Cruz, David — Getting Sex “Right”: Heteronormativity and Biologism in Trans and Intersex Marriage Litigation and Scholarship

Cruz, David. “Getting Sex ‘Right’: Heteronormativity and Biologism in Trans and Intersex Marriage Litigation and Scholarship.” Duke Journal of Gender Law and Policy 18.203 (2010): 203-222.

In this article, Cruz explains how cultural rhetoric presents gender as a “truth,” a biomedical fact that can be discovered. He explains that under this idea, one can be “right” or “wrong” about their gender. The article poses several questions: What is the definition of a “man” and a “woman” in terms of marriage? Is it enough to simply identify a certain way, or must one also have corresponding genitals? Is gender contained in one’s chromosomes? Their presentation? Their actions, beliefs, and attitudes? Is it intrinsically tied to other aspects of one’s identity, or can it be independent?

The article cites the language in several court cases dealing with trans and intersex marriage litigation.  In one particular example, it examines the case of Karen Ulane, an employee at Eastern Airlines who was fired after openly transitioning to female at work. She sued Eastern Airlines on basis of discrimination based on sex, while the opposition countered that the true reason she was fired was not because of her sex, but because she is transgender (206). The article also details instances of trans people being denied custody rights and inheritances. The question of whose authority should be considered dominant in defining gender (medical professionals’, judges’, lawmakers’, society’s, or individuals’?) is considered, particularly in light of the fact that many of the cases of courtroom violence against trans people happened to trans people who had their legal sex changed on their birth certificates and driver’s licenses. The birth sex of the trans person in question was often taken to be their “true” sex, regardless of their legal sex or their identity.

The article poses several more questions: Does the problem with trans/intersex marriage litigation lie with the law’s interpretation of marriage or of sex/gender? Cruz asks whether gender identity can be said to be protected under the First Amendment as an ideology, the way religion is, in light of the characteristics gender identity possesses (for example, that it is a means of social organization, and is handed down from a higher, extra-human authority source, be that God or Nature) that overlap with religion.

This article brings up some excellent court cases that exemplify heteronormative violence being done to those who deviate from the accepted gender binary—the implication of the Ulane court case being that discrimination against trans people is legal. The numerous questions Cruz poses in the article about the way we construct our social reality seem very closely related to our use of heteronormative language to do violence to those who do not conform to the structures put in place. The authority figures in place (here, the court justices) have decided that a certain way of living is “right,” and have interpreted the language of the law in a way that limits gender-nonconformists, such as transgender men and women, from enjoying the full legal protections they ought to be entitled to as United States citizens.

An interesting point that Cruz brings up is that the English language (the language used in the US and in its court decisions) itself is inherently limited. It is technically correct to say “his or her” (as though those were the only options) rather than the gender neutral “their” in a number of circumstances. This kind of limitation shapes the way we can see the world, and makes it that much more difficult to perceive injustices when they occur, as we assume that is simply the “natural” way of things. Galtung says that all those who benefit from violent structures are implicit in violence if they do not attempt to dismantle the structures. Here, those who conform to and benefit from a gender binary created in part by the limitations of the structures of the English language, then magnified by the language chosen in the legal system, also do violence by continuing to adhere to language that inherently limits others’ options for self-expression and identification.

The following quote, taken from the language of a court decision, highlights the issue of language and heteronormativity: “Sex is clearly an essential determinant of the relationship called marriage because it is and has always been recognized as the union of man and woman. It is the institution on which family is built, and in which the capacity for natural heterosexual intercourse is an essential element.” (205, emphasis mine). The language of the court decision not only states that marriage is not a social construction that could be altered (“is and has always been”), but that it also must be between a man and woman, which raises the question Cruz asks in the article—What makes a man a man, and a woman a woman? In addition, by calling “natural” heterosexual intercourse essential for marriage, the language of the decision delegitimizes homosexual marriages and completely erases asexuals. Two cisgender asexuals—a male and a female—could “pass” as heterosexual, but under the current language used by the court, their marriage is equally as invalid as homosexuals’ because they may not necessarily have sex. The heteronormative language used by the court is violent because it creates strict guidelines for what relationships and gender identities may be, and simultaneously rewards those who conform while punishing those who do not by denying them the same legal consideration provided to their gender-conforming peers.

–Jessica King

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