Transgender Theory: Reprogramming Our Automated Settings

19 Pages Posted: 29 Mar 2006 Last revised: 30 Sep 2009

Marybeth Herald

Thomas Jefferson School of Law


Over the course of the last few decades, both law and society have struggled to deprogram unhelpful and downright destructive gender stereotypes that are ubiquitous in our everyday existence. It has not been an easy task, nor entirely successful on either the legal or cultural front. Laws that prohibit gender discrimination, such as Title VII, have helped end overt discrimination. The next phase involves the challenging problem of unconscious bias, which often effectively keeps us treading the same mental paths while bypassing any roads not traveled.

It is not surprising then that when the validity of even the basic categories of male and female are questioned, the collective unconscious of our society rebels even more against the challenge. The categories of male and female, like yin and yang, are a universal explanatory principle. Yet science has upset what we had come to think of as second nature - two easily identifiable sexes. Scientific evidence reveals that the terms "male" and "female" hide a complexity of biology, chromosomes, and chemicals that in some cases resist such easy labeling. Medical technology advanced in the latter part of the twentieth century to enable surgery to alter anatomy, and suddenly there was visual proof that your sex identified at birth was no longer the immutable characteristic that many assumed it to be.

When confronted with these developments, an interesting mix of science, psychology, and law emerged in the court cases. This essay briefly surveys these cases and discusses some emerging trends. Shackled into labeling humans as unambiguously male and female, courts lose the ability to recognize the complexity of transsexuality. New information is shuttled off to storage because it does not fit into pre-existing categories. Ultimately, what we learn from this situation is that courts, like human brains, initially resist data that counters longstanding categorical assumptions. Presenting new scientific evidence is not in itself sufficient when asking courts to confront settled categorical rules; re-framing the debate in broader terms is essential. In Europe, the broad theory of human rights provided specific protection for transsex persons. In the United States, the broad theory of gender nonconformity, with the application in the area of how transsex persons were also subject to sex stereotyping, has proven persuasive. But with regard to marriage, courts in the United States have not grasped the complexity. They have shown a marked resistance to understanding the issues, and are locked into framing human intimacy in terms of male and female, even when unable to satisfactorily define those terms.

Keywords: Sex, gender, transgender, discrimination, human rights, marriage, civil rights, international law

Suggested Citation

Herald, Marybeth, Transgender Theory: Reprogramming Our Automated Settings. Thomas Jefferson Law Review, Vol. 28, 2005; TJSL Legal Studies Research Paper No. 893859. Available at SSRN:

Marybeth Herald (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4257 (Phone)

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