By Ezra Young
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, that is what some journalists
Just last week, two courtsâ€”a trial court in California
and an appellate court in Colorado
â€”issued decisions affirming transsexual menâ€™s right to enter into and dissolve their opposite sex marriages. The tantalizing hook for both cases is that neither Mr. Beatie nor Mr. Angel had undergone genital reassignment surgery. (In fact, Mr. Beatie and Mr. Angel are quite (in)famous for foregoing surgery.)
While I am relieved that the courts recognized both menâ€™s male identities irrespective of genital status, neither case is a clear â€świnâ€ť 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 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.
Letâ€™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 reasonâ€”basic principles of legal formalism, comity, and full faith and credit mandate it.
So, what should these courts have done differently if 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 toâ€”as Justices Ginsburg
, and others
are accustomed to in matters of racial equityâ€”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 could the courts have done? Well, for starters, they could have pushed back on the fundamentally unfair positions the wives took. Neither court foreclosed the wivesâ€™ 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 shutdown legal challenges premised on the idea that trans people arenâ€™t really who we hold ourselves out to be. Moreover, it would have made it clear that non-trans peoplesâ€™ 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 courtâ€™s spurious and offensive logic that a transsexualâ€™s amended birth certificate prima facie requires exacting scrutiny of the ilk normally reserved for cases involving identity theft. Rather than rationalizing that the trial court was mistaken
in its belief that it was its duty to deny Beatieâ€™s male status on the unsubstantiated hunch
that had his home state known
he would carry several pregnancies to term they might have denied it, they could have spoken to the problem with this line of inquiry. 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
, 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 court done so.
Despite the fanfare, these two decisions reveal just how much work we still have ahead. As we move forward, we must not forget thatâ€”despite incremental winsâ€”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 and Angelâ€™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
Ezra Young is a post doctoral scholar at Columbia Law School in New York City.