Deconstructing Sex Categories: A Comparison of the Transgendered and Mutiracial Experience
Julie A. Greenberg*

INTRODUCTION

Millions of people are transgendered and cannot easily be categorized as either male or female. Similarly, millions of people are multiracial and cannot be classified as being of one distinct race. Racial classification systems have existed for centuries and have been the subject of extensive discussion and criticism for decades. Sex and gender classification systems, on the other hand, just started to become the subject of litigation in the last half of the twentieth century and it is only during the last decade that sex classification systems have become the topic of extensive scholarly comment.

The purpose of this talk is to compare the treatment of transgendered people under our sex classification system to the treatment of multiracials under our racial classification system. Sex and racial classifications are clearly not completely analogous because of the strong biological basis to sex determination, the ability of sexual minorities to hide their sexual identity and, most importantly, our history of slavery which so profoundly shaped race relations in this country. Despite these differences, because racial and sexual minorities have been subjected to similar discriminatory treatment and have been historically categorized in similar ways, gender scholars and activists can learn from the experience of racial minorities and from race scholars who have analyzed our current racial classification system.

During the past decade, the legal ramifications of being intersexed or transsexual1 have been examined by courts, legislatures and activists. One of the issues that scholars and activists who work in this area struggle with is whether to accept the traditional binary classification system or instead to push for a deconstruction of binary sex and gender categories. The former approach would require courts and legislatures to choose a sex feature (e.g. chromosomes, genitalia, phenotype or gender self-identity) that would determine a person's legal sex. Under this system, we could focus on the feature (gender self-identity) that we believe would best protect the rights of most transgendered individuals. The second approach, encouraging a deconstruction of sex categories would more easily accommodate intersexuals and transsexuals, but would be more difficult to convince courts and legislatures to adopt. Under this approach, we would emphasize that sex and gender are not binary and, to some extent, have been socially constructed. This approach would require a deconstruction of legal sex and gender classification systems that seek to classify individuals as either male or female based upon sometimes mutable and arbitrary2 characteristics.

These two theoretical alternatives reflect a debate that is occurring within some gay and lesbian activist communities. Some gay/lesbian groups have rejected the inclusion of transsexuals in proposed legislation that would protect gays and lesbians from discrimination. These groups fear that inclusion of transgendered individuals may result in rejection of proposed beneficial legislation because society is not ready to accept laws that benefit individuals who cross sex/gender boundaries. Therefore, some gay/lesbian activists support the maintenance of a binary sex/gender classification system that protects individuals from sexual orientation discrimination, but not from discrimination based upon one's status as a transsexual or intersexual.

As I have read the literature on intersexuals and transsexuals, I have been drawn to parallels that exist between the treatment of multiracial and transgendered people. Both groups have been discriminated against in many similar ways. For example, at some point in history, both have been:

• denied the right to marry the person of their choice;
• denied the right to use their self-identity as their legal identity;
• denied the right to be free from workplace discrimination;
• disproportionately subjected to hate crimes; and
• discriminated against by other disenfranchised groups who one would generally assume to be supportive. (Multiracials have at times been rejected by Blacks; transgendered people have at times been rejected by women's groups and some gay/lesbian groups.)

An understanding of the issues and problems that have arisen under racial classification systems may assist gender scholars and activists as they seek to modify current sex classification systems. To determine whether sex and gender activists and scholars should urge the deconstruction of sex/gender categories in the same way that race categories have been deconstructed, I will first briefly summarize the development of our current system of racial classification for multiracials. Next, I will describe our current sex classification system and the legal problems that arise under it. Finally, I will use some of the issues being debated among race scholars about the wisdom of adopting a "multiracial" category to help shed light on the effect deconstructing sex categories to include transgendered people may have on sexual minorities.

