As Christie Lee Littleton learned after unsuccessfully filing suit, United States statutes and case law also provide no protection for transgenders in marriage. In October 1999, in Littleton v. Prange,[58] the Fourth Texas Court of Appeals reverted the legal sex of all Texan post-surgical transgenders back to the sex [59] assigned to them at birth. This resulted in the negation of all Texan post-surgical transgenders’ previously legal marriages to persons whose genitals were opposite to the transgenders’ post-surgical genitals.

Writing for the majority in Littleton, Chief Justice Phil Hardberger wrote that sex was “immutably fixed by our Creator at birth.”[60] Hardberger completely ignored over forty years of effort by the International Olympic Committee and the Amateur Athletic Association in the area of gender verification.[61] He also failed to consider the effects his decision would have on intersexed people, who are further stigmatized by having ambiguous genitals [62] “fixed by our Creator at birth,”[63] and on the children of the marriages that his decision made void.[64] Finally, he neglected to consider how, when carried to its logical conclusion, his decision will radically alter the landscape in other areas of the law, including tort law, family law, health law, employment law, civil rights in public accommodations and prison law.[65]

The Littleton decision violates Texas law,[66] violates the Texas Constitution,[67] is totally at odds with a 1990 Veteran’s Administration interpretation of the same Texas law and of similarly referenced case law[68] and violates the Constitution of the United States.[69] The decision conflicts with the American Medical Association’s Code of Medical Ethics,[70] is arguably at odds with the findings of the Human Genome Project[71] and violates twenty years of prior consistent state actions.[72] Such can be the lofty and superior nature of judicial discrimination against transgenders from the bench. With few exceptions, these laws resemble the Cider House Rules. They are hypocritical and should be changed or removed.

III. Transgender 101: The Struggle for Equality and the International Bill of Gender Rights

Despite the hypocritical rules imposed on transgenders by law and society, transgenders have written only a few law journal articles on legal issues pertaining to transgenderism.[73] The vast majority of articles on the topic have been written by non-transgenders.[74] That is not to say that the writers have been insensitive or uncaring. Just as the early authors who wrote of non-white civil rights issues were white, the early writers who wrote of women’s civil rights issues were male, and the early writers who wrote of gay, lesbian, and bisexual civil rights issues were straight, almost every author who has written about transgender civil rights issues has not been in-the-skin, living-the-life or feeling-the-pain.

This was the unfortunate situation in 1991. No lesbian or gay rights legal group was covering transgender legal issues. Though pockets of past grassroots legal activity existed, with some victories,[75] national transgender political and legal organizing and activism had not begun.[76] As a result of this absence, the International Conference on Transgender Law and Employment Policy was formed to hold law conferences for transgender lawyers and lay people. These conferences allowed transgenders to discuss and formulate future strategies, on both a grassroots and national scope, for changing the laws that adversely effect the lives of transgenders.[77]

Developed during the annual ICTLEP conferences, and building upon the early work of Sharon Stuart[78] and JoAnn Roberts,[79] two documents emerged in 1996 that are the underpinnings of the transgender political and legal rights movement. They are the Declaration of Gender Liberty[80] and the final version of the International Bill of Gender Rights (IBGR).[81] The IBGR is so important to the transgender community and their rights as asserted in this Essay that the document is printed in its entirety as Appendix B.

IV. Cider House Rules: The Imposition of Illogical but Socially Ingrained Rules on the Transgender Community

A. The Right to Define Gender Identity

1. Terminology

What does the term transgender mean? Who is included in this group? Transgenders wanted a term for themselves, self-created rather than imposed on them by the medical community or society.[82] Before the IBGR was even drafted, the need to self-define gender identity was so great that the community consciously seized upon the yet unwritten Right to Define Gender Identity and created the term “transgender.”[83] Therefore, “transgender” is a political term created to fill the need for self-definition by the transgender community. It is an umbrella term most fully defined by the San Francisco Human Rights Commission Report.[84] The report reads, in part, as follows:

[T]he term Transgender is used as an umbrella term that includes male and female cross dressers, transvestites, female and male impersonators, pre-operative and post-operative transsexuals, and transsexuals who choose not to have genital reconstruction, and all persons whose perceived gender and anatomic sex may conflict with the gender expression, such as masculine-appearing women and feminine-appearing men.[85]

All other terms—cross-dresser, transvestite, transsexual—are subsets of the umbrella term transgender.[86]

