The Right to Change Gender in the Constitution

[Kara]

I've been wanting to make this blog entry for a while and got around to it today. Hopefully this will be empowering for you guys. 

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The Framers (or Founders, if you prefer) would never have imagined that over 200 years after they wrote the Constitution, people would be changing their gender from male to female or from female to male. As such, they did not include any clause protecting the rights of anyone who was transgendered. However, after the civil war, a curious amendement to the Constitution was added on. It was the 14th amendment. The amendment is meant to tie up a few loose ends left over after the civil war, but the first provision of the article is especially striking:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"Nor shall any State deprive any person of life, liberty or property..."

What exactly does this mean for the transgendered community? In the first place, if suicide becomes a strong imperative given the lack of a transition or a law banning ->-bleeped-<- in general, then the argument can be made the state has deprived a person of their life through indirect means. More importantly though, the word liberty is today being used to justify gay relationships. Even though we may be sure that the Framers would not have approved of such behavior, the Constitution protects gay relationships and gay marriage because Article 14 here says no State (ie, Texas) can deprive a person of their liberty- in this case, the liberty to choose who they want to be with. By extension, this clause in the Constitution also means that no State has the right to pass a law that prohibits a change of gender.

I'm noting this down now because I feel that the situation globally is moving towards transgendered individuals getting into the public eye more and more. It may even come to pass that they may hold public office. It is not inconcievable to think that someone who has enough money to pay for gender reassignment surgery will also have enough money to run for a local office and garner support from one party or the other as a shining example of how tolerant they've all become. The mood of America that I've experienced is that everyone would prefer that it all be left in the closet and ignored and hopefully one day the "problem" (as ultra right wing conservatives would call it) will go away- or at least become less significant. The continual increase of technology makes that seem all the less likely and so I'm writing this not only for my own purposes- as I have a personality that tends to attract notice- but also for other people who may encounter a run-in with the law. At least, those of you who live in America. I'm not sure what the laws are in other countries.

For those of you who do, however, your rights are guaranteed. You are not any less of an American citizen because you change gender. You do not have any less privileges than any other citizen who has not gone through a transition. What it comes down to is- as long as you remain a human being, your rights will not change as long as the Constitution stays what it is.

[Blaire]

totaly agree

[Michelle.]

 "the Constitution protects gay relationships and gay marriage because Article 14 here says no State (ie, Texas) can deprive a person of their liberty- in this case, the liberty to choose who they want to be with."

An "originalist," another word for conservative, would point out that the original intent of the 14th Amd was to extend the full rights of citizenship to freed slaves.

Gay marriage is somewhat dubious, though could be argued that it as well apllies.

As far as changing sex to match gender. No state I know of has outlawed TS related procedures. Here though you could use the "greater protection clause" to fight for ID law related issues. Example, the State Department will change the gender marker on my passport, the Social Security Admin will chnage the gender marker on my file. Why than do some states have very different birth certificate admend laws?

[Mister]

I would find enjoyment in living my life without bills.  Can I sue Comcast for depriving me of my life, liberty, and pursit of happiness??  ordering 50/mbps cable internet was absolutely an act of pursuing my happiness.

[tekla]

Really bad reading of the Constitution, to be sure.

[FairyGirl]

As far as changing sex to match gender. No state I know of has outlawed TS related procedures. Here though you could use the "greater protection clause" to fight for ID law related issues. Example, the State Department will change the gender marker on my passport, the Social Security Admin will chnage the gender marker on my file. Why than do some states have very different birth certificate admend laws?

I'm not sure if they could get away with outlawing being transgendered, but they might try. It could possibly be a good argument for getting states to comply with changing BC gender markers. They won't change your birth certificate marker in Tennessee, nor in Texas much anymore I'm told. 

