Getting Sex "Right": Heteronormativity and Biologism in Trans and Intersex Marriage Litigation and Scholarship

ABSTRACT This Essay criticizes two negative tendencies in legal scholarship, lawyers' arguments, and judicial opinions addressing the legal of and the validity of marriages involving transsexual and intersex persons. First, some pro-transrecognition arguments display a tendency to treat questions of a person's legal as simply a matter of biomedical fact or truth. These arguments typically treat views rejecting transgender persons' self-identified as objectionable primarily for their failure to get that is, their failure to enshrine in law the current views of medical practitioners. Second, and relatedly, some pro-recognition arguments manifest an undefended heteronormativity, naturalizing not only sex, but also cross-sex desires. Canvassing U.S. judicial decisions in marriage-related cases that reject claims that a litigant's had been legally changed, this Essay argues both that these arguments' heterosexism is objectionable and unnecessary for making effective recognition arguments, and that the getting right approach fails to appreciate how legal is a normative, regulatory tool, not a natural fact. Getting right risks unaccountable legal decision-making and transfers of power to an alternative regime, that of medicine, that may seem more congenial than the legal arena at the current moment, but which is not guaranteed to promote the liberty and equality of transgender, or indeed any, persons. Litigants, judges, and scholars around the world have grappled with issues of determination. A frequent site of contestation has been civil marriage, which in modern times has, until recently, been formally restricted in most western jurisdictions to a union of one man and one woman. (1) When the validity of a marriage involving a transsexual or intersex person has been challenged, courts have had to respond, and have done so in countries including Australia, Canada, New Zealand, South Africa, the United States, the United Kingdom, and the European Union. The decisions have been mixed, some ruling against the transgender parties, some recognizing their lived sex. But critiques of the non-recognition decisions and arguments in favor of recognition have too often been framed either in terms that reinforce heterosupremacy, or as if the only problem has been the law's failure to follow some medical practitioners in embracing a more nuanced version of biological sex. While this approach, which I call getting right, could have some positive results, I argue in this essay that it rests on a mistaken--and dangerous--view of legal as a mirror of natural fact. As just noted, some progressive decisions have recognized the sex/gender of transpersons who have undergone surgical procedures, and concomitantly the validity of marriages into which they have entered. These include M.T. v. J.T., (2) decided by an intermediate appellate court in New Jersey in 1976; the declaratory judgment action decided by the High Court of Wellington in Attorney General v Otahuhu Family Court (3) in New Zealand in 1994; the case of In re Kevin, (4) decided October 2001 by Justice Richard Chisholm of the Family Court of Australia and affirmed on appeal; and the landmark 2002 judgment of the European Court of Human Rights in Goodwin v. U.K. (5) In many other instances, however, courts continue expressly to follow the unfortunate biologism of the path-breaking 1970 English judgment in Corbett v. Corbett (otherwise Ashley). (6) Corbett began with a suit seeking a declaration of legal nullity of a marriage brought by an uncontested male, Arthur Corbett, against a transsexual woman, (7) April Ashley; Corbett had married Ashley with full knowledge that she had been identified male at birth and in adulthood had undergone various sex reassignment procedures, including vagino-plasty. (8) As framed by Justice Ormrod, [t]he case ... resolves itself into the primary issue of the validity of the marriage, which depends on the true of the respondent, and the secondary issue of the incapacity of the parties, or their respective willingness or unwillingness, to consummate the marriage, if there was a marriage to consummate. …

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