Ohio courts just don't get transgender issues

There's been a fair amount of media attention of late (including a New York Times piece last December and a 20/20 special last week) on the question of how parents should deal with their young transgender children -- most particularly, should they permit them to present as the "opposite" gender at home and at school? This coverage has been, on the whole, surprisingly sympathetic to parents who answer "yes."

Although litigation on this issue between warring parents was inevitable, it had not arisen in this country until now. The Family Court of Australia has delivered the most thorough treatment of the issue, in holding that a 13-year-old ward of the state should receive hormone therapy to delay puberty an, in the long term, to facilitate gender transition.

Now, the latest Lesbian/Gay Law Notes reports an Ohio appellate decision affirming the denial of custody to a previously custodial mother because she brought her child to transgender support groups and registered her at school as a child (in contrast to her birth sex). I don't think I can add much to the discussion of the case in Arthur Leonard's lengthy blog post, but this decision -- which stands in contradiction to the balance of expert psychological opinion -- looks like a cry for judicial education. Ohio is, after all, one of the few states that persists in the just-because position that gender is immutable.

Addendum on abortion and federalism

Neal Devins of William & Mary was way ahead of me with his new article on the subject:

My claim is simple: The Rehnquist Court was able to revive federalism, in part, because there was no reason for the Court to fear political retaliation for its federalism decisions. Congress, interest groups, and the American people do not care about federalism. On abortionrelated issues, pro-choice interests care about the pro-choice agenda; pro-life interests care about the pro-life agenda. Federalism does not figure into these agendas and, as such, it is politically irrelevant to the debate over abortion. The political fight over partial birth abortion exemplifies Congress’s uninterest in federalism.

Moreover, Lynne Deniston at SCOTUSblog is probably right that, while still-pending PBABA case in the Second Circuit presents the opportunity to raise the federalism issue, reproductive rights advocates probably won't, because they (a) don't care about federalism on its own merits and (b) know very well that any further shoring up of Rehnquist federalism could bite them in the ass on future legislation they favor.

Abortion and federalism

There is, of course, currently an impressive flurry of online discussion about Gonzales v. Carhart -- to which I am paying close attention, it bears very much upon my forthcoming article on informed consent and abortion. I have many thoughts about this decision and its ultimate import, but for now I'll settle for noting the latent federalism question. As Justice Thomas noted in his concurrence, the parties and the lower courts did not raise whether the Partial-Birth Abortion Ban Act was valid Commerce Clause legislation, and so the Supreme Court didn't either.

Until PBABA the Congress, though monkeying with federal funding provisions, had otherwise stayed out of the abortion issue, and it's far from clear whether this kind of law could survive recent federalism precedents. But liberal Democrats have decided to jump into the game, too, reintroducing a a bill from the 109th Congress that would attempt to codify Roe, in all its pre-Casey, strict-scrutiny glory, in the U.S. Code. This bill didn't go anywhere before, and its still might not now, even with the fresh Carhart II furor. After all, the PBABA had significant support from Democrats. It may be that this new bill, if passed, would not pass federalism muster, and neither would the PBABA. Yet public opinion appears to favor uniform, national rule-making on these hot-button issues.

Now, that opinion might change with the new Congressional majority, or new Supreme Court decisions, or whathaveyou. It seems to me that, outside that intellectual arena, when we talk about federalism and "leaving things to the states," the argument is typically a cipher for substantive policy preferences -- i.e., those supporting abortion restrictions favor "leaving it to the states" because the trend in the states was toward restricting abortion; those supporting recognition for same-sex couples favor "leaving it to the states" because there is a long-term liberalizing trend there, in contrast to the proposed Federal Marriage Amendment.

Alternatively, appeals to federalism might be a reflection of our ambivalence about the substantive issue (i.e., we want to have it both ways, for now). But it's hard for most of us to care about federalism for its own sake; instead we argue it because it sounds eminently reasonable, and because it may appeal to the ambivalent.

Having lost on the substantive issues, reproductive rights groups might now launch a federalism challenge to PBABA, and might win. But they'll have a hard time selling the federalism line to their constituents or to anyone else. Perhaps federalism is most important when it comes to controversial social issues (as opposed to true economic regulation) -- but today, do many of us really care?

Alternative sexuality in the news

Since I've recently written about BDSM and the criminal law, it seems worthwhile to point out one of the few regular sources for information about BDSM and other alternative sexualities in the news, including legal news. The National Coalition for Sexual Freedom is a public education and advocacy group dedicated to promoting "sexual freedom and privacy rights for all adults who engage in safe, sane and consensual behavior." Their primary focus is on issues related to BDSM, swinging and polyamory (a curious grouping, but one based on some common concerns). In addition to filing amicus briefs in a few high-profile cases, NCSF posts regular "Media Updates" collecting news reports from around the country. Though NCSF is very much an agenda-driven organization, the fact that their news roundups are commentary-free (save for a general exhortation to write letters-to-the-editor) makes them valuable for anyone interested in these issues or in current social debates over sexuality generally.

