Fwd: Same Sex Marriages-Real Case

[James Maule]

>>> Sanford Levinson <slevinson at MAIL.LAW.UTEXAS.EDU> 11/11 11:02 AM >>> =
writes
I don't think I have any argument at all with Jim.  He is clearly right
that even sexual (as distinguished from gender) identity is far, far more
complicated that we have been led to believe by a wholly inaccurate notion
that there are only two sexes that can always clearly be distinguished by
both chromosomes and genitalia.  The reason for my emphasis on
transgendered persons is simply that this is where a lot of litigation is
in fact occurring, so that lawyers, whatever their wishes, can't avoid
confronting real live, non-hypothetical, situations.  Hermaphrodites are
also real and alive, but I'm not aware (perhaps it is my own ignorance) of
any litigation in which hermaphoridism is the central issue.

---------------------------------------------------------------------------=
----

I'm not surprised the litigation focuses on "transgendered" individuals, =
using that term to refer to people who have had physical gender change =
operations after infancy. I suppose the reason for lack of litigation =
involving hermaphrodites is that during the past 50 years medical science =
has been able to deal with these situations at birth, just as it can =
handle infant boys with undescended testicles (a much more common than =
realized situation).

My point is that to permit someone to argue, "No admission to a women's =
locker room, or no assignment as a roommate to a female, etc, because the =
person now a woman once was a male" would permit that argument to be made =
with respect to surgically repaired hermaphrodites. In addition, it would =
be difficult to enforce because a good surgeon can do wonders and who =
would know that the woman once was a male? If she is asked, isn't that an =
intrusion on privacy without even reasonable justification? If it is asked =
of people "who look like they've been changed" and not of other people, =
isn't there a serious gender discrimination issue? If it is asked of =
everyone (for example, on college housing applications) isn't it going to =
make colleges look silly?=20

Pre-op individuals pose more difficult issues, because they describe =
themselves as being of the gender to which they will be physically =
changed, yet they are biologically of their present gender (though some =
are in an in-between state that resembles hermaphroditism). Given, for =
example, that many women would not want a pre-op male-not-yet-female as a =
roommate, would not the pre-op individual not want a male roommate for the =
same reasons? And, of course, the potential male roommate very well would =
be just as uncomfortable. Though a separate room might be the practical =
solution for the college dormitory manager's dilemma, what gets done with =
respect to a public rest room? Simple: Use a stall and shut the door. =
Don't stare at those putting on makeup. And don't listen to the chatter =
(which may be another reason "intruders" aren't welcome....)





Jim Maule
Villanova University School of Law
Villanova, PA 19085
(610) 519-7135
maule at law.vill.edu