Elizabeth Hungerford is a licensed, though non practicing, attorney in the Commonwealth of Massachusetts. She identifies as a feminist, lives as a lesbian, is a longtime observer and sometime commenter on matters of sex and gender in American law. Her opinions are solely her own.
Three things to understand about sex and gender in US law
The first thing to understand about sex and gender in American law is that there are both federal and state laws. There are even more laws at the town, city, and county levels of government–each with different, often overlapping, domains of control or jurisdiction. The American legal landscape is sometimes likened to a crazy quilt.
In theory, there is a hierarchy that places federal laws above all others, but sometimes the federal government is silent, such as with certain forms anti-discrimination protections for homosexuals. There are also realms of governance considered rightly delegated to state or local oversight.
The second thing to understand about sex and gender in American law is that issuing birth certificates is one of the areas reserved for state control. Birth certificates are literally ground zero for creating the legal fiction of a sex change. Each natural born American citizen’s federal identity is built up from the foundational document of a birth certificate: state issued birth certificates inform the federal issuance of Social Security cards and passports. Because of our decentralized system for maintaining records of birth, and unlike the nationally administered Gender Recognition Certificate process in the UK, requirements for amending the sex marker vary from state to state. Depending on the geographic happenstance of your birth, sexual reassignment surgery might be required to amend your birth certificate…or it might not. In some states, self-ID is already status quo.
The third thing to understand about sex and gender in American law is that when someone has legally changed the sex marker on their birth certificate, antidiscrimination laws protecting the individual’s so-called “gender identity” are entirely unnecessary. In other words, male transsexuals who have amended the sex marker on their identification documents to reflect “female” are already using women’s bathrooms and following women’s sex specific dress codes at work. These males don’t need to ask special permission or file a lawsuit to present, behave, and be treated “like a woman.” They are already “female” in the eyes of the law. This is simply a legal fact. Nothing short of attacking and repealing with retroactive effect the vital records processes responsible for changing sex markers on birth certificates in nearly every single state could reverse this legal reality. Arguing that new judicial interpretations of existing federal laws threaten to compel us to treat and speak about men as if they are women (because men said so) is to overlook what has been going on in American law for decades. That genie cannot be put back into the bottle.
Harris v. Stephens
The Harris v. Stephens case currently before the Supreme Court of the United States (SCOTUS) has already generated significant controversy among feminists. There is a lot of speculation and conflicting interpretation flying around, partially because the arguments made by the parties to the case are confusing and contradictory. I don’t claim to know how SCOTUS will rule or what the long term consequences will be, but I do have some opinions about what can and cannot be reasonably expected from this case. Most importantly, as I explained above, do not expect this case to prevent or reverse the legal fiction of sex changes in America.
Harris v. Stephens asks whether it is an act of unlawful sex-based discrimination, under Title VII of the Civil Rights Act of 1964, to fire a male self-identified transgender person because they plan to undergo a social transition that requires them to present in the workplace “as a woman,” specifically by using a new name and adhering to the “women’s” dress code. The validity of the employer’s sex-specific dress code is not contested. In other words, we should not expect https://hookupdate.net/de/reveal-review/ Harris Funeral Homes’ dress code itself to be found unlawful.