Wednesday, 10 September 2008

Incoherence and Rulemaking in the USA

Via TransLate, a detailed look at the Looking-Glass world of administrative law concerning trans people in the USA - Documenting Gender : Incoherence and Rulemaking, a draft paper by Dean Spade.
Many people are under the impression that everyone has a clear “legal gender” on record with the government, and that changing “legal gender” involves presenting some kind of evidence to a specific agency or institution in order to make a decisive and clear change to the new category. Because of the long history linking transgender identity with medical authority and popular cultural beliefs that changing gender involves surgical procedures, it might especially be assumed that achieving gender reclassification requires presenting medical evidence to an appropriate administrative or judicial decisionmaker. As it turns out, the reality of the rules that govern gender reclassification in the US is far more complex.
Not to say contradictory, insane, bizarre and inhuman.

From Christie Lee Littleton's Story :
Christie Lee can go to Houston, Texas and legally marry a man, but if she moves back to San Antonio, Texas, her legal marriage in Houston is now illegal. She could legally marry another woman in San Antonio though, and it would be a same-gender marriage because the State of Texas administratively recognizes her current gender as female. Harris County only accepts current gender for marriage licenses, and Bexar County only accepts original birth certificate gender for marriage licenses, not current gender. Confused? Texas government certainly is. This is what happens when government, in this case the courts, starts meddling in people's private lives.
And that's just a start. Such legal psychopathy - for there's no other word that fits - makes a mockery of the law, and the whole concept of marriage. It is beyond Ironic, and well into the Surreal, that all this inhumanity, this making a farce of matrimony, is being committed in the name of defending the sanctity of marriage.

6 comments:

Anonymous said...

I am not sure you understand the United States. States rule is law in each state and it can and is different then Federal law. The states can disagree with federal law as long as it is constitutional. Then courts are independent from each other. The judge is a dictator in his own court. he can put you in jail at a whim.Your only right is to appeal to a higher court and useally the judges are appointed by the same people that appointed the first judge you encounted.

Zoe Brain said...

We have a state and federal system too, here in Australia. The details differ, but the principle's the same.

In Texas, your sex depends on which county you're in. Some counties ignore state law.

I have dual UK/Australian citizenship. In Australia, I'm legally female, in the UK, legally male. And neither country permits same-sex marriage.

In the USA, I have no idea.

Leah said...

Anonymous,

You're missing the BIG point. The hypocracy and injustice of it all. It shouldn't be this complex, but our government has this pathogical dislike for most things related to sex, gender or worse *gasp* transsexualism. People have been medically transitioning for more than 60 years; it's time for this stupidity to end.

Battybattybats said...

It's a total failure of education. Education of the basic philosophical principles!

What has caused this has been individuals abusing the system to impose personal morality over the lives of others, often but not always from a false understanding that acceptable public morality can be based upon specific religious edicts.

But that is entirely contrary to the basic fundamental philosophical precepts upon which modern democracy was founded where the law must serve everyone equally regardless of religious beliefs, not impose one set of religiously based standards over all.

Even those whose arguments for various disperate laws are not specifically based on religious morality often have an utter missunderstanding of the principles of modern democracy. They tend to think the majority rules. However the decisions of the majority are supposed to be constrained by specific philosophical principles, those which led to the bill of rights etc. These laws all run utterly counter to those principles.

All these folk need a proper lesson in the philosophic underpinnings of those rights! In fact the whole general populace need to too so that they can responsibly carry out their duties as citizens when voting.

And finally of course the third great contributer is excessive compromise. When righting wrongs in the system, ie making things more the way they should have been from the outset according to and in line with the same basic philosophic principles, incremental approaches are sometimes taken to mollify those opposed to fairness, equality etc involved. So instead of righting the wrong attempts are made just to lesson it, or to right it for some and not for others.

This leads to inconsistencies from the many unique compromises all of which involve maintaining some degree of inequality and injustice while misslabeling it fair or reasonable when it is not so.

So whereas an understanding of the same basic principles should result in approximately the same conclusions (on civil-rights issues at least!) with variety coming only from minor systemic differences with little broad impact the ignorance of and often downright rejection of fundamental principles and obligations on the parts of lawmakers and judges results in a catastrophic scale of and variety of inexcusable unmitigated injustice.

The primary error is in refusing to recognise or in not being educated in the ethics of office and of rights. In a society with religious freedom personal morality may come from any source but the system whereby right and wrong applies when in any office and for determining right and wrong between individuals of differing cultures and beliefs and between the state and the citizen must come from the notions of mutually recognised equal freedoms.

For an official to be ignorant is to fail their duty and those who fail to teach them have failed in their duty. Those who willfully ignore it are corrupt, as corrupt as anyone taking a cash bribe. Abusing their position. Violating their moral and ethical obligation of duty.

Nica said...

The really amazing thing is that the US has come so far from how it used to be 30, 40, 50 years ago. People used to get arrested just for wearing more than two pieces of female attire. Even if they were undergarments! Can you believe that?! Things will continue to get better although there will be a lot of frustrations along the way.

Sara said...

Never underestimate the power of the local religious zealots!

Anyway, I *think* this is the final draft of the Spade paper:

http://www.law.ucla.edu/williamsinstitute/publications/Policy-GenderIdentity-index.html

which lists what looks to be the final revision of the document (click on the small "Documenting Gender" under the description), or use this direct URL:

http://www.law.ucla.edu/williamsinstitute/publications/Documenting%20Gender%20-%20Spade.pdf