And so word comes that President Obama will sign the trans-inclusive hate crimes bill into law on Wednesday.
Wednesday is the 28th, which, of course, is a day after the 27th.
The 27th (today here in the CDT, though WordPress is still acting as though its the 26th) will make ten years of Texas-residing and Texas-born transsexuals living with the result of a particularly insidious incident of conservative judicial activism. These are my thoughts (even though Monica Roberts has already blogged about the anniversary. )
A wedding anniversary? Unfortunately, no.
So, if your memory hasn’t been jogged by the date – Oct. 27, 1999 – try this little nugget:
This case involves the most basic of questions. When is a man a man, and when is a woman a woman? Every schoolchild, even of tender years, is confident he or she can tell the difference, especially if the person is wearing no clothes. These are observations that each of us makes early in life and, in most cases, continue to have more than a passing interest in for the rest of our lives. It is one of the more pleasant mysteries.
The deeper philosophical (and now legal) question is: can a physician change the gender of a person with a scalpel, drugs and counseling, or is a person’s gender immutably fixed by our Creator at birth?
Ring any bells? How about this:
If we look at other states or even other countries to see how they treat marriages of transsexuals, we get little help. Only a handful of other states, or foreign countries, have even considered the case of the transsexual. The opposition to same-sex marriages, on the other hand, is very wide spread. Only one state has ever ruled in favor of same-sex marriage: Hawaii, in the case of Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). All other cases soundly reject the concept of same-sex marriages. See, e.g., Dean v. District of Columbia, 653 A.2d 307 (D.C.1995); Jones v. Hallahan, 501 S.W.2d 588 (Ky.1973); Baker v. Nelson, 191 N.W.2d 185 (Minn.1971), aff’d, 409 U.S. 810 (1972); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). Congress has even passed the Defense of Marriage Act (DOMA), just in case a state decides to recognize same-sex marriages.
Still no bells a-ringin’? Try this:
There are some things we cannot will into being. They just are.
October 27, 1999: The day that two judges on one of Texas’ fourteen intermediate appellate courts became the first jurists to invoke the federal Defense of Marriage Act – even in part – to extinguish an existing marriage.
October 27, 1999: The day that two judges on one of Texas’ fourteen intermediate appellate courts decided to legislate specific anti-transsexual provisions onto Texas marital law and identity law – legislating negatively in an area that that the Texas Legislature had had decades to ‘occupy’, yet had declined to occupy.
October 27, 1999: The day that two judges on one of Texas’ fourteen intermediate appellate courts invoked non-U.S. law (an English court decision authored by but a single judge and authored 180 years after the adoption of the U.S. Constitution) to usurp the power of the Legislature to impose a specific – and disproven – standard sex-determination standard on the state.
October 27, 1999: The day that two judges on one of Texas’ fourteen intermediate appellate courts judicially legislated that standard on the fly and then refused to remand the case so as to allow the transsexual woman in question to prove whether she could meet the standard, affirming a summary judgment in favor of a doctor (read: in favor of an insurance company.)
All four points are important to transsexuals born in, or living in, Texas – but that last one was of specific importance to the woman who had brought the suit against the doctor as the surviving spouse of a deceased man.
How?
Based on the facts of this case, and the law and studies of previous cases, we conclude:
(1) Medical science recognizes that there are individuals whose sexual self-identity is in conflict with their biological and anatomical sex. Such people are termed transsexuals.
(2) A transsexual is not a homosexual in the traditional sense of the word, in that transsexuals believe and feel they are members of the opposite sex. Nor is a transsexual a transvestite. Transsexuals do not believe they are dressing in the opposite sex’s clothes. They believe they are dressing in their own sex’s clothes.
(3) Christie Littleton is a transsexual.
(4) Through surgery and hormones, a transsexual male can be made to look like a woman, including female genitalia and breasts. Transsexual medical treatment, however, does not create the internal sexual organs of a women (except for the vaginal canal). There is no womb, cervix or ovaries in the post-operative transsexual female.
(5) The male chromosomes do not change with either hormonal treatment or sex reassignment surgery. Biologically a post-operative female transsexual is still a male.
(6) The evidence fully supports that Christie Littleton, born male, wants and believes herself to be a woman. She has made every conceivable effort to make herself a female, including a surgery that would make most males pale and perspire to contemplate.
(7) Some physicians would consider Christie a female; other physicians would consider her still a male. Her female anatomy, however, is all man-made. The body that Christie inhabits is a male body in all aspects other than what the physicians have supplied.
Sounds conclusive, right?
