Gender, "deception" and the law, pt. 3

This is the third post in a series inspired by the Angie Zapata murder trial in Colorado, and in particularly by the suggestion by some people that transgender people who are victims of hate crimes by sexual partners were themselves guilty of "deception." In the first post, I sketched out the traditional narrow legal interpretation of the kind of deception that can vitiate sexual consent. In the second post, I explored possible extensions of this concept and argued against them. This post specifically considers the question of disclosure by transgender people of their sexual anatomy and/or gender history to sexual partners.

Actual gender "deception" cases. A recent article by an Israeli law professor identified five cases internationally in which transgender individuals have been prosecuted for failing to disclose their gender history to sexual partners: two cases in the U.S., one in the U.K., and two in Israel. See Aeyal Gross, Gender Outlaws Before the Law: The Courts of the Borderland, 32 Harvard Journal of Law & Gender 165 (2009).

• In the United Kingdom in 1991, Jimmy Saunders was charged with indecent assault on the basis that he concealed the fact that he was born female from two sexual partners. He was convicted, though the Court of Appeals reduced his sentence.
  
• In Colorado in 1995 - the same state where the Zapata murder took place - Sean O'Neill was charged with false impersonation and sexual assault on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to lesser charges.
• In 1997 in Washington state, Christopher Wheatley was charged with sexual assault on the basis that he concealed the fact that he was born female from two sexual partners. He plead guilty.
• In Haifa, Israel in 2003, Hen Alkobi was charged with sexual assault and "impersonation of another person" on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to the sexual assault charge, contested the impersonation charge, and was convicted on both charges.
• In 2007, another transgender man in Israel was charged with statutory rape as well as "indecedent acts" on the basis that he fraudulently obtained consent from a sexual partner by concealing the fact that he was born female. (My only source for this case is Gross, who does not give a name and says the case was ongoing as of early this year.)

I would be very interested to find out more about these cases than is available in readily-accessible, English-language sources, particularly the U.K. and recent Israeli cases.

Notably, all of these cases involved male-identified transgender persons who had sexual relationships with underage women (and in all but one case, with multiple underage partners). It thus appears that it is peculiarly trans men who partner with women who are in danger of being prosecuted for dating without disclosing (whereas women who partner with men are in more danger of being killed by their partners). Additionally, each of these cases apparently could have been prosecuted solely on charges of statutory rape. Thus, these are not cases of individuals being singled out for prosecution based on failure to disclose, but rather cases that would have been prosecuted regardless based on the involvement of minors - though it is clear that prosecutors and/or judges in these cases did have particular reactions of disgust to these gender-variant defendants, and to their involvement of seemingly unwitting young women in what these authorities no doubt regarded as homosexuality.

As far as I can tell, in only one of these cases -- the U.K. case -- did a court rule that failure to disclose one's anatomy or gender history vitiates consent and creates liability for sexual assault. In the other cases, it appears the defendants simply decided to strike a deal, which made sense given that they were probably liable for statutory rape regardless. The latter cases provide no support for the legal theory that these circumstances negate consent. Even in the Saunders case, it's not clear from secondary sources to what extent this aspect of the prosecution was challenged, or even if the assault convictions themselves (rather than just the sentence) were appealed.

U.K. law today. In 2000, the Law Commission of the United Kingdom specifically recommended that the U.K. Sex Offences Act not be interpreted to treat a failure to disclose transgender status as deception that vitiates consent. The Commission reasoned that this would amount to "the creation of a special rule for transsexuals," and accordingly would likely violate the European Convention on Human Rights, which prohibits discrimination against trans people and guarantees the right to expression and recognition of a person's gender identity. (While the Commission stated this recommendation only in terms of individuals who had undergone sex reassignment surgery, it would probably take a different view now that, under the Gender Recognition Act, the U.K. permits change of legal gender in the absence of surgery.)

Regardless, in 2003 the U.K. revised its sexual offenses law, and narrowed the language concerning deception. Following the traditional approach of American courts, the current language covers only situations of deception about "the nature or purpose of the relevant act" or "impersonating a person known personally to the complainant." Thus, regardless of the Saunders case, it appears that UK law today would not treat failure to disclose anatomy or gender history as rape or indecent assault.