Notice in the above definition that gender-variant people are included in the definition of transgender. This inclusion is especially true of lesbian, gay and bisexual persons who are “read” or perceived to be “queer” because they present in a manner at variance to the gender that they are assumed to be. People often incorrectly draw a line between transgenders, who are incorrectly assumed to be homogeneously heterosexual,[87] and homosexual people, some of whom go “butch” or do “drag,” but are assumed not to be transgendered.[88] This line is ludicrous. There is a huge overlap of transgenders into all communities. Some have successfully argued that when the dust settles and all transgenders come out of their closets, it will be seen that sexual orientation, being straight or gay or bisexual, is a subset of gender identification.[89]

2. Part-timers, Full-timers, Trans-WEST-ites, and the Intersexed

After two-plus decades of transgender political advocacy, I have found that most people, judges [90] and legislators[91] understand transgenders better when discussed from the perspective of transgendered people being part-timers or full-timers.[92] There are basically two types of transgendered people.[93] One is the part-timer or partial gender crossover person, of which I have found there are three variations.[94] The three variations of part-timers are: (1) an occasional, partial blending of gender variance, (2) a part-time yet complete blending of gender variance or (3) a continuous, partial blending of gender variance.[95] The occasional, partial blending of gender variance subset includes people who adopt some of the clothing assigned by society to the other gender for short periods of time, such as a few stolen moments or a few hours.[96] The part-time, yet complete blending of gender variance subset includes those transgenders who adopt the entire clothing and gender presentation assigned by society to the other gender for longer periods of time, such as an evening with friends, for a stage show or for a weekend.[97] Finally, the continuous, partial blending of gender variance subset includes those who adopt some clothing assigned by society to the other gender for the majority of their lives.[98]

The part-time transgendered person is often called a cross-dresser, transvestite, effeminate male, masculine female, drag queen, as well as a host of other labels.[99] Sometimes the person may not be labeled, but be seen, for example, as a heterosexual woman who always wears jeans, a man’s shirt, work boots, no make-up and short hair. Essentially, these part-time people do not fit within the dichotomy of an all-male type of man or an all-female type of woman. With some social pain and difficulty, these people learn that they naturally fit somewhere between the two polar extremes.[100]

Even so, the part-timer’s core gender identity [101] is within the parameters of what society has determined his/her gender to be. Part-timers do not wish to totally or permanently change their full-time gender presentation. Rather, they are more comfortable living within a wider range of variance. In other words, they are gender variant.

When a child is born with what appears to be male genitalia, the doctors predict [102] that this person will grow up and be socialized to be the all-male type of man. If, instead, the child is born with what appears to labial and vaginal tissue, the doctors predict[103] that this person will grow up and be socialized to be at the all-female type of woman. For the part-timer or partial gender crossover person—the cross-dresser, transvestite, effeminate male, masculine female or drag queen—the prediction of the socially assigned full-time gender is invalid and does not fit. It is cruel for this person to be made to suffer at that gender extreme throughout every moment of every day of his/her entire life.

Another way to conceptualize this crossover behavior is to examine a commonly observed analogous crossover behavior—that of the country and western trend across the United States.[104] Many farmers and ranchers in the United States adopt the country and western dress and culture. They like the clothes, the music and the social expectations. Other farmers do not; they do not wear the clothes, do not like the music and do not like the social expectations of the country and western culture. There are in-betweens of every shade and degree. Some of those who do not like the country and western social expectations may move to the city and adopt a different type of dress, musical taste and culture: hippy, military, leather, yuppie, surfer, hollywood or jock. On the other hand, those who don’t like the country and western expectations remain on the farm or ranch, but are not “country and western.” These are some mild forms of crossover behavior that may generate a tease or slight rebuke, but such behavior is mostly considered to be a comfortable social variance.

Conversely and within the same analogy, as the country and western fashion trend has grown in the United States, many “citified” people are now adopting a country and western lifestyle. They do not live on a farm or ranch and do not own a horse or cow, yet many go to rodeos, wear country and western clothes, listen to country and western music, and go to country and western bars and dance halls. Some people, who do not need a truck for work, will even drive a pickup truck so they can feel more country and western by driving their “cowboy Cadillacs.” Some folks crossover to country and western a little; some folks do it a lot; still others make it a way of life. Whatever degree of their crossover variance, they usually do not leave the city. Because these people are not farmers or ranchers, they are also exhibiting crossover behavior. They are cross-dressing and could conceivably be called “trans-WEST-ites.”[105]