But, in a first-year legal writing class, that passage would have received a failing grade – not because I’m a transsexual woman and have a clear (and legitimate) issue with a judge invoking his deity to justify anything, but because of something missing, something that a first-year law student would not be allowed to get away with assuming in a memo, yet a Texas judge (and future mayor of San Antonio) was never called out on – except by the people who have a vested interest (thereby, of course, de-legitimizing us) in ensuring that transsexual law is accurately rendered.
Do you see anything in there about any actual evidence as to what Mrs. Littleton’s chromosome pattern actually is?
Of course not – because there wasn’t any.
Neither Chief Justice Phil Hardberger (the author of the passages above), nor his cohort, Karen Angelini, nor even the dissenter Alma Lopez noted that there was nothing in evidence by which anyone could actually determine whether Littleton should be eaten by, or spared from, Ormrod’s Monster. Lopez felt that the birth certificate issue was enough to send the case back for trial:
Although a birth certificate is not a legal pleading, the document is an official state document. Amendment of the state document is certainly analogous to an amended legal pleading. In this case, Christie’s amended birth certificate replaced her original birth certificate. In effect, the amended birth certificate nullified the original birth certificate. As a result, summary judgment was issued based on a nullified document. How then can the majority conclude that Christie is a male? If Christie’s evidence that she was female was satisfactory enough for the trial court to issue an order to amend her original birth certificate to change both her name and her gender, why is it not satisfactory enough to raise a genuine question of material fact on a motion for summary judgment?
A good question.
A better question is why Angelini, as a concurrence to a decision establishing a sex standard based on chromosomes (which, when last I checked, anyone not descended from Jor-El needs an electron microscope to see) would write the following:
[I]t appears that all biological and physical factors were congruent and were consistent with those of a typical male at birth. The only pre-operative distinction between Christie Lee Littleton and a typical male was her psychological sense of being a female.
Appears?
(Karen Angelini…Kara Zor-El…Nah – I don’t want to go there.)
No – it could not actually appear.
Why?
Because no one had ever bothered to look.
Littleton v. Prange emerged in Texas shortly after I had left. It had, of course, been percollating for some time before I moved away in July 1999 – but the first that I or anyone in the organized (or even semi-organized) trans community in (or connected to) Texas heard of it were news reports following the oral arguments at the Fourth Court of Appeals just before Labor Day. In fact, I returned from a Labor Day weekend vacation to Winnipeg to find an e-mail box (alas, vacations away from the internet; I knew them well) bursting at the e-seams with those reports – and a buttload of other chatter about the case.
I made my own assumptions about the case (more on those below), but I ended up spending a good portion of my first winter in Minnesota putting together a 150+ page law review article about the October 27, 1999 decision of the San Antonio Court of Appeals – and I concluded that article with something about what had somehow ‘appeared’ to the two-judge majority, yet was something that I was not seeing.
I wasn’t seeing it, because I’m a transsexual woman, not Supergirl.
Sarah DePalma isn’t Supergirl either, but she did contact Christie Lee Littleton about those chromosomes – and here is how the result of that contact appeared in a footnote to my article:
The cite: Katrina C. Rose, The Transsexual and the Damage Done: The Fourth Court of Appeals Opens PanDOMA’s Box by Closing the Door on Transsexuals’ Right to Marry, 9 Law & Sexuality 1, 131 (2000) (unfortunately, this isn’t yet available on a non-pay site; when that changes I’ll update this with a link.)
There’s the key: Two judges in an American court judicially legislated a standard that had been made up three decades earlier, in a non-American court by a non-American judge, and then refused to let an American-born woman offer proof as to how she should be classified under that standard.
You know that if a two-judge majority had made a ruling, based on foreign law, establishing gay marriage or in any way impeding the ability of the state to kill innocent people, that Fox ‘News’ would have been organizing lynching-in-effigy tele-events.
Yes, you do know it – even if you don’t want to admit it.
But, this wasn’t pro-gay marriage; it was anti-transsexual – and the majority had used anti-gay marriage law, in part, to justify its result-oriented result.
And it was 1999.
We all know who the governor of Texas was then – and we all know that he was then, as he had been for some time, marshalling all aspects of state majesty to create the TV-friendly illusion that he should be taken seriously as a ‘compassionate’ candidate for the presidency in 2000 (as an aside, two words: Bob McDonnell!!!!!.)
And he was doing so positively and negatively; he had (behind the scenes of course) successfully prevented a hate crime bill from even being voted on by the state senate earlier in 1999 – because it was going to pass. He had no intention of letting himself come to be in a position to have to do something in 1999 that he had been able to avoid doing since he had taken office in 1995: take a stand on something. For, you see, that 1999 hate crime bill covered ‘the queers’.
Not all of them of course.
In this article, “sexual preference” means a preference for heterosexuality, homosexuality, or bisexuality.