Trans people are not liars. Consider why a transgender person would hesitate disclose their sexual anatomy or gender history to an actual or potential sexual partner. Trans people are not sexual predators looking for unsuspecting victims. They live in a society where their gender identity and expression are not accepted as authentic by many, perhaps most people around them - indeed, where that identity and expression are viewed as mere pretense. They live in a society where fear and loathing of gender variance and homosexuality are intense. These fears are linked by failure to understand or accept trans identities, and manifest most strongly as fears of sexual pollution. These facts are particularly salient for trans people who are young, are just beginning or have recently made a gender transition, and who live in rural or socially conservative areas. Add to this the psychic distress, embarassment and extreme shyness many trans people experience regarding aspects of their sexual anatomy and gender history. Being rejected by a partner who does not accept their gender identity is a painful prospect - as is seeking out partners who will desire them precisely because of not accepting their gender identity.

Given this context, disclosure to potential partners is fraught on all sides for many trans people. The partner who will both accept their identity and still desire them will be rare - depending on geography and other factors, perhaps very rare. At the same time, by not disclosing they are not lying: they are simply living their lives and presenting their authentic gender, as they do in other social relationships. And once an interpersonal connection exists, the prospect of coming out can be frightening, and appear very much easier to postpone or avoid.

Trans people are no more liars when they do not disclose these matters to potential partners than they are liars by simply living their lives. This is who they are. Of course, in a long-term relationship, tiptoeing around the personal details will be difficult and probably unhealthy for the relationship. For this reason, and in response to very real fears of violence, trans people usually do disclose to sexual partners, especially when looking for a lasting romantic relationship. While I have little sympathey for other people's anxieties about being sexually polluted by a sexual partner with the "wrong" body parts, it's never desirable to risk distress to others. But I find it difficult to judge morally, and repulsive to punish criminally, the choice of some individuals, particularly in casual encounters or at the beginning of a relationship, not to come out.

Australian commission releases amazing report on gender diversity

As I documented in my article "Against the Surgical Requirement for Change of Legal Sex," Australia has in some respects been a global leader on transgender rights. A 2001 Australian Family Court decision is one of the leading cases on legal recognition of gender transition. In 2004, that court favored access to puberty-delaying hormone treatment for trans adolescents, and called into question the wisdom of requiring reassignment surgery as a prerequisite for legal recognition.

Yet in some ways Australian law is still strict when it comes to gender. Throughout the country, changing your sex on government documents is only possible if you are unmarried and have had reassignment surgery. Now the Australian Human Rights Commission has released a fantastic report entitled Sex Files: The legal recognition of sex in documents and government records. The Commission consulted with trans advocates and individuals through meetings, written submissions and a special blog. It arrived at the following recommendations:

1. Access to the system for having sex legally recognised to accord with sex
identity should be broadened. Specifically,

• marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex

• the definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex

• the evidentiary requirements for the legal recognition of sex should be relaxed by reducing the quantity of medical evidence required and making greater allowance for people to self-identify their sex
• the special needs of children and young people who wish to amend their documents and records should be considered

• a person over the age of 18 years should be able to choose to have an unspecified sex noted on documents and records.
  

2. The process for amending documents and records to legally recognise sex
identity should be streamlined and user-friendly. Specifically,

• information on the process and criteria for the legal recognition of sex should be easily accessible and user-friendly

• documents of identity and processes required for the legal recognition of sex should not reveal personal information about a person’s past identity in relation to sex

• laws and processes for the legal recognition of sex should use empowering terminology

• where possible, sex or gender should be removed from government forms and documents
• the federal government should consider the development of national guidelines concerning the collection of sex and gender information from individuals.

• 
  

The report correctly notes that eliminating the surgical and marital-status restrictions would simply reflect the reality of people's daily lives. Notably, the Commission is agnostic on whether this would conflict with the current ban on same-sex marriage in Australia, but points out that it would only affect a small number of people who regardless are already legally married and living as same-sex couples as far as they and the general public are concerned.

Perhaps even more remarkable is the reccomendation that individuals be able to have their sex listed as unspecified. Australia is already the first nation to permit an X in lieu of an M or F on passports, but currently this is only for intersex individuals. Under the Commission's proposal, this would be a matter of individual choice, without the need for medical or other evidence.

I have no sense of whether the current Labor government in Australia is likely to implement any of these recommendations, but the report itself is a remarkable accomplishment.

H/t Questioning Transphobia

Roundup

This week in Washington:
- Obama reverses Bush's ban on federal funding for embryonic stem cell research
- A provision of the just-passed budget bill will help make contraception more affordable for many
- Today the White House launches a Women & Girls' Council, which hopefully will be more than symbolic

In Saudi Arabia, a 75-year-old widow has been sentenced to four months in prison, forty lashes, and deportation for having two unrelated men in her home. The two men -- one of whom is her deceased husband's nephew, and both of whom have also been sentenced -- were apparently bringing her some bread. Her lawyer plans to appeal. More at Religion Clause.