Maybe we could take it to the Supreme Court and argue 14th amendment rights,  but why wasn't that defense offered by Christie Littleton in Texas when the court there declared her legally male by chromosome test and therefore not the lawful spouse of her husband of 7 years nor eligible to sue the doctors that caused his death for wrongful death malpractice? Since that case in 1999 it is very difficult to get your BC gender marker changed in TX, but I'm pretty sure a valid US Passport trumps a birth certificate in any case.

[Kara]

I would find enjoyment in living my life without bills.  Can I sue Comcast for depriving me of my life, liberty, and pursit of happiness??  ordering 50/mbps cable internet was absolutely an act of pursuing my happiness.

I believe the argument to that would be that you can enjoy your freedoms as long as they don't cause harm to someone else. There are also laws that say if you don't pay your bills, the organization you owe money to can drag you into court and demand repayment.

When it comes to ->-bleeped-<-, the same rights that seem to apply to homosexual individuals must also apply to those who decide to change gender. This may be an issue worth noting as the public at large still seems to associate ->-bleeped-<- with homosexuality and may not realize the distinction.

Here is the Supreme Court decision that used the fourteenth amendment as a way of conferring or establish rights for homosexuals. The same argument they used in this case must also apply to transgendered individuals as well. Does the state have the right to tell them how they may or may not pursue their own happiness in a way that is not harmful to others? Does the state have the right to deprive them of liberty by saying, "No sir, you can't become a woman"? The answer would appear to be no.

[tekla]

I don't see any state prohibiting such operations.  Nor do I see any legislation to prevent it in the future.  If you are arguing that you have a 'right' to have the government pay for it, then the train is off the tracks.  Everyday people die because they don't have adequate medical care, or because the private coverage they have will not cover what's killing them.  It's never been argued that they have a 'right' to have that provided.

[Mister]

what rights that apply to 'homosexual individuals' are you speaking of?  And why should they also apply for transsexuals?

[Kara]

what rights that apply to 'homosexual individuals' are you speaking of?  And why should they also apply for transsexuals?

The Due Process clause has been interpreted as meaning that homosexuals have the right to engage in consensual sexual behavior- an activity that was viewed as immoral and consequently was seen to be illegal. Of particular note is the opinion from Lawrence v. Texas (see my previous post) in which the majority (who voted to overturn laws prohibiting homosexual behavior) said the following:

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code."

Yes, there is no state prohibition on actually changing gender and no people are not entitled by government to have their SRS paid by default. A right to change gender means a right to pursue a transition in whatever way you see fit, whether you want to get FFS or not, whether you don't want any surgeries, or whether you want do everything. It would be very difficult to mandate state-funded transitioning as some people want to go to different levels, not to mention that a lot of taxpayers would be very uncomfortable with the idea.

Perhaps the broader point here is that people have the right be the opposite gender of their birth. This is not simply a change of the body, but a change of legal status as well. I am not sure why birth certificates can't be amended to reflect a person's gender post-transition. My guess would be that they were born a certain gender and that the documentation must reflect that.

While it is true that no conflict currently exists between the transgender community as a whole and governmental policy, I'm fairly certain that conflicts exist between transgendered people and individuals who don't approve of them. To say that what you're doing is protected by the Constitution and to be able to offer legal proof feels pretty good to me. 

[Mister]

Transsexuals are allowed to transition freely.... so...  what's your point?

as for birth certificates, that is a state issue.  were you born in a state that doesn't change sex on birth certificates?  what are you doing to change that?

[Kara]

Transsexuals are allowed to transition freely.... so...  what's your point?

as for birth certificates, that is a state issue.  were you born in a state that doesn't change sex on birth certificates?  what are you doing to change that?

I'm sure you're aware that there are hate groups out there that target transsexuals and they are sometimes the victim of violent crimes, yes? I believe information such as this would go a long way to defusing a lot of potentially troublesome situations. I am of the opinion that hate crimes would be reduced in number if it was understood that this is a right guaranteed by law, not merely something that people are doing for which lawmakers have not spoken upon yet.