Oh yeh…
Not only did HB 938 not only not include trans-anything, it went all retro, turning back the clock from “orientation” to “preference.”
But the mere possibility of that becoming law was seen as a victory – as it was when similar language did worm its way into the statute books once George W. Bush had moved east to begin planning the evisceration of the nation’s civil liberties.
In this article, “sexual preference” has the following meaning only: a preference for heterosexuality, homosexuality, or bisexuality.
Remember – I did say similar.
Between 1999 and 2001, it got worse.
In the spring of 1999, there was at least some nano-room for some – perhaps in the equal-sign-addled set, perhaps not – to claim that the language might cover trans people.
A few months later, two judges legislated a pronouncement that transsexual women were gay men when it comes to gay marriage law yet definitionally were not homosexual.
And then in 2001, once Texas got a governor with better hair and more distant presidential aspirations (seriously, he is still being floated as 2012/2016 fodder), a bill which made it even clearer than things were in 1999 that the only kinds of homosexuals that mattered for purposes of hate crimes were those who were “only” homosexual – not those who were actually transsexual yet homosexual-via-operation-of-Phil-Hardberger’s-prejudices – not only got that state senate vote but also the goodhaired governor’s signature.
And who got the shaft?
You know who got the shaft.
2001 was also the year that Maryland utilized the similar language (minus the “only”) to enact a gay-only employment discrimination law which HRC equated to making the state a “discrimination-free zone“.
And then came New York.
And then in 2003 came my final column at the Texas Triangle, which contained the unpopular – yet accurate – assertion that, at that point (the later breed of super-DOMAs have ensured that even domestic partnerships are now targeted), transsexuals were the only people who had lost any existing rights to anti-gay-marriage laws…
you know, laws targeted specifically at gays and lesbians.
2003 was the year of the Texas DOMA (building upon not only a 1973 law, also cited in the Littleton opinion, but also growing anti-gay-marriage paranoia and the unwillingness of those at the top of the gay marriage industry even to acknowledge that there was a backlash to the push for gay marriage), and I asked:
Will the brand new Texas DOMA, with pro-transsexual amendments having been rejected along the way, be interpreted as a statewide codification of Littleton v. Prange, the 1999 anti-transsexual travesty which, as it stands now, is only binding in the counties covered by the San Antonio Court of Appeals?I don’t know. I wish I did, but I truly don’t. It shouldn’t. But, neither the 1973 Texas statute nor the 1996 federal DOMA should have been used against Christie Lee Littleton’s Kentucky marriage back in 1999.
What is the answer? Every transsexual in Texas needs to know. Every person in Texas who is a spouse in a marital relationship that does not consist of one female with both a vagina and XX chromosomes and one male with both a penis and XY chromosomes needs to know.
Ultimately, of course, they will find out. They just don’t know when, but it is sure to be when they can least afford to—like Christie Lee Littleton did in 1999.
Well, the entire community was ill-equipped to deal with Littleton v. Prange at the time.
And, no, that’s not some thinly-veiled declaration that I’m a non-Kara Zor-El Supergirl who could have solved everything. In fact, I probably would have made the same decision I did make from afar.
When I first heard about the case, I smelled a rat. I didn’t think that the case was even a legit, active ‘dispute.’
- A long-term post-op woman hadn’t bothered to get her birth certificate changed prior to marrying a man?
- She later sues as the man’s widow?
- Only once the issue of her transsexuality is brought up – by the defense – is a birth certificate secured for her which recognizes post-transition reality (thereby also painting a target on her and her case: ‘Hey, lookee here!!! Here’s what’s wrong with the case!!!’)
Honestly, my first thought that Littleton was an ‘ex-transsexual,’ purposely bringing a transition-recognition case with the worst possible fact pattern to ensure a bad outcome for everyone concerned.
Paranoia on my part? Well, maybe – but only in part. In the years since, I’ve had the opportunity to meet Christie Lee on a few occasions – including political stuff (she is, of course, ‘out’ now – thanks to her case.) She’s a really nice person who deserved better than what happened in 1999 (though I do stand by part of my analysis from back then: if the appellate court was simply wanting to be what Texas courts are – corporate utilities – and rule in favor of the insurance company doctor then it should have made no decision as to whether she was male or female after the birth certificate change but instead narrowly ruled that since she had not done the birth certificate change until after the marriage, then she was technically male for purposes of the non-marriage; in other words, the court should have made a narrow bad ruling for her instead of a pro-conservative, orgasmically-bad ruling for everyone.) So, she’s definitely not an ‘ex-transsexual’, but her case…
[Cue up the Lurch voice] Uuuhhhhhhhhhhhhhhhhhhhhhhhhh….. [Back to human voice]
And so that was 1999…
and then the Texas and U.S. Supreme Courts dodged the case in 2000…
and then 2001…
and then 2003…
and then came 2005 and a state constitutional amendment….