On a much less weighty note, a law professor at the University of Montana complains that the student newspaper's sex advice column "affects my reputation as a member of the faculty" -- no, really --and has suggested the state legislature should tighten restrictions on student publishing. According to the paper in question, the prof complained that legislators should set "criteria for giving someone a job as a columnist writing in an area of 'alleged expertise' or for reviewing objectionable material." Being a law prof, she's come up with proposed restrictions that just pass the First Amendment red-face test, but something tells me this isn't going anywhere. Are authors in student papers really expected to be experts? And what standards should the legislature set to qualify as a sex columnist?

Finally, Cook County, Ill. Sheriff Tom Dart is suing Craigslist, claiming its "erotic services" ads are a public nuisance. Sex worker rights advocates have, naturally, criticized the suit, which probably amounts to little more than a publicity stunt. Craigslist says it's "mystified" by the suit, pointing to its cooperation with law enforcement in Illinois and elsewhere to minimize use of the site to violate the law. One Internet law expert has opined that the lawsuit can't stand, because under federal law Craigslist can't be held liable for users who seek to violate the law unless it actively helps them do so. (Said lawyer also wonders whether there are actually many "erotic services" posts on Craigslist that are only advertising legal services, but a quick search of the many postings specifying "no sex" suggests that yes, there are; most of them are for pro-Dommes.)

Another sign of change in Argentina

This one has been making the blog rounds and is not law-related, but I just couldn't resist. I recently noted that Argentina is lifting its ban on out gay and lesbian members in the military, as is the Philippines. Here's another sign that Argentina, like Latin America generally, is seeing leaps and bounds of progress in LGBT activism and acceptance. There's a long way to go for trans people in Argentina and neighboring countries, but it's a pretty big deal when a bank uses a message of trans acceptance to advertise itself:



I can't imagine any financial institution in the U.S. doing a similar ad. In fact, I can't really imagine any major corporation selling itself with this kind of message of inclusion. Not only that, this ad is a thousand times better than most depictions of trans people in the media anywhere. Instead of treating a trans person like a spectacle or a joke, and making the fact of her gender history a laugh line or a dramatic reveal, here we see it treating in a matter-of-fact, unsensational way. Indeed, the story isn't that this woman is trans, but that her neighbor is sorry for making it a big deal. Depicting a trans woman as an apparently successful business owner is just icing. Yes, as one blogger put it, Banco Provincial is "Pro-Transgendered People, Pro-Little Old Men."

If only getting a loan made people rethink their prejudices in real life!

Roundup

Via Bilerico, Argentina is ending its ban on gay and lesbian folks serving openly in the military. If they can do it, we can do it.

A new study shows "red" states lead in online porn subscriptions. This strikes me as raising interesting questions about "local community standards" in obscenity cases. (Indeed, I recall that at least one defendant has recently tried to use data on risque Google searches to establish the relevant standard.)

Gay & Lesbian Advocates and Defenders (GLAD) has filed a challenge to the federal Defense of Marriage Act on behalf of married Massachusetts couples seeking marriage-related federal benefits. This seems to mark a shift in strategy from the LGBT legal movement, which heretofore has tried to keep suits regarding marriage and DOMA out of the federal courts for fear of a) setting bad precedent without first building a firmer foundation in state courts and in non-marriage cases, and b) reviving the proposed Federal Marriage Amendment. I'd guess that (b) is now seen as much less of a concern, and (a) is seen as a manageable concern if cases are brought and framed selectively. Here, no state would be forced to accept the plaintiffs' marriage; rather, they are seeking federal recognition of a state-recognized marriage for the purpose of specific tax, Social Security and other benefits. Balkinization has a preliminary assessment of the case.

Finally, Senate Republicans are apparently trying to use the current Omnibus Appropriations bill to eliminate federal Title X funds for Planned Parenthood clinics across the country. An amendment will be introduced today, so folks should call their Senators forthwith.

Miscellaneous updates: LGBT equality abroad

hunter of justice says there's "a bona fide trend underway" - not just of lgbt rights activism and advances in Latin America, but of North American attention to those struggles, which have been underway for years now.

TransGriot has recently posted about efforts and advances for transgender equality in Korea, China and the Middle East.