I really have no idea if my state allows an amending of birth certificates or not. I'm not even sure if the Due Process argument would be seen as valid reasoning to have that law changed. For now, I'll just say something I don't say very often: "I don't know yet." 

[tekla]

I'm fairly certain that conflicts exist between transgendered people and individuals who don't approve of them.

And I'm damn sure that nothing in the Constitution is meant or intended to solve conflicts between individuals.  In fact, it was meant to solve a particular set of conflicts between the States.  It is primarily a commercial document. The actual structure of the government was not radically changed, it consisted of executive, legislative and judicial branches, just as the Articles of Confederation did, and just like the colonial structure pretty much.  The only real difference is what powers each have, and how they play out.

If you look at the heart of the Constitution, you will find that most of the powers granted to Congress have to deal with commercial issues.  Check out Article I, Section 8, which is the real power, and most of that stuff has to do with trade, money, taxes and the like.

The 14th Amendment is only about due process within the framework of government not between individuals.

[Kara]

I'm fairly certain that conflicts exist between transgendered people and individuals who don't approve of them.

And I'm damn sure that nothing in the Constitution is meant or intended to solve conflicts between individuals.  In fact, it was meant to solve a particular set of conflicts between the States.  It is primarily a commercial document. The actual structure of the government was not radically changed, it consisted of executive, legislative and judicial branches, just as the Articles of Confederation did, and just like the colonial structure pretty much.  The only real difference is what powers each have, and how they play out.

If you look at the heart of the Constitution, you will find that most of the powers granted to Congress have to deal with commercial issues.  Check out Article I, Section 8, which is the real power, and most of that stuff has to do with trade, money, taxes and the like.

The 14th Amendment is only about due process within the framework of government not between individuals.

Okay you missed it or chose to ignore it the first time around, so I'll make it a little harder to ignore. Here:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/lawrencevtexas.html

The Constitution may not have been written with certain things in mind, and the provisions therein may not have been originally intended for the purposes it's being used for today, but it occurs to me that as long as the Supreme Court is interpreting the Constitution in the way that they have (ie, in favor of homosexuals) and going so far as to say a law against them is unconstitutional, then what we have is the Supreme Court basically saying everyone in the LGBT community is guaranteed the same rights as any other citizen.

The opinion written by Justice Kennedy seems to indicate that we as a nation can't use our own personal beliefs to determine what is legal and what is not.

[Mister]

I'm sure you're aware that there are hate groups out there that target transsexuals and they are sometimes the victim of violent crimes, yes? I believe information such as this would go a long way to defusing a lot of potentially troublesome situations.

Uh huh, and how has this line of thinking impacted, say, sexism or racism?  There are hate groups out there that target other minorities, immigrants, homosexuals, transsexuals, jews, muslims--  hell, every minority group.  There is legislation that protects freedom of religion, equality between the sexes, etc...  but are women still paid less than men for equal work?  yes.  are people of certain religions demonized?  yes.  does racism still exist?  yes. 

and what does this have to do with birth certificates?
Post Merge: July 24, 2009, 10:12:28 AM

The opinion written by Justice Kennedy seems to indicate that we as a nation can't use our own personal beliefs to determine what is legal and what is not.

But it's the American way! We do it all the time-  drug laws, sex work, abortion...

[Kara]

I'm sure you're aware that there are hate groups out there that target transsexuals and they are sometimes the victim of violent crimes, yes? I believe information such as this would go a long way to defusing a lot of potentially troublesome situations.

Uh huh, and how has this line of thinking impacted, say, sexism or racism?  There are hate groups out there that target other minorities, immigrants, homosexuals, transsexuals, jews, muslims--  hell, every minority group.  There is legislation that protects freedom of religion, equality between the sexes, etc...  but are women still paid less than men for equal work?  yes.  are people of certain religions demonized?  yes.  does racism still exist?  yes.

First, michellesofl had a concern about birth certificates. I posted my answer, that's all.

I don't think I'm saying that hate crimes will disappear altogether. What I am saying, in a nutshell, is that as government becomes more accepting of such things, other people will be as well.