RACIAL CLASSIFICATION SYSTEMS

During the Nineteenth Century, race was assumed to be biologically determined and generally thought of as binary. An analysis of census information, court decisions, and legislation during this time indicates that a number of factors were used to establish a multiracial person's race; physical attributes, however, generally dominated the determination. For example, a person's race on the census was established by the census taker's visual inspection. Court decisions during this time that were brought to determine whether a person was free or a slave relied on a number of factors, including ancestral documentation, scientific "expert" testimony, reputation evidence and conduct. Most courts, however, placed the greatest emphasis on physical attributes. Post civil-war legislation on this subject varied. Ancestry or "blood line" typically determined race and many states specified a particular ancestral fraction that would fix an individual's race, until 1915 when the "one-drop"3 rule became the universal law.

Once the "one-drop" rule became the generally accepted standard, litigation to establish the race of multiracials dramatically declined. Most of the racial determination cases brought during the early part of the Twentieth Century were brought by immigrants trying to establish their race as "White" so that they would be entitled to naturalization. Although these cases did not specifically deal with those who were of mixed race, the cases help illustrate how the concept of race was developing. Most of these cases typically relied on common knowledge and scientific evidence to determine who was "White" until the U.S. Supreme Court in 1923 rejected scientific evidence that would have classified too many people as Caucasian and therefore entitled to immigrate. Instead, the Court adopted a "common knowledge" standard to establish race. This common knowledge standard acknowledged that race is largely a socio-political construct.

Biologists and anthropologists now acknowledge that no significant genetic differences exist among the traditional delineated racial groups and most legal institutions accept race as a socio-political construct. Although some have argued that race indicators should therefore be eliminated from official documents, our legal system still categorizes individuals by race. An individual's race, however, may vary depending upon the governmental entity that is establishing it. For example, the race indicated on a newborn's birth certificate is based upon a matrilineal system (if the race of the mother is indicated, babies of White mothers are White and babies of Black mothers are Black), while race on the death certificate is established either by a doctor or funeral director and many not conform to the race indicated on the birth certificate. The Census allows people to self-identify their race. Although the Census does not include a multiracial category, individuals can check more than one box or can check a box indicating "Other." Very few racial determination cases have been brought during the later part of the Twentieth Century, but in the few that have been brought, courts have looked to some of the same evidence that was used in the Nineteenth Century racial establishment cases. They have considered visual observation of physical characteristics, documentary evidence such as birth certificates, self-identity, and community reputation evidence. Therefore, although race is now considered a socio-political construct, it is still legally relevant and inconsistently defined.

SEX CLASSIFICATION SYSTEMS

Although sexual classification systems do not affect as many people as racial classification systems, millions of people do not fit into clear sex categories. The exact incidence of intersexuality and transsexuality is not known; some experts place the number as high as four percent of the population, while others would fix it as low as one-half of one percent. Probably the most well accepted number would be approximately one percent of the population, which means that in the U.S. alone, over 2.5 million people may be directly affected by sex classification. In addition, another 2.5 million people who seek to marry a transgendered person may be indirectly affected.

The manner in which a person's sex is defined will have a number of significant legal consequences. The issues that are of greatest importance and are currently being litigated include: the right to marry; the right to have an individual's identity documents list the sex that matches the person's gender self-identity; the ability to state a cause of action for employment discrimination; and the right to sex/gender autonomy.4 Although some state legislatures have established standards for sex determination for transsexuals, a uniform system does not exist and a person's sex may vary by state and by the issue being litigated.

Marriage: Two recent cases illustrate the importance of sex classification in establishing the legality of a marriage. In both cases, a post-operative male-to-female transsexual married a man and both parties to the marriage believed that they had entered into a valid heterosexual marriage. In both cases, the husband died and after his death a third person contested the validity of the marriage. In 1999, in Littleton v. Prange, the Texas Court of Appeals held that the husband's doctor would not be liable to the surviving wife for medical malpractice under a wrongful death statute because the transsexual wife was not legally a woman. Therefore, the marriage was an invalid same-sex union. In the other case, a Kansas trial court relied on the Texas court ruling and held that the wife could not inherit her husband's intestate estate because she could not legally be married to a man. Both cases rejected gender self-identity as a reliable indicator of legal sex and instead focused on the fact that the wive's chromosomes were XY and that they had been identified as males at birth. The Kansas case is currently being heard by the Kansas Court of Appeals.