Bilerico bloggers note that the U.S. has made an about-face on a United Nations resolution condemning sexual orientation discrimination, and that gay-affirming speeches at the Oscars were censored in international broadcasts.

Time for a new approach to human trafficking

Melissa Ditmore and Andrea Ritchie of the Urban Justice Center's Sex Workers Project have a great new post up at RH Reality Check. The post is based on the Project's new report: "Kicking Down the Door: The Use of Raids to Fight To Fight Trafficking in Persons":

We found that while there have been some successes, raids are generally an ineffective anti-trafficking tool, and in many cases are harmful to people who have been trafficked. Trafficked women reported that they were repeatedly arrested, in some cases up to ten times, in police raids on brothels and other sex work venues, without ever being identified as trafficked. ...

The Obama administration has the opportunity to reassess this failed federal approach to human trafficking. The recent passage of federal anti-trafficking legislation championed by Vice President Joe Biden offers a fresh start - and a chance to avoid repeating the mistakes of the past.

A good first step would be to move away from high-profile, resource-intensive and largely ineffective raids and to address the economic and social circumstances that increase vulnerability to trafficking....Expansion and targeted enforcement of labor laws in [sectors where trafficking flourishes] would not only go a long way toward locating, identifying and assisting trafficked persons, it would also protect the rights of all workers.

For the long term, strategies led by individuals and communities with knowledge of and access to trafficked people are far more likely than raids to meet with success....

Trafficking victims by definition have sought opportunity in the United States only to find themselves in coercive and abusive situations. We owe it to them to find better ways to locate, identify and assist them, and to develop anti-trafficking initiatives that prioritize their needs, choices, and self-determination as human beings. A good way to start would be to extend a helping hand that is not also holding a gun.

As I've noted in this blog before, the Sex Workers Project is doing some truly outstanding advocacy.

Another step the Obama administration could take would be to re-examine the equation of prostitution with trafficking under various provisions of federal law, including in restrictions on international aid. Some of these policies make providing life-saving services to sex workers more difficult, and distract from the serious problem of human trafficking.

Miscellaneous updates: civil rights at home and abroad

Maybe you've heard about the Maryland State Police spying scandal. Basically, in 2005-06 the state police were spying on a number of peace, anti-death penalty and other progressive grassroots groups in the state, on the pretense that they were a security threat. Turns out that among those groups was Equality Maryland - yes, a bunch of LGBT lobbyists in suits were deemed a security threat.

And speaking of witchhunty goings-on, remember U.S. Attorney Leslie Hagen, who was fired from the Bush Justice Department for being a lesbian? Well, the DOJ has finally filled her position by hiring -- Leslie Hagen. How's that for change?

Colombia's highest court has held that the South American nation must provide government benefits to same-sex couples on the same footing as heterosexual married couples. No translation of the opinion is as yet available, but hunter of justice excerpts a statement on the ruling from Colombia's leading LGBT rights group. Leonard Link - which always has excellent coverage of LGBT and HIV issues in immigration and asylum law - has a thoughtful discussion of the ramifications of this decision for asylum seekers. The issue is an interesting one because, like South Africa, Colombia has seen robust recognition of constitutional rights for sexual and gender minorities, and at the same time continues to see persistent, widespread homophobic violence. Meanwhile, Constitutional Law Prof blog notes that this is not the trailblazing decision from this court on matters of gender and sexuality; in the 1990s the court rendered a series of decisions placing limits on genital reconstruction surgeries for children born with ambiguous genitalia.
[Yes, Colombia was initially misspelled as "Columbia." You would, of course, expect this sort of thing from Columbia.]

Meanwhile, Bolivian voters have endorsed a new constitution. The new document is most notable for seeking to give more rights to indigenous people, and for allowing President Evo Morales to run for another term. But it's also notable that unlike the former constitution, the new one does not contain bans on abortion or same-sex marriage - absences which angered some Catholics. Indeed, the new constitution apparently bans discrimination on the basis of sexual orientation, which some think could lead to rulings in favor of marriage equality. This looks like another case of LGB civil rights benefiting from broader political changes led by a coalition that happens to favor equality, even though there is far from a broad national consensus on equality issues.

Icelanders get cold comfort in a world first

Well at least something good has come of the economic meltdown and consequent political shake-up in Iceland: the world's first (out) lesbian head of state. Johanna Sigurdardottir will be the nation's interim prime minister, following this week's collapse of the government there (though her term will likely be shortlived). For the sake of her country's troubled economy as much as for the milestone she sets, we should all wish her the best of luck.