and so on…
But no, I’m not oblivious to the fact that all has not been bad since then. On Oct. 27, 1999, I lived in a state that was unique in that its gay rights law was legitimate – trans-inclusive. Ten years later, only a handful of the illegitimate ones have been rectified, but Maryland, New York and Delaware were an illegitimate minority among new gay rights laws – and, now, a clear majority of states with gay rights laws, including the two states I’ve lived in since then (Iowa and Illinois) have legitimate ones. And, while American transsexual court decisions have been generally – well, for lack of a more scholarly phrase – sucky for most of that time, somewhat ironically, the non-American judicial decision on which all of that American anti-transsexual case law is ultimately based was finally flushed away by Parliament (rumor has it that the decision, along with all acoutrements related to Arthur Corbett’s sexual proclivities, were seen floating in Arizona Bay; the rumor, of course, is unconfirmed – but the Gender Recognition Act is real.)
Ah…but that 2001 Texas “only” law? No – that hasn’t changed.
But, federal bills have.
In 1999, H.R. 77, Sheila Jackson Lee’s `Hate Crimes Prevention Act of 1999′, read in part:
the incidence of violence motivated by the actual or perceived race, color, national origin, religion, sexual orientation , gender, or disability of the victim poses a serious national problem
The standard corporate line at the time is that maybe, possibly, sort of, take-it-cuz-that’s-all-yer-gettin’ trans people would be covered in there somewhere,and maybe, possibly, sort of, take-it-cuz-that’s-all-yer-gettin’ there would be some legislative history that might be suggestive of equal applicability to Brandon Teena-esque murders as well as Matthew Shepard-esque murders.
And S. 622, Ted Kennedy’s Senate version?
the incidence of violence motivated by the actual or perceived race, color, national origin, religion, sexual orientation , gender, or disability of the victim poses a serious national problem
Refer back to the Lurch sound effect – doubly so for that year’s Barney Bill ENDA, H.R. 2355:
SEXUAL ORIENTATION – The term `sexual orientation’ means homosexuality, bisexuality, or heterosexuality, whether the orientation is real or perceived.
At least he didn’t use “only.”
Should we be thankful?
And should we be thankful that none of those managed to get through Congress to be signed by Bill Clinton?
From Outlines of June 30, 1999 (sorry, the link is long-since dead, even via the WayBackMachine), touting the introduction of that year’s ENDA:
Frank forthrightly raised the fact that “this bill does not protect everybody,” specifically transgender people. He explained that no bill has ever done that, yet he eagerly voted for legislation ending gender discrimination, the Americans with Disabilities Act, and others that did not include protection for him. “There is no magic button we can push that will protect everybody all at once.”Later, responding to a question, [Vermont Sen. Jim] Jeffords called inclusion of transgenders “a matter of practical politics. One step at a time sometimes is better than trying to jump forward. “
So, again: Should we be thankful that none of those – hate crimes or ENDA – managed to get through Congress to be signed by Bill Clinton?
I damn well am.
All things being equal to what they were for the next decade, would trans people have been ‘added’ to them between 2001 & 2009? And would trans-addition as the stand-alone issue that it would be by definition be any kind of priority for the President Obama of October 2009?
In your heart, you know what the answer is.
You know that had a gay-only federal hate crimes law been enacted somewhere along the way – somewhere between Oct. 27, 1999 and Oct. 27, 2009 – there would be no White House ceremony schedued for Oct. 28, 2009 for the signing of a bill to add gender identity to its scope.
We, the unsophisticated trans-scum - lacking the money and coif of either St. Hillary of Rosen or St. Joe of Solmo – are not the reason that it took until Oct. 28, 2009 to get a federal hate crimes bill to the desk of a president. But were it not for us persistently agitating the allegedly-sophisticated non-trans non-scum - and had we dutifully bowed to those who worship ‘incremental progress’ (except when they think their increment is getting short shrift) – the bill that Barack Obama will sign on Wednesday would look and feel quite a bit like that one that Rick Perry signed into law in Texas in 2001, and like the ENDA that certain people wanted George W. Bush to have the opportunity to sign in 2007.
And where do you think that trans-addition to that ‘law’ would be on President Obama’s agenda right now?
In your heart, you know what the answer is.
You know that it wouldn’t be on the agenda at all.
The truth hurts…
just like reading the Littleton v. Prange decision did when first I read it…
ten years ago.
Posted by translegalhistorian 
Posted by translegalhistorian 
Posted by translegalhistorian 
On Thursday, a double-header the hard way: a day game at Kansas City and a night game at St. Louis.
