Law

Media Briefing at American Association for Advancement of Science Symposium on Biology, the Law, and Definitions of Sex (February 18)

Eric Vilain, M.D., Ph.D.
Associate Professor of Human Genetics, Pediatrics and Urology
Chief, Medical Genetics, Department of Pediatrics
Director, Laboratory of Sexual Medicine, Department of Urology
David Geffen School of Medicine at UCLA

1. Recent advances in the genetics of sexual development have shown the extreme complexity of defining males and females from a biological standpoint. There is no one biological parameter that clearly defines sex.

The Constitutional Court of Colombia has issued three decisions which establish important protections of the human rights of intersex people and restrict the authority of parents and physicians to authorize medically unnecessary genital plastic surgery. Read an English summary of the decisions, or the complete decisions in Spanish, online.

Frankle, R. E. (2003). "Does a marriage really need sex? A critical analysis of the gender restriction on marriage." Fordham Urban Law Journal XXX: 2007-37.

"Limitations on marriage affect a greater number of people than is first evident. That is, an apparently heterosexual marriage could be successfully challenged if one person is unknowingly intersex. Confining marriage to between two people of the opposite sex leads to problems deciding what an opposite sex couple is and who defines an opposite sex couple."

28 September 1999 For Immediate Release

"Defining Male and Female: Intersexuality and the Collision Between Law and Biology," published in the Arizona Law Review's Summer 1999 number, is a broad examination of the law's treatment of persons of ambiguous sex. Author Julie Greenberg, of San Diego's Thomas Jefferson School of Law, examines binary assumptions in the law and offers a brief discussion of how biology confounds those assumptions.

Greenberg then examines cases which have produced legal definitions of the terms "male," "female," and "sex," and analyzes the legislative intent underlying laws which differentiate based upon sex in order to determine to what extent presumed legislative goals are actually accomplished. Finally, she uses the lens of therapeutic jurisprudence to examine the negative impact which the current legal approach has on individuals and on our society.

In 1987, Wilma Wood was fired. She brought suit against her employer, claiming that she had been fired after the employer learned that she was intersexed and had undergone genital surgery. The U.S. District Court in Pennsylvania found that the Pennsylvania Human Relations Act protects women because of their status as females and discrimination against males because of their status as males, but employers are not legally prohibited from terminating employees on the basis of intersex status. The Court cited caselaw arising under Title VII as "persuasive authority."

63 Fair Empl.Prac.Cas. (BNA) 677, 44 Empl. Prac. Dec. P 37,314

In what may be the first U.S. court decision to consider the constitutional rights of intersexuals, U.S. District Judge Clarence A. Brimmer ruled on February 18 in DiMarco v. Wyoming Department of Corrections, 2004 WL 307421 (D. Wyoming), that state prison officials violated the 14th Amendment Due Process rights of Miki Ann DiMarco when they consigned her to 14 months in a dungeon-like high security lock-up without affording any kind of hearing process for her to challenge that decision.

Founded in 2006 through an Equal Justice Works Fellowship, the Institute for Intersex Children and the Law is the first organization in the country to undertake a coordinated strategy of legal advocacy for the rights of children with intersex conditions.

In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), was a challenge to J'Noel Gardiner's claim, as a widow, for letters of administration and inheritance from Marshall Gardiner's estate. The Kansas Supreme Court refused to recognize J'Noel, a post-operative male-to-female transsexual, as female for purposes of marriage, instead finding that the law contemplates "a biological man and a biological woman" for a valid marriage. This ruling reverses the court of appeals' more flexible approach, which relied on Professor Julie Greenberg's article in the Arizona Law Review article and said courts should consider multiple factors to determine sex. The court of appeals opinion appears at 22 P.3d 1086 (Kan. Ct. App. 2001).