The Texas case may eventually result in a significant change in how gay and lesbian marriages are perceived. Because of the Littleton ruling in Texas, at least two self-identified lesbian couples (in which one of the women is a post-operative transsexual) have received official marriage licenses from Texas government officials. Because Texas does not recognize a post-operative transsexual's sex as her legal sex, Texas law treats a transsexual woman as if she legally is a man. Therefore, her self-proclaimed lesbian union is considered a legal heterosexual marriage between a man and a woman. As a result, Texas has become the first state to officially recognize what most of society would identify as a same-sex marriage.

Identity Documents: Transgendered individuals may have more than one "official" sex. The federal government allows transsexuals to amend their passports to indicate their self-identified sex. Some state legislatures have adopted a similar rule for birth certificates. In other states, the sex established at birth by the birth attendant remains the person's legal sex regardless of any later physical changes. In some states, a person's birth certificate may indicate a sex different from the sex indicated on the driver's license because frequently Departments of Motor Vehicles are more liberal in allowing amendments to the sex marker on driver's licenses. Identity documents are significant because the sex indicated on the identity document typically is the sex that will establish a person's ability to marry in a particular sex role.

Right to State a Claim for Discrimination: Until 1999, the case law was fairly consistent that transgendered people could not state a cause of action for employment discrimination if the discrimination was based upon their transgendered status. Federal courts consistently held that Title VII discrimination "because of sex" includes discrimination against women because they are women and men because they are men, but does not include discrimination against transsexuals "because of their transsexuality." Some cases decided within the last year, however, indicate that some federal courts may consider expanding sex discrimination under Title VII to include discrimination based upon gender nonconformity.

Right to Autonomy: Medical institutions also play a significant role in establishing the sex of thousands of intersexed infants who are born with mixed sex markers. The medical community bases the sex assignment of intersexed infants on long-held assumptions that are now being questioned by researchers in a variety of disciplines. These questionable assumptions include:

• Gender is bendable; gender identity is based upon a nurture and not nature theory of development. Based upon this belief, doctors have surgically and hormonally altered an infant's anatomical sex markers to the sex they believe is most appropriate based upon anatomical features rather than likely gender self-identity.
• The essence of manhood is a penis with the ability to penetrate a vagina and to stand while urinating. Therefore, if an XY infant is born with a penis that is less than 2.5 centimeters when fully stretched, the XY infant is surgically and hormonally turned into a girl, despite the fact that this treatment will deprive the person of the ability to reproduce as an adult male and the fact that the child's eventual gender identity may well be male.
• The essence of womanhood is the presence of a vagina with the capacity to be penetrated, a clitoris that is not too large, and the ability to reproduce. Therefore, if an XX infant is born with a phallus that looks more like a penis than a clitoris, doctors will reduce the size of the phallus and recommend that the child be raised as a girl, despite the fact that the surgical treatment may diminish or eliminate the person's chances to achieve sexual orgasm.
• Individuals who grow up with atypical looking genitalia or any ambiguity about their sex/gender will suffer severe psychological trauma. Therefore, doctors surgically sculpt "acceptable looking" genitalia and sometimes lie to the parents and recommend that the parents lie to their children about their children's intersexed conditions.

RECONCEPTUALIZING RACE AND SEX

As indicated above, race and sex were originally considered to be binary and biologically determinable. Many race scholars have worked to educate legal institutions and society about the nonbinary, nonbiological nature of race in the hope that a deconstruction of racial categories will lead to a diminishing of race-based discrimination. Race scholars and activists are debating a number of interesting issues that have resulted from deconstructing racial categories. An understanding of some of the issues being debated within the scholarly race community may help illuminate some of the problems that may arise as sex categories begin to be analyzed.