An intriguing article on "the right to be hurt"

In late 2004 I penned a column discussing what I perceived to be the rather ham-handed approach of some courts to the use of consent as a defense to criminal assault. The troubling implication of this is the possibility that people could be prosecuted for harmless, private and fully consensual sadomasochistic activities. However, the out-of-hand treatment of the consent issue in these cases could be explained by the troubling particulars of each case, and one could reasonably hope that future decisions would consider the issue more deeply.

Rugters professor Vera Bergelson's new article, "The Right to be Hurt: Testing the Boundaries of Consent," presents just the sort of thorough consideration of the issue I'd been hoping to see. Alas, along the way she points to larger collection of English and American cases -- stretching from 1934 to 2004 -- consistently rejecting any consent defense for purported sadomasochistic activities. The reported facts of these cases underscore that the factual problem of consent here is similar to that in rape cases, to wit, there exists the possibility both of false accusation by a willing "victim" and (perhaps more likely) false assertions of consent by the accused. Courts dodge these difficult determinations by rejecting the consent defense wholesale.

Bergelson's own analysis begins from the premise that issue of consensual "harms" must be treated comprehensively, considering a range of truly disparate phenomena ranging from sadomasochism, to elective amputation, to various kinds of consensual killing. (Doubtless, various readers are going to feel offended at the very idea of comparing x with y.) Examining the way these diverse issues have been previously dealt with in case law and commentary, Bergelson attempts to systematically demonstrate the inadequacy of various principles relied upon in resolving them.

Ultimately Bergelson proposes a "balance of evils" approach to consent defenses, quite similar to other justifications in criminal law. With the respect to the issue I originally was interested in -- consensual sadomasochism -- this approach has the virtue of providing an alternative result to the case law to date without the specter of a slippery slope. While courts have strained to bring sadomasochism within the ambit of "serious injury," it's clear that typically the physical harms involved will be so trivial (or nonexistent) as to "be justified by the mere fact that its participants desired it." The more troubling cases, involving lasting bodily harm or loss or death, will require much greater justification, and some will never be justifiable.

I suspect that Professor Bergelson's approach will not soon be wholeheartedly embraced by judges, particularly in cases where consent itself is disputed. But her thoughtful discussion of the issue is valuable indeed.

Sex change doesn't end spousal support

This one should be a no-brainer: a Florida court has rejected an ex-husband's bid to end his support obligations on account of the fact his former wife has become a man. The ex-husband had first argued that the person to whom he owed the obligation no longer exists (not quite, sir), and then argued that his paying alimony (as it's still called there) to a man was against the State's public policy against recognizing same-sex marriage.

Unfortunately, the court reached this inevitable result by way of unnecessarily bad reasoning -- albeit reasoning seemingly compelled by state precedent. To wit, Florida does not recognize the possibility of changing one's sex, per Kantaras v. Kantaras, 884 So.2d 155 (Fla. App. 2004).

Accordingly, the Lambda Legal attorneys representing the former Mrs. Roach, now Mr. Silverwolf, called this

a good news, bad news decision. While the end result of the court ruling is good for our client, part of how we got there is bad for the transgender community as a whole in Florida. This is the precise example of why it is damaging to chain people to the gender on their birth certificate. It's wrong to call our client a woman when Julio is a man.

The conclusion that sex change is legally impossible is simply not necessary to decide a case like this. Even once one accepts that the former wife is now male, this should not invalidate the support obligation. First, the support order itself contemplates only limited circumstances in which the obligation ceases, none of which have occurred. And second, a gender transition after divorce cannot invalidate a marriage ex post facto. Though no court has squarely addressed the question, it is plain as day that, like any other prerequisite for marriage, the sex criteria must be met at the time of marriage, but a change of circumstance later has no effect.

If you are a minor who marries with your parent's consent, and after the wedding your folks have regrets, that does not invalidate your marriage. If you marry while competent but become incompetent, that does not invalidate your marriage. And if you marry while female and become male, that does not invalidate your marriage. The same result should be found whether the transition occurs during the marriage or after divorce -- or else there are a lot of potentially invalid marriages out there.

This case is the natural inverse of M.T. v. J.T., 355 A.2d 204 (N.J. Super 1976), in which a husband could not escape his obligations on the basis that his ex-wife had once (prior to their marriage) been male. Because the sex change there occurred before the marriage, the court was called upon to decide its validity and did so. Because the marriage was valid, the support obligation was, too. The same is true in this case (where the transition is in the "opposite" direction), precisely because the gender transition occurred after the marriage.

Is sex a BFOQ for exotic dancing?

Title VII of the federal Civil Rights Act states that otherwise impermissible discrimination is not prohibited "in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." Ever since I first began to study Title VII, I have wondered about how the BFOQ exception should apply to exotic dancing.

