August 22, 2007
Introduction -- Defining "LGBTIQ"
LGBTIQ Legal Issues: An Introduction
Legal issues involving sexuality and gender identity constitute an emerging and rapidly growing field. Law professors who teach in other areas may increasingly find themselves having to address LGBTIQ issues. As the initial post for this web log on LGBTIQ legal issues, we provide an overview that describes something of the range of issues, and an explanation of what “LGBTIQ” stands for.
LGBTIQ stands for lesbian/gay/bisexual/transgender/intersexed/questioning. This potentially confusing acronym reflects the internal politics of social movements around issues of sexual orientation and gender identity. It conveys symbolically and rhetorically the desire to achieve a high degree of political unity among groups with diverse, potentially conflicting, legal and policy issues. In principle, LGBTIQ activists wish to respect varied experiences of prejudice and discrimination resulting from non-conformity in terms of sexuality and gender expression. In practice, such activists recognize the strength of numbers and hope to attract all potential participants and supporters into a mostly unified social movement.
The “homophile” movement by and for lesbians and gay men dates to 1952, with the creation of the Mattachine Society. Reflecting ongoing tensions between lesbians and gay men over political strategy and issue priorities, a group of lesbians formed the Daughters of Bilitis in 1955.
In 1969, patrons of the Stonewall Inn in Greenwich Village rioted in response to a police raid, which was otherwise routine for the time and place. Many of the participants were transgender, including drag queens and transvestites. The immediate aftermath of the riots, however, produced political groups called the Gay Liberation Front and Gay Activists Alliance. In 1974, the National Gay Task Force formed. The names of these groups all reflect the use of “gay” as a catch-all term to indicate women as well as men, and variation in terms of gender identity as well as in terms of sexual orientation and/or practice.
But tensions continued, with some lesbians finding that feminism addressed their concerns better than the gay rights movement. The National Gay Task Force added “Lesbian” to its name in 1987. But the gender differences between lesbians and gay men more likely involved disagreements over priorities and strategies than specific legal or policy issues. As the debate over same-sex marriage began to heat up during the early 1990s, the authors who were most likely to reject marriage as a goal for lesbians and gay men were feminists, mostly lesbians; some gay men also doubted the wisdom of pursuing marriage as a lesbian/gay civil rights goal while many lesbians participate actively in the pursuit of marriage rights. It is easy to over-generalize about the constituents of the LGBTIQ social movement.
“Transgender” is a broader term than “transsexual.” A transsexual is usually a person who either intends to undergo, or has undergone sex reassignment surgery.
Transgender persons can include persons who prefer to wear the clothes of the other gender, or otherwise appear publicly as the other gender in terms of deportment, make-up, etc., without necessarily undergoing surgical reassignment.
See Phyllis Randolph Frye and Katrina C. Rose, “Responsible Representation of Your First Transgendered Client, 66 Tex. B.J. 558 (2003).
By the 1990s, transgender persons began to assert their distinct presence within the “gay rights” social movement, and their distinct legal and policy issues. The process of including transgender issues within the lesbian/gay rights umbrella involved substantial conflict, with the Human Rights Campaign initially resisting calls to add “gender identity” as a protected category to the Employment Nondiscrimination Act (ENDA), a bill pending in Congress that would prohibit employment discrimination on the basis of sexual orientation.
Proponents in the late 1990s believed they had a real chance of passing ENDA and believed that adding gender identity as a protected category would make it unpassable. Transgender activists responded that much employment discrimination against lesbians and gay men takes the form of objections to their failure to conform to gender norms, making discrimination based on “sexual orientation” and discrimination based on “gender identity” functionally indistinguishable.
Transgender persons do often face legal and policy issues that are distinct from those of lesbians and gay men. Several cases now exist in which courts have had to decide the validity of marriages in which the parties were different sexes at the time of marriage, or represented themselves as such, but either one partner had already undergone reassignment surgery, or would do so after the marriage. To date, courts have consistently held that an individual’s anatomical sex at birth, or chromosomal sex, governs hir (to use the gender-neutral version of the pronoun) legal gender. See, e.g., Kantaras v. Kantaras, 884 So. 2d 155, 2004 Fla. App. Lexis 10997 (Fla. Ct. App. 2004) (upholding nullification of marriage ab initio on grounds that husband, as female-to-male transsexual, was not male at time of marriage for purposes of state marriage statute, including useful overview of cases from other jurisdictions).
In the United States, anyone who wishes to undergo reassignment surgery must have a doctor’s approval, which can result in conflict that might lead either or both parties to consult attorneys. Transgender persons sometimes find that otherwise routine traffic stops can escalate if their appearance at the time of the stop is significantly different from their appearance in their driver’s license photograph. Persons who have undergone sex reassignment typically wish to change the sex on their birth certificates. States vary in their willingness to do so. The issue of providing medical treatment, especially hormone therapy, to transgender inmates has produced a significant amount of litigation. See, e.g., Brooks v. Berg, 270 F. Supp. 2d 302 (N.D. N.Y. 2003), complaint dismissed, Lewis (a/k/a Brooks) v. Berg, 2006 U.S. Dist. Lexis 21422 (N.D. N.Y. April 20, 2006); Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002).
For a critical overview, see Dean Spade, Resisting Medicine, Re/modeling Gender, 18 Berkeley Women’s L.J. 15 (2003).
In addition to transgender issues, common topics for future posts, covering issues for lesbians, gay men, bisexuals, and intersexed persons as well, will include family law, employment discrimination, military service, federalism, the First Amendment, immigration, and prisons. Future introductory posts will define “intersexed” and “queer.”
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