Gender/Sexuality/Law: Courts and Intersex
Harper Jean Tobin
About two years ago, an unassuming Australian named Alex MacFarlane walked into a local government office and made history. MacFarlane appears to be the world’s first holder of a passport reading: “SEX: X.” MacFarlane was born intersex, and explained to passport officials that carrrying a male or female identification would seem fraudulent.
Intersex is a catch-all term for a wide variety of genetic
conditions in which an individual’s body has mixed sex characteristics – they
are neither 100% male nor 100% female. For example, someone with "complete
androgen insensitivity" may appear in every way female from birth, but
have a shallow vagina, XY chromosomes and testes. Others intersex
people have truly ambiguous genitalia. This is cause for alarm among some
pediatricians, but that's a story for another day.
No
one can seem to agree on how common intersexuality is,
in part because they can’t agree on what counts as intersex.
An article in the American Journal of Human Biology a few years ago
estimated that as many as one in 100 people are born with some internal
or external variance from typical male or female anatomy, while one or two in 1,000
are noticeably atypical at birth.
Intersex people have always existed. Historians like Alice Dreger have pointed to Native American traditions, Medieval
European laws, and ancient rabbinical texts acknowledging this human variety. Our
contemporary society is not so accepting.
A
note on pronouns: owing in part to our society's refusal to recognize more than
two sexes, most intersex people do live socially as either men or women. I
have employed pronouns on that basis, in accord with the principle that gender
should be consensual.
In
1987, Wilma Wood became probably the first person to her employer for
discrimination on the grounds of intersexuality. There
appears to have been no dispute that that’s exactly what happened: her boss
somehow discovered that she had been intersex and had
“corrective” surgery as a child to make her a “normal female.” (More on this practice in another column.) She was passed
over for a promotion, and then fired. A federal district court found that
discrimination on the basis of intersexuality was not
sex discrimination within the Pennsylvania Human Rights Act or Title VII. The
court reached this conclusion because it viewed Wood’s claim not as one of
discrimination based on being intersex, but rather as
discrimination based on her surgery. Noting the then-unanimous view that
discrimination against transsexuals was not sex discrimination (a point now the
subject of a conflict among federal circuits), it granted summary judgment for
Wood’s employer. The court never considered that if discrimination on the basis
of being female and on the basis of being male were illegal, discrimination on
the basis of being born neither male nor female was probably illegal too.
In
2001 Jackie Cozart sued officials in Kentucky over a
strip search in the Henderson County Jail. In an unpublished opinion, Sixth
Circuit noted that the sole reason for the search was “because it was reported
that Cozart was a hermaphrodite,” but found nothing
wrong with this, holding: “The district court properly concluded that a
reasonable officer, with knowledge of all the facts, would have determined that
‘reasonable suspicion’ existed to believe that Cozart
possessed something which might endanger the security of the institution.” The
court gave no explanation of why Cozart’s anatomy
might be so dangerous.
Curiously,
the most recent recorded case involving intersex
civil rights also involved incarceration. Miki Ann DiMarco
was abandonedby her parents, perhaps because of her intersexuality, and raised in a
series of institutions. Over the years she was forced to change her name and
identity to evade the hostility of others who discovered unusual
characteristics. Eventually she wound up in trouble for check fraud, and in 2000
her probation was revoked "due to lack of verifiable identification and
positive drug tests." When officials in the Wyoming Women's Center
discovered she was intersex, she was isolated in what
a judge called a "dungeon-like" maximum security wing for 438 days.
In
the ensuing civil rights suit, Wyoming's federal district court found that DiMarco's Due Process rights were violated, but awarded
only nominal damages plus attorney's fees and court costs. A claim of cruel and
unusual punishment was also rejected, owing to the very high bar the Supreme
Court has set for such claims. Finally, the court rejected DiMarco's
claim of an Equal Protection violation. As in the Wood case, the judge
did not see her claim of discriminatory treatment on the basis of "ambiguous
gender" as being a gender-bias claim. Nor did he find her treatment otherwise
subject to heightened scrutiny, since she did not show she was a member of a
group historically singeld out for disparate
treatment. One may well ask how an "ambiguous gender" claim is not a
gender claim, or how heightened scrutiny has been applied to classifications
burdening men when they have not been historically oppressed on the basis of
gender.
Why
this peculiarly obstinant treatment of intersex plaintiffs? In a sexual harrassment
suit several years back, an Illinois district court mentioned in a footnote
that it was "aware of what some term a third, hybrid version of gender, hermaphrodites.Yet, the court will not address it since it
is yet to be recognized as a gender by federal courts." Law is a system of
abstracts, of words and concepts meant to represent and order concrete
realities. When you fall outside that system of concepts, it seems, the law
cannot help you.