Two Papers on Legal Issues for TS and IS people

From the sublime to the ridiculous.

First, Employment Discrimination and the Transsexual(1996) by JoAnna McNamara which I first mentioned 18 months ago. The link died, but I have a new one. It's still the definitive text on the legal aspects of the problem.

Then there's a product of that Bastion of Christendom, Liberty University. Transsexualism and the Binary Divide: Determining Sex Using Objective Criteria(2006) by Mathew Staver.

It's a good resource for a summary of lots of legal cases where inhumanity, lack of logic, and complete ignorance of biology has led to some very perverse results. Those that fit the author's thesis are described in detail. Those that do not might get a passing reference in a footnote.

The author's thesis?

This article deals with the legal status of postoperative transsexuals in terms of marriage and sex-based classi cations. Until recently, sex has been assumed to be binary, i.e., male and female. Whether sex is immutable or transitory, objective or subjective, has now become an international concern. This article addresses every case in the world every decided on this issue. The resolution is centrally important to the battle over marriage and sex-based classi cations.
The thesis of this article is that sex is an immutable characteristic at the time of birth and must be determined by objective criteria.
Sex must be determined by objective factors such as biology and physiology.
A person's sex is determined by chromosomes. When there is harmony between biology and physiology, surgery cannot alter a person's sex merely because that person desires a di fferent gender. If sex is primarily a state of mind and based on subjective mental desires, equal protection for sex-based classi cations becomes meaningless. To maintain any stability and meaning to sex-based classi cation, sex must (and can) be determined by objective factors.

Oh gosh, where to begin. So much FAIL....

OK, first off, there is a bald statement :

However, a clinical definition of intersex only includes conditions in which the phenotype, or the visible characteristics, are not classifiable as either male or female (for example, the presence of both male and female genitalia), or chromosomal sex (e.g., XX or XY) is not consistent with phenotypic sex.(156) There is nothing in the definition of intersex that refers to psychology. On the other hand, transsexuals are born with chromosomal and phenotypic consistency.

156. See Leonard Sax, How Common is Intersex? A Response to Anne Fausto-Sterling, 39 J. OF SEX RESEARCH 174, 176 (2002). The term “intersex” is usually reserved for individuals of intermediate sexual differentiation, who are most often sterile. See William S. Klug, Michael R. Cummings, 3d ed. ESSENTIALS OF GENETICS 155-70 (Prentice Hall: Upper Saddle Back River, N.J. 1999).

Except that Sax excludes those whose chromosomal sex is not consistent with phenotypical sex, as long as the phentypical sex looks mostly male or mostly female. Thus he doesn't consider 47XXY an Intersex condition. The reference used to justify the statement contradicts it.

Sax's fanatically exclusive definition, one only he adheres to, is then used to say that few Intersexed people exist. And such things as this:

PATIENTS: A 46,XY mother who developed as a normal woman underwent spontaneous puberty, reached menarche, menstruated regularly, experienced two unassisted pregnancies, and gave birth to a 46,XY daughter with complete gonadal dysgenesis. -- J Clin Endocrinol Metab. 2008 Jan;93(1):182-9

disappear by sleight-of-hand.

It's essential to do this, in order for chromosomes to be considered the definitive indicator of sex. Otherwise, the absurdity of a mother of three being "really male" would be apparent. Those with mixed cell lines such as 47XXY/46XX or 46XY/45X aren't mentioned at all.

Now let's look at the definition of Transsexuality:

transsexuals are born with chromosomal and phenotypic consistency

That is, in fact, the definition of Transsexuality in the ICD-10. No Intersex, chromosomal or otherwise, condition can exist for this diagnosis. Furthermore, the US DSM-IV-TR definition of "Gender Identity Disorder" - because Transsexuality is not defined in it - also precludes any Intersex condition.

One problem: by this definition, we have no evidence that "transsexuals" exist. Because all those diagnosed as Transsexual that have ever been tested have inconsistent phenotypes. In theory, for the exclusions to be meaningful, everyone presenting with an apparent diagnosis of GID should be given hundreds of thousands of dollars worth of diagnostic tests, genetic, MRI, ultrasound... in fact, almost none are. Those that have been given neuro-anatomical testing in certain areas have all shown anomalies. Unfortunately, the best tests require autopsy, so have limited practicability.

Male–to–female transsexuals have female neuron numbers in a limbic nucleus. Kruiver et al J Clin Endocrinol Metab (2000) 85:2034–2041

The present findings of somatostatin neuronal sex differences in the BSTc and its sex reversal in the transsexual brain clearly support the paradigm that in transsexuals sexual differentiation of the brain and genitals may go into opposite directions and point to a neurobiological basis of gender identity disorder.

White matter microstructure in female to male transsexuals before cross-sex hormonal treatment. A diffusion tensor imaging study. - Rametti et al, J Psychiatr Res. 2010 Jun 8.

CONCLUSIONS: Our results show that the white matter microstructure pattern in untreated FtM transsexuals is closer to the pattern of subjects who share their gender identity (males) than those who share their biological sex (females). Our results provide evidence for an inherent difference in the brain structure of FtM transsexuals.

Now let's look at the "Immutability" of chromosomes.

Bone marrow-derived cells from male donors can compose endometrial glands in female transplant recipients by Ikoma et al in Am J Obstet Gynecol. 2009 Dec;201(6):608.e1-8 :

RESULTS: All recipients had donor-derived Y chromosome-positive endometrial cells, accounting for 0.6-8.4% of glandular epithelial cells and 8.2-9.8% of stromal cells. Most of the endometrial glands were chimeric, consisting of both donor-derived and recipient cells.

CONCLUSION: Donor-derived cells are capable of composing endometrium in recipients, even those of the opposite sex.

So "transsexuals" - as the author defines them - don't exist, or at least, the definition does not apply to any of the legal cases mentioned. And chromosomes are not immutable (especially in the case of people with multiple cell-lines, where the proportion of each may change over the patient's lifetime).

Finally, it appears this "chromosomal" definition only applies to Transsexuals; and that those who are Intersexed have their sex undefined. A definition that is arbitrarily, even subjectively, tailored to one particular group (on the grounds of a-priori religious belief), but is not generally applicable, contradicts the whole argument about desirability of a universal and objective test.

This is a deeply dishonest paper. It's factually wrong in all of the bases of its argument, and uses "sleight of hand" to conceal unpleasant truths even when they're acknowledged. There is no attempt to differentiate the arbitrary definitions adopted in law from objective definitions. Sex determined at birth, why? Because some judge said so. There's no argument that this reflects reality.

Despite that, I think that in a few boundary cases, sex really is determined at birth, In fact, it's determined before then, in the neurological circuitry laid down by hormonal mix, as modulated by genetics - the former being dominant. But chromosomes? As well to use height, as "men are taller than women", or weight at birth, because "boy babies are bigger".

Whatever is used, make it consistent, so it applies universally. If absurdity results, junk it.

You know what the best practical test is? One that doesn't involve the complete arsenal of medical imaging, and vast costs?

After excluding florid psychosis - you ask the patient what sex they are. That appears to be 98% reliable, rather better than almost any diagnostic test in medicine. It's an objective metric, not dependant on the tester's subjectivity.