The other transgender type is the full-time gender crossover person. These people are often called transsexuals, trans-genderists, pre-ops, non-ops or post-ops.[106] The prediction of gender made at birth by the physician, nurse or midwife—whose socialized expectation of what usually results from pre-natal brain formation and social training is directly associated with at-birth genitalia—is a non-negligent, incorrect prediction and must be corrected.[107]

Full-timers are unlike the part-timers, whose occasional-partially, occasional-fully or always-partially forms of gender variance allow them to attempt to cope and function within their brain’s gender identity and the socially assigned gender roles. The full-timers must always and fully correct the socially assigned gender role—and possibly their anatomy, which initially dictated their socially assigned gender role—in order to function in accordance with their brains’ gender identity. This need to correct the gender is labeled “gender dysphoria,” which is a derisive and pejorative term with many social penalties.[108] The term should be changed, as it is society that has the problem of resisting gender correction.[109]

For full-timers, the correction process, called transition, is extremely difficult at best, as evidenced by the multiple biographies about people who have transitioned, medical texts and the media.[110] During the transition, transgendered people lose jobs,[111] are often ostracized by families of origin,[112] are subjected to religious guilt,[113] may experience divorces and loss of child or grandchild visitation,[114] and suffer cruelty from peers and neighbors.[115] In addition, legal hurdles for documentation correction add more layers of stress during this already difficult time.[116] Full-timers hire attorneys or independently follow the necessary state procedures to get legal documents in order during and after the transition.[117]

Once the transition is complete, this person is full-time in his/her gender correctional crossover. Some have genital surgery as soon as possible, but others wait for a variety of reasons.[118] On the other hand, some full-timers decide that with their completed full-time gender correctional crossovers, some or all of the various surgeries are not important to them.[119] Using the language of the prior trans-WEST-ite analogy, these people may have moved from the city to a farm or ranch, but do not want to own horses or cattle.

There are a range of possibilities for transitioning full-timers. They take physiologically altering hormones, often with effects that are irreversible absent surgical intervention.[120] Some go through electrolysis, voice therapy, tracheal shave, breast reduction surgery, scalp hair transplant, breast aug-mentation surgery, hysterectomy, orchiectomy or metaoi-dioplasty.[121] At this point, they are all “completed” transsexuals regardless of whether they have had the so-called genital alteration surgery. Only by making transsexualism “complete” at this stage, without the precondition of genital alteration surgery, can the transsexual decide if surgery is really the correct thing for him/her to pursue.[122]

It must be noted at this point that only teenaged and adult full-time transgenders face these hurdles. That is, society erects those hurdles after a person is past puberty. The hypocrisy, however, begins before puberty, usually shortly after birth. When an infant is born with uncertain genital appearance or born intersexed with both genitals appearing completely or in part, the parents and physician make a blind prediction, assign a gender and perform surgery to make the assigned gender complete.[123] The infant’s mental imprint, the brain’s gender identity, is not consulted.[124] After the infant’s surgery, first the parents, and then society, apply the selected gender extreme as the child grows. Sometimes the prediction does not match the child’s brain.[125] Such commonplace procedures are deemed culturally and medically acceptable when performed at or shortly after birth, even though there is no way of knowing how the child’s brain formed prior to performing the surgery.[126] In contrast, it is culturally difficult at best, and often socially brutal, when an adult wants to undertake the same procedures to correct mistakes in his/her genital presentation. The legal hurdles are high and the process difficult.[127] It is hypocritical and cruel to permit surgeons and parents to force surgery on an intersexed infant without consent or examination of the brain’s gender identity,[128] but to erect extreme legal and social barriers for an adult who has chosen to have the same surgery and whose lifetime of experience has provided a good indication of the brain’s gender identity.

Even more hypocritical is the fact that these same legal surgical decisions can be made for an infant if the normally formed clitoris is larger than normal or if the normally formed penis is too small [129] or damaged in circumcision.[130] These decisions, though forced upon the infant, are blessed by medicine, society and law. The law creates a high hurdle, however, for an adult trying to have the same surgery after a life of dealing with a gender extreme that did not fit with the gender identity in the transgender’s brain.[131]

3. Emerging FTM and People of Color Communities Dash the Stereotypes

The most visible and well-known stereotypical image of the transgender community until the mid 1990s was of a white MTF who was assumed to be homosexual.[132] The stereotype presumed that the transgender desired to complete the surgical alteration in order to have legal sex with other men.[133] In reality, many transgenders are heterosexual MTFs, wish to remain part-time and continue to have legal sex with females.[134] The emergence of the FTM transgender community[135] and the beginning of the people of color (POC) transgender community [136] have added missing, though very necessary, elements to the theater of political and legal activism and to the struggle to overcome stereotypes and the Cider House Rules.