Some of the issues being debated that affect racial minorities that may also affect sexual minorities include:

1. Does rejection of race as biologically based, and acceptance of race as socially constructed, help or hurt racial minorities?

Most people have criticized our historical racial system which was based upon the "one-drop" rule because of its origins in a racist society. Most have assumed that because racial categories were designed by racists whose goal was to discriminate against Blacks, the rules resulted only in harm to Blacks. Therefore, they argue that historical biological definitions of race must be rejected based upon their racist origins. Most people have assumed that the movement to have race accepted as a socio-political construct will lead to a reduction in race-based discrimination and will help minorities achieve true equality.

Other race scholars have argued that the binary system and the "one-drop" rule have helped to form a strong Black identity that in the long run helped Blacks to form a common bond to combat racism. As we have seen during the 1990s, the fact that race is accepted as a social construct has been used by conservatives to support the argument that society should dismantle programs that benefit groups that have been historically subjected to discrimination. Some conservatives argue that because race is socially constructed, society would benefit most if it becomes "color-blind" and eliminates all racial categorization, regardless of its purpose. Therefore, acceptance of race as a socio-political construct may result in less protection provided to groups who have been historically disadvantaged.

Sex and race are clearly not analogous in relationship to this question. First, the sexual classification system, although created in part by legal and medical institutions based upon stereotypes about men and women, has a strong biological basis. Second, the sexual classification system has not created a common bond among sexual minorities. It is most likely, therefore, that acceptance of sex as in-part socially constructed should lead to greater acceptance of all sexual minorities. It is possible, however, that the socially constructed aspect of sex could be used to justify the dismantling of programs designed to protect against gender-based discrimination.

2. Does the movement in favor of a multiracial category help or hurt racial minorities?

Those in favor of a multiracial category argue that such a category would acknowledge the increasing number of children who are born into mixed race families and recognize that current racial categories do not account for the identity and experiences of multiracial people. Some also argue that increasing the number of racial categories to include multiracials would weaken racial hierarchy.

Other scholars assert that acceptance of a multiracial category creates definitional as well as practical problems. First, the acceptance of a multiracial category implies an acceptance that race is based upon "blood lines," an approach that has been completely discredited. Furthermore, the category itself would be impossible to define. If it includes anyone of mixed heritage, then the majority of people in the United States would be defined as multiracial and the category would become meaningless. More importantly, some argue that a multiracial category could be used as a buffer category to further distinguish Whites from Blacks and that acceptance of a multiracial category will do nothing to reject "White" as the superior category. Furthermore, it could act to break down long-standing alliances between people of color by splitting them into smaller meaningless subjective groups.

Sex/gender scholars and activists probably do not need to be concerned that acceptance of an intersexual category would be anything but beneficial for all sexual minorities. Limiting sex categories to male and female based solely on anatomy and ignoring gender identity does not account for the identity and experiences of transsexuals and intersexuals. Furthermore, educating society about the nonbinary nature of sex will likely lead to a greater protection for gays and lesbians. Some gay/lesbian activist groups are concerned, however, that including transsexuals in the gay/lesbian agenda will increase the probability that proposed legislation designed to protect gays and lesbians from discrimination will be rejected. They argue that society may be willing to protect gays and lesbians, but society is not yet willing to accept and protect transsexuals and intersexuals because they present too great a challenge to our well-established understanding of the binary nature of sex. Therefore, some gay/lesbian activist groups would not support the deconstruction of sex/gender categories and the addition of an intersexed category.

3. Should race be determined solely by self-identity or should race be objectively defined?

Some believe that people should be able to identify their own race based upon our ideology of individualism. Also, self-identification would probably be a better system than a state classification system that is based upon insignificant criteria.5 Others argue that allowing self-identity to control one's legal race will result in a push by those of mixed race to claim the status that will most privilege them. Furthermore, a self-identity approach fails to acknowledge that society plays a critical role in establishing race.