In my opinion (and mind you, this is just what I think), hate crimes arise from a belief that what they are doing is right. I believe that in most instances, you will find that it's based on the person performing such things that the other person is in the wrong, that there is something about them which does not fit the normative standard. For instance, if anti-semitism was an issue for which the courts had not decided, you might see a lot more of it. But instead one idea is: "That sort of thing is illegal now so even if I don't like Jews that much, I'll just keep it to myself."

There is no remedy to make every citizen safe from every small group that stirs themselves up into a passion about an inconsequential detail of someone else, but I think there is a way to reduce it. This is one such way. I think the feeling that nation has overall for a particular community counts for a lot- and that feeling comes from what the laws of this nation are.

It may be worth noting that racism in the 20th century would not have been as bad it was without the decision of Plessy v. Ferguson in 1896 which basically said that although slavery had been abolished, black people did not have the same rights under the law as white people. More about that here:
http://www.watson.org/~lisa/blackhistory/post-civilwar/plessy.html

[tekla]

government becomes more accepting of such things, other people will be as well

Actually the reverse tends to be true, the people lead, the government follows.

Due process only guarantees access to the process, not the outcome.

Oh yeah, and this: The Framers (or Founders, if you prefer).  Two different groups (though largely the same people) the Framers were the people at the Constitutional Convention, while the Founding Fathers were the people who wrote the Declaration of Independence.  There is almost a generation between those two events.

[Kara]

government becomes more accepting of such things, other people will be as well

Actually the reverse tends to be true, the people lead, the government follows.

Due process only guarantees access to the process, not the outcome.

Oh yeah, and this: The Framers (or Founders, if you prefer).  Two different groups (though largely the same people) the Framers were the people at the Constitutional Convention, while the Founding Fathers were the people who wrote the Declaration of Independence.  There is almost a generation between those two events.

I must admit, I'm becoming a little annoyed with you. 

You seem to be missing quite a few significant points that I thought were fairly clear but apparently got overlooked somewhere along the way. I don't even know why we're having this discussion to begin with.

-While the Framers and Founders were two different groups people (with the exception of Benjamin Franklin), it's clear that all of them agreed that human beings have natural rights which should not be abridged, but they were also Christian and would not have approved of the LBGT community as a whole. This point from you amounts to nitpicking.

-I already gave an example of how government decides an issue and the people follow. Plessy v. Ferguson. Honestly, are you reading my posts at all or what?

-I suppose your final argument is that....a decision in favor of gay rights is not a positive thing for the LBGT community? You seem to be of the opinion that the decision has no relevance to anything other than the issue itself. At least, when you disagree with everything I have to say at every turn, that's my impression.

[tekla]

It's not nit-picky, and I'll tell you why - or let you tell yourself....
it's clear that all of them agreed that human beings have natural rights which should not be abridged

There is no mention of natural rights, or anything coming close to that in the Constitution.  This is what the Constitution says:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Clearly, in the Constitution rights come from the people and the purpose of the government is to secure them.  No mention of god (god is not mentioned anywhere in the entire document) or of natural rights.  Its a compact, a contract if you will, between the people and the government.

It's the Declaration of Independence that articulates the theory of natural rights as given by god (or the creator).

And it's not just old Ben Franklin.  Jefferson, the author of the DoI was not there at the Constitutional Convention, and James Madison, the primary writer of the Constitution was not at the writing of the DoI.  In fact only a few signed both, George Read, Roger Sherman, Benjamin Franklin, Robert Morris, George Clymer, and James Wilson.  Roger Sherman was the only person to have also signed the Articles of Confederation. So you have two different groups, with two different aims, two differing goals, and two very different documents.

As for Plessy, all that did was enshrine the common wisdom of the time, as many court cases to.  The South (and face it the North was in a lot of places not all that different) had put it into de facto practice, all Plessy did was make it legal too.