In my experience, nothing destroys the stereotypes of transgenders better than when a person unexpectedly meets a long-term FTM. FTMs have the same statistical height range of females and are usually shorter than the average male;[137] however, testosterone is a potent hormone. With hormone therapy, long-term FTMs usually have definite shoulder and upper arm muscle development. They grow facial, chest and back hair, and acquire a deeper voice. FTMs acquire other characteristics typically associated with men, such as a receding hairline or baldness, large facial pores and oiliness of complexion.[138] Add breast reduction surgery, which leaves little noticeable scarring if done correctly, and FTMs can walk on any beach or in a gym without a shirt and no one might ever know.[139] Their bodies adapt to the testosterone more quickly than the MTF adapts to the loss of testosterone and introduction of estrogen.[140]

FTMs completely obliterate the stereotype of the transgender.[141] FTMs also provide a strong link to the feminist movement. Because many of them have backgrounds in lesbian and women’s rights politics, they are able to bring training, insight and political connections to the transgender community.[142] Unfortunately, just as with MTFs, FTMs are targets of hate related violence.[143]

The FTM POC carries an extra burden. Several of my FTM POC friends told me that, because they are now perceived as black males, they sense that other people fear them as night approaches and that police scrutinize them extra carefully. They complain that this is an unfair and undeserved burden.

It is still unclear what effect the emergence of the POC transgender community will have on the larger transgender community. Obviously their numbers, energy and intellect are welcome and very much needed. I believe that their lifelong experience with racial discrimination gives a depth of sincerity to their arguments against discrimination that many white transgenders do not initially possess. I anxiously await their growth as a community and the incorporation of more of them into the larger transgender political and legal struggle.[144] I also hope they will help bridge this struggle into an historical civil rights movement.[145]

4. Definition of Gender and the Hypocrisy of Littleton v. Prange

i. The Hypocrisy of Littleton v. Prange

In Littleton v. Prange,[146] the Fourth Texas Court of Appeals held that transsexuals in the jurisdiction could not legally change their sex, regardless of how precisely they followed medical and scientific rules or what types of surgeries they had.[147] This means that all transsexuals who had previously obtained court orders correcting their legal sex held meaningless orders.[148] Chief Justice Hardberger stated that the court that had earlier granted Mrs. Littleton’s petition to amend her birth certificate, so that it reflected her corrected sex, had acted in a mere ministerial fashion, conducted no fact-finding and had erred in finding an inaccuracy in Mrs. Littleton’s original birth certificate.[149]

Chief Justice Hardberger’s intentions were obvious: he sought to impose his personal beliefs on the citizens of Texas. The court reached its decision in order to deny a transsexual standing to bring a wrongful death suit as the surviving spouse.[150] Chief Justice Hardberger’s decision allowed the court to avoid bringing an insurance company backed-physician into court on an allegation of medical malpractice as the cause of the death of a transsexual’s husband. He did it all to prevent same sex marriages.[151]

Chief Justice Hardberger and others like him justify continuing to impose their Cider House Rule that gender is “immutably fixed by our Creator at birth.”[152] This justification is particularly relevant to the transgender community, especially the transsexual subset. This justification concerns genitals, chromosomes and the mind. These issues were the actual legal battleground of the Littleton decision.[153]

The legal majority in some countries routinely allow for, and legally bless, alterations from the genital presentation that was “fixed by our Creator at birth.”[154] Circumcision, whether of boys at infancy or puberty or of girls at puberty, is common in some cultures.[155] Whether I condone either practice is not important. Circumcision is the custom and religious practice in many societies;[156] however, according to Chief Justice Hardberger, this practice contradicts what was “immutably fixed by our Creator at birth.”[157]

Mistakes can occur during circumcision, as was reported in a case of a baby whose penis was so badly mutilated by the doctor that his parents were advised to raise the boy as a girl.[158] With the blessing of society, the medical and legal fields, and the baby’s parents, the infant’s genitals were completely removed and he was reared as a girl.[159] Even though he lacked a penis or scrotum and was unaware of his parent’s earlier decision, his mind told him he was a boy.[160] He fought being treated as a girl during his entire childhood.[161] When he finally learned the truth, he reverted to the gender his mind told him was correct.[162] Although he had no penis or scrotum, he began to live as a man, proclaiming that he did not need a penis to be a man.[163]