Similar concerns about utilizing self identity to define sex have been raised by courts. Courts that have rejected a self-identity definition of sex fear that such a system may be used by transsexuals to enter into a same-sex marriage or to commit fraud.

4. Should race be defined according to one standard for all purposes?

Some race scholars argue that race derives its meaning from the context in which it is being examined and the concept of race is therefore constantly shifting. These scholars believe that we cannot have one definition of race that can be used in all legal contexts. The law must distinguish between the use of race to stereotype minorities and promote racism as opposed to the use of race to combat discriminatory practices and build racial solidarity. These scholars argue that race can be defined by biological, social, and historical factors and that depending upon the context in which the legal issue is being raised, sometimes race-conscious and sometimes race-neutral remedies are appropriate.

Similarly, sex/gender scholars need to understand that deconstructing sex categories and focusing on the nonbinary, socially constructed aspects of sex and gender may not automatically lead to greater protection for sexual minorities in all circumstances. For example, although gender activists may want same-sex marriages legalized, given the strong opposition to gay and lesbian marriages that is prevalent throughout much of society and most legal institutions, it may be necessary for the near future to accept traditional binary categories in marriage litigation. To instead emphasize the non-binary nature of sex may lead to transgendered people being barred from marrying anyone at all.6 Supporting a binary system in which is sex is based on gender self-identity is probably the most effective way to promote transgendered marital rights. For purposes of marriage, it may be important to emphasize that gender self-identity appears to have a biological basis and is just as valid an indicator of "sex" as are chromosomes.7 For anti-discrimination and hate crimes legislation, however, under our current binary sex/gender model, discrimination against gays, lesbians and transgendered people is generally considered legal. Unless these groups are specifically listed in the statute, courts typically fail to protect them from discrimination based upon their transgendered status or their sexual orientation. Therefore, to protect sexual minorities from discrimination, the non-binary socially constructed aspects of sex must be emphasized so that the definition of "sex" in sex discrimination law is expanded to include transsexuals and intersexuals as well.

CONCLUSION

As gender scholars and activists seek to shape the development of our sex classification system, we must be mindful of the problems that can arise from deconstructing sex categories and adopting a single unified standard for determining sex. Race theorists and activists have learned that deconstructing racial classification systems and moving to an acceptance of race as a socio-political construct can be used to promote racial harmony as well as dismantle programs that are designed to combat racial discrimination. Similarly, as gender scholars and activists seek to break down sex and gender classification stereotypes and assumptions, they need to be aware of the ways in which deconstructing sex categories can be used to promote discrimination against as well as a greater acceptance of sexual minorities. Just as the law may need to utilize historical, cultural and biological definitions of race depending on the legal context, gender scholars may need to emphasize the biological, social and nonbinary nature of sex and gender depending upon the context in which sex is being debated.

*Professor of Law, Thomas Jefferson School of Law. This paper is the text of the talk I presented at the AALS 2001 Annual Meeting. The gender classification discussion builds upon ideas discussed in two law review articles: Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision of Law and Biology, 41 Arizona Law Review 265 (1999) and Julie A. Greenberg, When is a Man a Man, and When is a Woman a Woman?, 52 Florida Law Review 745 (2000). The racial classification discussion is based upon the works of many excellent race scholars and also expands upon ideas I discuss in a forthcoming book chapter, Julie A. Greenberg, "Definitional Dilemmas: Male or Female? Black or White? The Law's Failure to Recognize Intersexuals and Multiracials," in From Alienation To Reinvention - Gender Nonconformity and Its Connections to Race, Ethnicity and Sexuality (ed. Toni Lester, Wisconsin University Press 2001 forthcoming). For copies of any of these articles or for citations to the primary authority or the works of other scholars upon which this talk is based, please e-mail me at julieg@tjsl.edu. The ideas in this talk will be expanded in a law review article that I am in the process of researching. I welcome comments.