You Can't Take It With You: Constitutional Consequences of Interstate Gender-Identity Rulings

68 Pages Posted: 19 Oct 2005 Last revised: 16 Jun 2009

See all articles by Marybeth Herald

Marybeth Herald

Thomas Jefferson School of Law ( (deceased)

Julie A. Greenberg

Thomas Jefferson School of Law

Date Written: October 19, 2005

Abstract

Contradictory approaches to defining male and female can create bizarre and confusing results as transsex persons cross state lines and find that their legal sex changes according to the laws of a given jurisdiction. Recent U.S. decisions establishing a person's legal sex have adopted a kaleidoscope of approaches that range from the absurd (a man must be able to fertilize ovum and beget offspring, while women must produce ova and bear offspring), to the religious (gender is immutably fixed by our Creator at birth), to the scientific (gender itself is a fact that may be established by medical and other evidence). Under current laws and state court rulings, a male-to-female transsex person is legally a woman in approximately one-half of the states and legally a man in the other one-half of the states. This article discusses the constitutional implications of the varied approaches to determining a person's legal sex. It concludes that states that refuse to recognize an amended birth certificate from a sister state violate principles of full faith and credit and unconstitutionally infringe upon the right to travel under the dormant Commerce Clause. In addition, when states impose sex tests that are based on gender stereotypes and force people to live as the sex that conflicts with their self-identified sex, they violate the Fourteenth Amendment's equal protection and substantive due process mandates.

Keywords: sex, gender, transgender, discrimination, equal protection, full faith and credit, dormant commerce clause, substantive due process, right to travel, marriage, civil rights

JEL Classification: K10

Suggested Citation

Herald, Marybeth and Greenberg, Julie A., You Can't Take It With You: Constitutional Consequences of Interstate Gender-Identity Rulings (October 19, 2005). Washington Law Review, Vol. 80, No. 4, p. 819, 2005; TJSL Legal Studies Research Paper No. 823764. Available at SSRN: https://ssrn.com/abstract=823764

Marybeth Herald (Contact Author)

Thomas Jefferson School of Law ( (deceased)

701 B Street
Suite 110
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United States

Julie A. Greenberg

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4245 (Phone)

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