Sometimes infants are born with imperfect genitals[164] or with a mixed gender presentation.[165] Although the infant was born this way and the genitals were “immutably fixed by our Creator at birth”[166] in that manner, society, the medical and legal fields, and the parents bless the surgical transfiguration of the infant’s genitals, often with drastic consequences.[167] If the clitoris is deemed too long, it is shortened, resulting in the loss of nerve endings and a reduction of sensation.[168] If the penis is too small or is underdeveloped, it may be removed and the child raised as a girl.[169] If the genitals are mixed or ambiguous, they may be surgically altered to present male genitalia or female genitalia, sometimes resulting in lost sensation due to cut nerves.[170] Furthermore, there is no certainty that the decision-makers made the correct choice in fashioning the genitals.[171]

Finally, when a baby is born with so-called normal genitals “immutably fixed by our Creator at birth,”[172] we still have to consider that there are variations in chromosome patterns and the brain. Chief Justice Hardberger considered only the typical XX and XY chromosome patterns in his analysis in Littleton.[173] However, at least seven other chromosome patterns, including XXX, XXY, XXXY, XYY, XYYY, XYYYY and XO, are “immutably fixed by our Creator at birth.”[174] People born with these combinations are called intersexed.[175] Researchers estimate that between one and four percent of the world’s population is intersexed,[176] which, with a 1997 United States population of 266,487,000,[177] could mean that as many as two and one half million to over ten million of our citizens are intersexed. Even if the frequency of intersexuality is as low as one-tenth of one percent of the population, or one quarter million people, intersexuality is “as common as . . . cystic fibrosis and Down’s Syndrome.”[178]

What is the legal sex of the intersexed? According to the research in Professor Julie Greenberg’s article on legal sex determinations,[179] and as confirmed by Chief Justice Hardberger’s majority opinion in Littleton v Prange,[180] the only chromosome patterns that are currently of legal consequence are XX and XY.[181] The Littleton decision is particularly mean-spirited and goal driven,[182] as it was made in spite of the access the justices had to the information contained in Professor Greenberg’s article. I had asked Professor Greenberg to mail her article to Chief Justice Hardberger. Because Justice Angelini referred to the article in the concurring opinion,[183] I know the court received the article before it issued the ruling. How can a court of law completely ignore the existence of such a large number of citizens whose chromosome patterns, though not XX or XY, were “immutably fixed by our Creator at birth?” Such arrogance flies in the face of decades of scholarship on this issue.

Consider also persons with XY chromosomes who have Androgen Insensitivity Syndrome (AIS).[184] Their sex was “immutably fixed by our Creator at birth,” but neither their genitals nor their other so-called sex characteristics match their chromosomes.[185] They are XY males, but have an insensitivity to androgen and are born with what appear to be female genitals and grow up as so-called normal girls.[186] Approximately 1 out of every 20,000 genetic males has AIS.[187] In what legal closet does Hardberger’s decision hide these people?

As for the brain, some studies indicate that sexual behavior and sexual identity are rooted in “immutable” levels of neurochemicals and brain structure.[188] As Professor Greenberg suggests, “one could argue that sex, to a certain extent, is socially constructed while sexual identity is a fixed status.”[189] It is impossible to read about the decades of struggle that Christie Lee Littleton experienced because of the messages her brain sent about her immutable core identity and not be startled that Justice Hardberger disregarded those experiences.[190]

Knowing Christie Lee Littleton’s story, and having read the autobiographies and biographies cited earlier in this Essay[191] about people who struggled for decades because of these same immutable core identity issues, I find it incredible that Justice Angelini would concur with the majority in Littleton, agreeing that “biological considerations are preferable to psychological factors as tools for making the decision [the court] must make.”[192] Consider the many inconsistencies and hypocrisies of the legal majority discussed in this section. Such meanness and insensitivity do not belong in the courtroom. These are Cider House Rules that we should ignore and remove.

ii. The Adverse Effects on Transgenders, Intersexed, AISs and Their Children

Chief Justice Hardberger and Justice Angelini, in holding that Christie Lee Littleton’s chromosomes were the key to her legal sex, ignored many important issues in their rush to place another stake into the possibility of legal same-sex marriage. They judicially legislated the legal determination of sex, taking it out of the hands of the medical and scientific communities in order to pursue own their political a