Where the T Should Not Be

From an op-ed by NCLR’s Kate Kendell in today’s Bay Area Reporter:

The sole purpose of DOMA is to discriminate against same-sex couples.

I’ve no qualms with that statement.  It accurately distills the statutory language as well as the hundreds of pages of transcripts of Congressional hearings and debates from 1996.

The problem is that the paragraph which contains that sentence begins with this one:

DOMA was passed in order to express moral disapproval of LGBT people.

No.  It was passed in order to express moral disapproval of lesbians, gays and bisexuals.  The fact that plenty of the eels who were slithering around the U.S. Capitol had no use for trans people either is actually irrelevant; the fact that a handful of the members of the  anti-gay horde who helped to manufacture DOMA in 1996 had, in previous years, supported state laws which provide for legal recognition of change of sex is….

well, in gay circles, it tends to be forbidden knowledge, not to be spoken of in polite company (you know, like the overwhelmingly anti-trans employment practices of Gay, Inc.)

In those hundreds of pages of transcripts of Congressional hearings and debates from 1996 you’ll strain every aspect of your being attempting to find any references to trans-anything.  Granted, if you look hard enough, you can find one or two oblique, non-substantive references to trans-something-or-another.  However, as to what Congress actually was targeting, let’s look at a 2005 opinion from the Board of Immigration Appeals:

There is no question that a valid marriage can only be one between a man and a woman. Marriages between same-sex couples are clearly excluded.

This interpretation is further supported by the legislative history of the DOMA. The House Report specifically states that the DOMA was introduced in response to a 1993 decision of the Hawaii Supreme Court that raised the issue of the potential legality of same-sex marriages in Hawaii. See H.R. Rep. No. 104-664, at 2-6 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-10, 1996 WL 391835 (Leg. Hist.) (citing Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (remanding for application of strict scrutiny under the Hawaii equal protection clause to the question of the denial of marriage licenses to same-sex couples)). Throughout the House Report, the terms “same sex” and “homosexual” are used interchangeably. The House Report also repeatedly refers to the consequences of permitting homosexual couples to marry.

However, with regard to one of the specific issues we are facing in this case, i.e., whether the DOMA applies to invalidate, for Federal purposes, a marriage involving a postoperative transsexual, it is notable that Congress did not mention the case of M.T. v. J.T., 355 A.2d 204 (N.J. Super. Ct. App. Div. 1976), which recognized a transsexual marriage.1 Nor did it mention the various State statutes that at the time of consideration of the DOMA provided for the legal recognition of a change of sex designation by postoperative transsexuals. Rather, Congress’s focus, as indicated by its consistent reference to homosexuals in the floor discussions and in the House Report, was fixed on, and limited to, the issue of homosexual marriage.

Furthermore, a specific statement in the House Report’s section-by-section analysis provides support for the conclusion that Congress did not consider transsexual marriages to be per se violative of the DOMA. According to that statement, “Prior to the Hawaii lawsuit, no State has ever permitted homosexual couples to marry. Accordingly, federal law could rely on state determinations of who was married without risk of inconsistency or endorsing same-sex ‘marriage.’” H.R. Rep. No. 104-664, at 30 (emphasis added). As noted above, M.T. v. J.T., supra, and the statutory provisions in several States recognizing a legal change of sex after surgery were in existence at the time the House Report was issued.

We therefore conclude that the legislative history of the DOMA indicates that in enacting that statute, Congress only intended to restrict marriages between persons of the same sex. There is no indication that the DOMA was meant to apply to a marriage involving a postoperative transsexual where the marriage is considered by the State in which it was performed as one between two individuals of the opposite sex.

Of course, the BIA isn’t the SCOTUS – but the legislative history of the federal DOMA is not the legislative history of an act that in any way targeted trans-anyone as trans-anything.  And saying that the federal DOMA “was passed in order to express moral disapproval of LGBT people” recklessly disregards the only good thing that trans people – particularly transsexuals – have to show for the quarter-century of complete exclusion from the national gay rights agenda: A politico-legal history that, if acknowledged and respected, shows that transsexuals’ post-transition legal identities should not be wiped out by laws designed to attack gays and lesbians.

But what do I know?

I’m just a transsexual woman.

I learned long ago where my opinions – and all facts supporting them – matter and where they don’t.

2 Responses to Where the T Should Not Be

  1. It may have been passed to discriminate against gays, lesbians and bisexuals, but it has disproportionately been deployed to jack with the marriage (and civil) rights of TRANSSEXUALS

    • Katrina Rose says:

      I don’t disagree. However, the fact that it has been used in such a manner is evidence of the unwillingness of those who apply the law to make any effort to analyze the law’s actual intent – and phraseology like that used by Kendell gives aid and comfort to those whose judicial temperament is laziness.

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