During Pesach, we are celebrating liberation from slavery in the general sense, but more particularly we are celebrating one of the most important facets of human freedom – the right to self-definition, to self-identity, and to personal belief.  Pesach, as we have often been told by our rabbis, is not just about the physical liberation, but also about a psychological and emotional liberation, the freedom to be who we truly are.   The physical bonds of slavery were accompanied by psychological bonds, and both had to be vanquished for the Israelites of Exodus times to become a nation free to live and worship in the way they understood to be right.

Although it is entirely coincidental in terms of scheduling that tonight was the date that Rabbi Kleinbaum and I agreed upon for me to talk about the legal situation confronting transgender people, it turns out to be a very appropriate time for such a talk.  The metaphor that we have frequently heard at CBST of the Exodus as a parallel to aspects of lesbian and gay liberation is just as powerful in connection with the struggles of transgender people for the right to live freely with, and truly to express, their gender identity in a society providing appropriate recognition and support.

For the vast majority of us, our gender identity is consistent with the way we were classified at birth based on a doctor’s quick physical inspection of our outer appearance.  It may be difficult for us to appreciate on a deep level the significance that the gender identity issue has for those whose gender identity is not consistent in that way.  In thinking about these issues, we have to try to imagine the vast array of situations in which our gender identity matters, many of which raise legal issues.

Consider that initial moment of definition when the doctor pronounces “it’s a girl” or “it’s a boy,” leaving aside for now that very small number of cases involving intersexuals where the initial visual inspection may yield a puzzle. These days it may be based on a prenatal sonogram or quick visual inspection in the delivery room where no prenatal testing was done. That classification is then inscribed on a legal document, a birth certificate, whose significance looms over our whole lives.  If a mistake is made at that point, it can haunt us in so many ways unless it is corrected.  And for those who are transgender, that is when the initial mis-classification is made.

Scientists have now determined that at least seven different factors are relevant to determining the true gender of an individual:

(1) internal morphologic sex (that is, the internal physical structures that distinguish male and female anatomy),

(2) external morphologic sex (the genital organs),

(3) gonadal sex (testes or ovaries, whether the individual produces sperm or eggs),

(4) chromosomal sex (presence or absence of the Y chromosome in the genes),

(5) hormonal sex (predominance of androgens or estrogens in our body’s hormonal balance),

(6) phenotypic sex (secondary sex characteristics, such as facial hair, breasts, muscularity and body shape, which will not be ascertainable at birth), and

(7) psychological sexual identity (the mental and emotional component, which cannot be known to others until the individual can begin to communicate upon having discovered this for him or herself). 

There are some researchers who will add an eighth factor, of internal structures and connections in the brain that seem to vary in a way that may correlate with sexual orientation and/or gender identity, and that have suggested to some scientists that there is a genetic basis for difference in sexual orientation and/or gender identity.

When we are newly entered into the world, the doctor normally classifies us based on No. 3 alone.   Think of it, a visual inspection for the presence or absence of a penis is used to make a decision that turns on more than half a dozen other factors as well.  And this decision always results in an erroneous classification of transgender people at birth.

The basic legal problems transgender people encounter essentially flow from this initial classification error.  Marked at birth as male or female, they are treated by society in the way society constructs those two identities.  Perhaps as scientific knowledge about gender identity advances, such classification mistakes can be eliminated, but it seems unlikely at present.

So what happens as the developing child begins to apprehend for himself or herself that they have been wrongly classified?  We have heard the testimonials of transgender people, each of whom has his or her individual experience to relate, just as all of us have had our unique experience of coming to understand our own sexual identities.   Much of the turmoil of adolescence is attributed to the struggles of individuals to grow into a gender identity, regardless of the special issues we are discussing tonight.  Imagine how much more challenging to realize one’s gender identity is out of synch with what one’s body appears to indicate and what society thinks based on its external view.

Here is one example, taken from the court case of Christie Littleton, a 1999 Texas court of appeals decision [9 S.W.3d 223] written by Chief Justice Phil Hardberger, who out of respect to Christie used feminine pronouns, but based on his view of the law held that Christie was legally male:

“Christie is a transsexual.  She was born in San Antonio in 1952, a physically healthy male, and named after her father, Lee Cavazos.

“At birth, Christie had the normal male genitalia, penis, scrotum and testicles.  Problems with her sexual identity developed early though.  Christie testified that she considered herself female from the time she was three or four years old, the contrary physical evidence notwithstanding.  Her distressed parents took her to a physician, who prescribed male hormones.  These were taken, but were ineffective.  Christie sought successfully to be excused from sports and physical education because of her embarrassment over changing clothes in front of the other boys. 