In a 1999 article, Margot Rutman described how dancers' protections against age, race and national origin discrimination are undercut by club owners' ability to characterize an employment action as based on beauty or style. See Exotic Dancers' Employment Law Regulations, 8 Temp. Pol. & Civ.Rts. L.Rev. 515 (1999). Unless a club really puts its foot in its mouth, or systematically discriminates for some time, that defense will be very difficult to try on the facts.

But at least it's clear that such claims can be made. What about sex discrimination?

As far as I know, there is no case law squarely addressing whether exotic dancing clubs can discriminate on the basis of sex, but dicta in some court decisions treat the issue as a paradigmatic no-brainer. Consider the oft-cited decision in Wilson v. Southwest Airlines, 517 F.Supp. 292 (N.D. Tex. 1981), which torpedoed the flirty-attendants-in-hot-pants, Airline-That-Loves-You business model on which Southwest was built. There, the court held that sex appeal, and specifically female sex appeal, was not an essential part of the job of a flight attendant, despite being preferred by customers and being a key part of Southwest's particular business plan. By way of contrast, the court mused that:

in jobs where sex or vicarious sexual recreation is the primary service provided, e. g. a social escort or topless dancer, the job automatically calls for one sex exclusively; the employee's sex and the service provided are inseparable.

In support of this conclusion, it cited two unpublished 1971 cases of the New York Human Rights Appeals Board, which concerned age discrimination but stated in dicta, without explanation, that sex was a BFOQ for being a Playboy Bunny at the Playboy Club. This was evident because, according to the Wilson court, "female sexuality [is] reasonably necessary to perform the dominant purpose of the job which is forthrightly to titillate and entice male customers."

The distinction drawn between flight attendants and exotic dancers or Playboy Bunnies has always troubled me. A quick read of the Wilson facts makes clear that in a very significant sense Southwest Airlines was also selling "female sexuality" to its largely male clientele. But the Wilson court held that the essense of the flight attendant job lies in the attendant's "mechanical, non-sex-linked duties." Female sex appeal was simply "the manner of job performance, not the job performed."

Now, it would be mere sophistry to argue that an exotic dancer's duties are merely "mechanical," for indeed the essence of his or her job is not just dancing but sexual entertainment. Sexiness (of a sort) is certainly "the job" and not "the manner."

But is femaleness also an essential feature of the job? Consider that male and female exotic dancers, while typically working in separate clubs, perform essentially the same job. Clearly both men and women can (a) dance, (b) strip, and (c) be sexy. The only thing men cannot do is be sexy in the eyes of a straight male customer.

(This, of course, is a convenient overstatement. The success, indeed the mere existence, of the film 300 itself proves that ostensibly heterosexual males often derive enjoyment from blatant displays of the male body.)

The Wilson dictum, then, is founded on two basic assumptions: first, that exotic dance clubs by their nature must cater to heterosexual males (or alternatively, that the world contains two kinds of clubs -- gay and straight ones -- and the two are fundamentally distinct and irreconcilable); and second, that heterosexuality (or, in a few clubs, homosexuality) is far more than a mere customer preference and indeed defines sexual entertainment.

In other words, exotic dancing at its essence is pleasing straight men. Or, to the extent that there may be more than one audience out there that wants more than one thing, each audience wants only one thing, and each club can attract only one audience.

This is, of course, an accurate reflection of the industry as it exists today. With very few exceptions, clubs do not offer a mix of male and female dancers in the same venue. (The few that do specifically market themselves to straight women and men respectively; it is not just heterosexuality at work here, but homophobia, as straight male patrons are assumed to be repelled by the presence of gay male patrons.) Imagine the reaction in your average Crazy Horse Saloon or Diamond Men's Club if, between Amy the Blonde Princess and Cherise the Dark-Eyed Beauty a handsome man in a g-string appeared on stage.

But isn't that a quintessential example of customer preference at work? And what about the increasing number of female patrons at these clubs? And what about those few exceptional clubs that offer male and female dancers on separate stages? And might there not be some bisexual or bi-curious patrons, or potential patrons, of both sexes who would prefer a combination of male and female dancers? Sure, the tried-and-true all-girl approach might make more money, but that in itself does not a BFOQ make under Wilson.

To be sure, it's hard to imagine the male dancer who would want to work in an all-female club, or vice versa. A serious challenge to sex discrimination in exotic dancing would presumably lead to a downturn in business for clubs in the immediate short term, and a radical transformation of adult entertainment in the longer term. But would that be so bad? Might that not produce some benefits in terms of sex equality?

In reality, this issue may never be litigated, and if it is, courts are likely to hold fast to the assumptions implicit in Wilson. If nothing else, though, thinking about BFOQ in the context of exotic dancing can serve to illuminate both the rigid way we're in which we're used to thinking about sexuality, sexiness and gender; as well as the potentially hazy line-drawing inherent in the BFOQ doctrine.