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The Transsexual and the Damage Done: the Fourth Court of Appeals Opens Pandoma’S Box by Closing the Door on Transsexuals’ Right to Marry

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The Transsexual and the Damage Done: the Fourth Court of Appeals Opens Pandoma’S Box by Closing the Door on Transsexuals’ Right to Marry The Transsexual and the Damage Done: The Fourth Court of Appeals Opens PanDOMA’s Box By Closing the Door on Transsexuals’ Right to Marry Katrina C. Rose I. INTRODUCTION ..................................................................................... 4 A. Preface ......................................................................................... 4 B. Questions ..................................................................................... 5 C. Caveat .......................................................................................... 8 II. A NOT-SO-BRIEF PRIMER ON TRANSSEXUALISM ................................ 8 A. Basic Theories ............................................................................. 8 1. Chromosomes ..................................................................... 9 2. Hormones ......................................................................... 10 3. The Humanity Factor ....................................................... 12 B. Definitions ................................................................................. 14 1. Trans . ............................................................................ 14 2. Intersex .............................................................................. 16 3. TV vs. TS vs. Gay ............................................................ 17 C. History ....................................................................................... 19 1. Modern—More or Less ................................................... 19 2. Prior to 1900 ..................................................................... 20 3. Christian Demonization of Indigenous Transgenderism ................................................................ 21 D. Other Medical & Psychological Concerns .............................. 24 1. The Ups and Downs of Gender Identity Disorders ........ 24 2. More on Intersexuality ..................................................... 26 E. Some Legal Essentials............................................................... 30 1. Change of Name ............................................................... 30 J.D., South Texas College of Law, 1998. Licensed to practice in Texas and Minnesota, currently living in the latter; transgender issues writer and political analyst for the Texas Triangle and Minneapolis-based Lavender Magazine. The author wishes to dedicate this article to Texas Triangle editor Nancy Ford, who, two years ago, threw her a lifeline disguised as a soapbox. The author thanks Professors Buford Terrell and Paul McGreal for their help and criticism on the research that ultimately went into this Article. 1 2 LAW & SEXUALITY [Vol. 9 a. Transsexuals Are Not the Only Disfavored Group Ever to Have Had Problems With Name Changes .................................................... 30 b. Transsexual Name Changes and the Fraud Factor .................................................................. 31 i. New York .................................................... 31 ii. Pennsylvania ................................................ 32 2. Crossdressing .................................................................... 33 a. History ................................................................ 33 b. Illinois ................................................................. 35 c. Texas ................................................................... 38 3. Criminal Deviance ........................................................... 39 4. Employment ..................................................................... 40 5. Sex Reassignment Surgery (SRS) ................................... 41 F. Other Legalities ......................................................................... 45 1. Is It All Just Fraud? .......................................................... 45 2. Conflicts Over Recognition of Gender Transition .......... 45 a. By the Ostensibly Straight World ....................... 45 i. Sports ........................................................... 45 ii. Securities, et al. ........................................... 47 iii. Actual Matters of the Heart ......................... 48 b. By the Non-Straight World ................................. 49 III. THE POLITICS OF TRANSSEXUALISM IN TEXAS: 1999 ....................... 52 A. She Is My Father ....................................................................... 52 B. We Are Hot Potatoes ................................................................. 52 IV. CHRISTIE LEE LITTLETON AND HER WRONGFUL DEATH SUIT AGAINST DR. MARK PRANGE ............................................................ 54 A. The Basic Facts ......................................................................... 54 B. The Details ................................................................................. 55 1. The Beginning of the Trouble .......................................... 55 2. Christie Lee Littleton’s Life Prior to the Suit .................. 55 C. Ormrod’s Monster ..................................................................... 56 D. How America Dealt with Corbett ............................................. 58 1. New York .......................................................................... 58 2. New Jersey ........................................................................ 59 3. Ohio ................................................................................... 61 E. The Weight of Authority; The Taint of the Authority ................ 62 1. The Courts ........................................................................ 62 2. The People ........................................................................ 64 F. Much More to the Legal Picture Than Meets the Eye ............. 66 1999-2000] TRANSSEXUALS AND DOMA 3 1. Australia ............................................................................ 68 2. Singapore .......................................................................... 71 G. My Criticism of the Littleton Litigation ................................... 72 H. More Criticism for the Court .................................................... 76 1. What Hardberger Did Versus What He Claims to Have Done ........................................................................ 77 a. More on Birth Certificates .................................. 79 i. Switzerland .................................................. 81 ii. Oregon ......................................................... 84 iii. Texas ........................................................... 86 b. Back to Marriages (But Still Not Forgetting Birth Certificates) .............................. 87 V. W HAT WAS IN CHIEF JUSTICE HARBDERGER’S OPINION BUT SHOULD NOT HAVE BEEN, WHERE IT CAME FROM, AND WHERE IT MIGHT GO FROM LITTLETON ............................................. 91 A. DOMA ........................................................................................ 91 B. Majoritarian Politics of the 1990s, Federalism and Same-Sex Marriage ................................................................... 91 C. One of Many Non-Exhaustive Surveys of the Pre- Littleton Same-Sex Marriage Landscape ................................ 94 1. Off on the Road to Hawaii ............................................... 94 2. The Federal Reaction to Hawaii ...................................... 95 a. DOMA and Federal Law .................................... 96 b. DOMA and the States ......................................... 99 c. Profiles in Federalism: DOMA Was Not the First Encroachment on Federalism in Family Law ....................................................... 101 3. Congress Was Not Alone—The States Reacted Also ................................................................................. 102 4. “Shall” vs. “Ought” and the Purported Public Policy Exception ............................................................ 104 5. The Other Congressional Writing on the “Full Faith and Credit” Wall Before DOMA ......................... 107 6. Again—Action by Congress vs. Inaction by Congress ......................................................................... 108 7. Adventures in Comparison ............................................ 109 a. Anti-Miscegenation Laws and Same-Sex Marriage Proscriptions, If Not Identical Twins, Then Certainly Fraternal Ones .............. 109 b. Littleton Meets Loving? .................................... 111 4 LAW & SEXUALITY [Vol. 9 i. Similarity in Effect .................................... 112 ii. Equal Protection and Sexual Orientation ................................................. 113 A) The “will of the majority”? ............... 113 B) A New Suspect? Not Even in Vermont, Yet ..................................... 116 VI. MORE OF WHAT WAS NOT ARGUED BUT SHOULD HAVE BEEN ..... 119 A. Equity ....................................................................................... 120 B. The Constitution, et al. ............................................................ 121 1. State ................................................................................. 121 2. Federal ............................................................................ 122 C. Fear of the Reality of a Knee-Jerk Adoption of Corbett in Texas .................................................................................... 126 VII. CONCLUSION .................................................................................... 127 A. Summation ..............................................................................
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