“By the time she was 17 years old, Christie was searching for a physician who would perform sex reassignment surgery.  At 23, she enrolled in a program at the University of Texas Health Science Center that would lead to a sex reassignment operation.  For four years Christie underwent psychological and psychiatric treatment by a number of physicians, some of whom testified in this case.

“On August 31, 1977, Christie’s name was legally changed to Christie Lee Cavazos.  Under doctor’s orders, Christie also began receiving various treatments and female hormones.  Between November of 1979 and February of 1980, Christie underwent three surgical procedures, which culminated in a complete sex reassignment.  Christie’s penis, scrotum and testicles were surgically removed, and a vagina and labia were constructed.  Christie additionally underwent breast construction surgery.

“Christie married a man named Jonathan Mark Littleton in Kentucky in 1989, and she lived with him until his death in 1996." 

According to the court record, Christie had told Jonathan about her gender reassignment and this did not matter to him.  He loved her.  Jonathan died after seven years of marriage during a surgical procedure in a Texas hospital.  Christie, as the surviving spouse, filed a medical malpractice wrongful death lawsuit.  While the case was pending, she petitioned another Texas court to get a new birth certificate, correcting the gender designation and bearing her current legal name, which was granted by the judge upon receiving a doctor’s sworn statement that Christie was female.  

When the surgeon’s lawyer discovered that Christie had been born physically male, the defendant filed a motion to have the case thrown out on the ground that Christie’s marriage was void, as if it had not happened, and that she therefore did not have a right to sue for her economic loss as a result of Jonathan’s death because she was not really his widow.

The right to sue for economic loss from the death of an individual is governed in all states by statutes, which provide that only certain specified persons can bring such a lawsuit, among them a surviving close relative, such as a parent, spouse or child, who is able to show actual economic loss.   In order to sue as a spouse, one must have been legally married to the person who died.

The legal issue in Christie’s case was whether she was the widow of Jonathan and thus entitled to bring the lawsuit.  The trial court said no, and the appellate court agreed.  Although the court of appeals found that Christie was transsexual, it asserted that “biologically, a post-operative female transsexual is still a male. . .”  And because same-sex marriages are not recognized in Texas, Christie’s Kentucky wedding was not recognized as valid by the court.  The parting statement by Justice Hardberger: “There are some things we cannot will into being.  They just are.” 

Christie’s attempts to appeal this case were all in vain.  The U.S. Supreme Court refused to hear her appeal.

The law refused to recognize the reality of her gender identity, refused to accord ultimate legal significance to all the steps she had taken to bring her body into accord with her gender identity, and the law insisted that the classification made by the doctor at her birth was written in stone.  Even though the state was willing to approve Christie taking a new name consistent with her gender identity, and even though a trial judge was willing to order a change to her birth record, identifying her as female, when it came to the crunch the courts insisted that she could not have been legally married to a man.

Contrast this with the law in the European Union, where the Court of Human Rights has ruled (in  Goodwin v. United Kingdom, Application No. 28957/95 [2002]) that transgender people are entitled to legal recognition of their gender identity as a matter of respect for private life under the European Charter of Human Rights and Freedoms, and that such recognition must include marital rights.  Although the European Court of Human Rights has not yet ruled that same-sex marriage is a right under the European Charter, it has been willing to rule that a person’s gender identity, not their identified sex at birth, should determines whom they can marry.  No American state has yet specifically taken this progressive step, although in Massachusetts, where same-sex couples can marry now, transgender persons should encounter no obstacle to marrying.  The problem is whether their marriage will be recognized elsewhere.

So, this gives you just a glimpse of the legal complications.  After our service tonight, we will have an opportunity to discuss this topic further, and I will mention some of the other contexts in which transgender persons encounter legal difficulties.  

But before ending, I want to suggest that the approach most American courts have taken to this question is inconsistent with our constitutional guarantee of individual liberty. 

In a 1992 decision involving abortion rights in which the Supreme Court ruled that a woman’s right to choice is an aspect of liberty protected by the 14th Amendment, the Court stated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.  Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” [Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)]

Eleven years later, Justice Anthony M. Kennedy quoted these words as part of the Court’s justification in striking down the Texas sodomy law in Lawrence v. Texas [539 U.S. 558].  I hope that someday the same words will be invoked by the Supreme Court when it finally, for the first time, addresses the right of every person to have their gender identity acknowledged in law.