A young law clerk at the time of Brown overturning the Plessy finding wrote:
To the argument... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.  His name was William Rehnquist, and I think the point is valid, at least to the degree that its not court cases that determine that, but the will of the majority. 

Or, as Andrew Jackson famously said: The Supreme Court made its decision, let them enforce it.  No law is worth anything if the people are not willing to abide by it.  Real change comes slow.

So the example of Plessy is wrong I think.  The imposition of a 'separate but equal' system (that wasn't) was already in effect through most of the South, the Court only confirmed the popular notions.  Those rule were pretty much in effect since 1877, while Plessy did not get heard till 1896.  So people didn't follow the Court at all, they preceded it.

Or, as one person quipped, that the Supreme Court reads election results, it just takes them a few years to get around to it.   

[Kara]

All right, that is a lot more clear.

However, a lot of the articles in the Constitutional amendments read like this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There are two ways to look at it. The way that I prefer is that the people who put the amendments together wanted to define a list of rights that the people had without actually saying that these rights were inherent to human nature. It follows that if the government cannot make a law saying that this freedom can't be abridged then the people have that right as a citizen of the country. The other way of looking at it is that they simply wanted to limit the power of the new government and couldn't decide on what rights the people had and didn't have.

I have a hard time separating the Constitution from the Declaration of Independence. If the people in that time believed that certain rights were god-given (because some of the colonial leaders had signed a document saying as much), would they really turn around 12 years later and say, "Wait a minute, no, these rights are not god-given, Thomas Jefferson had it wrong." That doesn't seem very plausible to me. While each document was written by different people and came at different times, I think the ideology presented in the Declaration had a great influence on the Constitution. There was this idea that church and state should be separated, but I find it hard to believe that government policy was entirely set apart from religious beliefs.

I still don't agree that the Supreme Court is just a follower of trends and has no influence on the events following their rulings. You can say that racism had been huge in the country during the 1890's, but the Court's ruling made it permissible to be racist, which is the central point I think. Now we have a similar situation- the mood of the country is leaning towards tolerance of homosexuals and transsexuals. If the Supreme Court makes a ruling saying a law abridging the rights of such people is unconstitutional, am I supposed to believe that won't have an effect on how people behave in the future?

I don't think there's anything to say that this ruling is simply a bunch of guys off somewhere making a decision that everyone ignores. I think, instead, that it's a ruling which not only reflects the mood of the country at the time but also sets the tone for future disputes, which will in turn make people more and more tolerant (and, let us hope, accepting) of the LBGT community as a whole.

I don't think it's a coincidence that the Plessy case preceded an even greater racial conflict than what had been in the country before the ruling- not that the issues of race arose out of nowhere in 1896, merely that they were suddenly magnified because everyone saw "separate but equal" as a chance to practice their own prejudicial behavior in whatever manner they saw fit. I also don't think it's a coincidence that Brown v. Board of Education heightened the racial struggles even more by saying the establishment of unequal treatment in the south had to stop.

Would all these things have occurred all on their own? Perhaps they would. But I'm pretty sure they would have taken longer or would have happened in different ways had not the Supreme Court made its decision.

There is also yet another example. In Dred Scott v. Sanford, the Supreme Court made a ruling which said that black people were not meant to be included as recipients of Constitutional rights and said that Congress has no right to make a law abridging slavery because property rights are sacred (which is found nowhere in the Constitution but is instead an influence of John Locke). I should also like to note that at this time, Abolitionists were gaining steam in the country and that slavery was seen as a dirty practice for a while. In fact, in the Constitution, the phrase "3/5 of all other persons" is written in, not slaves. It didn't take long after this decision that the Civil War began.

Here's some info on that:
http://www.pbs.org/wgbh/aia/part4/4h2933.html

So yes, looking at the landmark cases they've participated in, as well as the ones that don't get any notice, I would say that the influence of the Supreme Court's decisions on American culture as a whole cannot be ignored.

I suppose if you still disagree with me after reading that, I'll never be able to convince you.