Starting this week, viewing porn a crime in UK

I blogged in May about the UK's newly adopted law criminalizing the possession of so-called "extreme pornography." On Monday the law went into effect. You can now be sentenced to up to three years imprisonment in the United Kingdom for viewing, on your home computer, an ill-defined category of images that includes depictions of consensual adult sadomasochism. Small consolation: law enforcement say they aren't going to go out of their way to enforce the law.

As I noted before, the law relies heavily on a decade-old British court ruling that permitted consensual sadomasochism to be charged as assault. That ruling was upheld by the European Court of Human Rights, but it was based on sensational and distorted facts and has been unevenly applied in subsequent cases. The new law raises once again the scope and validity of that ruling, as well as serious concerns about free expression. No word yet about a legal challenge to the law, but it can be expected to eventually reach the British courts, and ultimately the European Court.

Miscellaneous updates

The Pittsburgh Post-Gazette reports on the upcoming trial in U.S. v. Extreme Associates, with the headline: "Obscenity case begs question: Whose standard? Extreme Associates trial may be catalyst for change." (H/t How Appealing.)

Womanist Musings discusses the invisibility of Black LGBT people and looks at some relevant data. Notably, the post points to one survey showing that among Black LGBT folks, relationship recognition ranks third as a movement priority, after tackling HIV/AIDS and hate violence. (H/t Feministing.)

hunter of justice decries the lack of any openly LGBT federal judges at the appellate level, and reports on a gay British judge's revelation that he was subjected to veritable witch hunt when he first sought appointment in 1994.

Greta Christina asks why, under the First Amendment, we treat sex differently from, well, everything else.

Sex in the Public Square notes that Sweden's National Board of Health & Welfare has eliminated the classification of gender variance, BDSM and sexual fetishes and psychological disorders. Sweden is also set to allow same-sex couples to marry come Spring. So I'll forgive the Swedes, for the moment, their flawed approach to reforming prostitution laws.

Some gender and sexuality firsts

Last week Jared Polis was sworn is as the third out member of Congress, and the first to come out before being elected to his first term (unlike Reps. Tammy Baldwin and Barney Frank, who came out as incumbents). He will sit on the House Education and Labor committee.

Since the House also swore in its first female speaker for her second term, it's nice to see that they're finally made their own written rules gender-neutral. On a more substantive note, they quickly got down to business and passed the Lily Ledbetter Fair Pay Act, which now goes to the Senate.

Across the pond, South Africa's president has appointed Justice Edwin Cameron to that country's Constitutional Court, making him the first openly gay jurist on any nation's highest court. (The U.S. might see its own first out Supreme Court Justice if Obama were to appoint Stanford law professor and perennial shortlister Kathleen Sullivan.)

[This post was supposed to happen before now, but Blogger and I did not see eye to eye about it.]

International Day to End Violence Against Sex Workers

Yesterday was the International Day to End Violence Against Sex Workers, an annual event involving grassroots vigils, marches and other events in North America, Europe, Australia and Hong Kong. As part of the December 17 activities, I joined the first National March for Sex Workers Rights. It was a modest affair, but one that brought new visibility to the (inextricably intertwined) causes of ending violence against sex workers and decriminalizing prostitution. You can see my coat and my right hand in a photo in the Washington Post's coverage, holding a banner that reads "OUTLAW POVERTY NOT PROSTITUTION."


In addition to marching through the streets and in front of the Department of Justice, the marchers delivered a letter to President-Elect Obama, calling for actions to stem violence against sex workers, and especially for involving sex workers themselves in policymaking.

Much more media coverage and video from the DC march is at Bound, Not Gagged - the blog of the Desiree Alliance.

More on December 17 and sex worker rights from around the blogosphere:

Stopping the Terror: A Day To End Violence Against Prostitutes

Audacia Ray's Speech from the NYC Vigil

Remembering violence against sex workers

International Day to End Violence Against Sex Workers in the United Kingdom

In this spirit, I urge readers to contribute to the Sex Workers Project of the Urban Justice Center, which provides legal and social services for sex workers in New York City, and advocates for sex worker rights.

Australian court convicts for virtual child porn

An appellate judge in New South Wales, Australia has apparently ruled that it was proper to charge a man with possessing child pornography on the basis of cartoon drawings of characters from The Simpsons engaged in sexual acts. You can read excerpts from the decision at the Media Law Prof Blog. It is densely written opinion, apparently based entirely on statutory interpretation.

Australia's constitution does not contain an express freedom of speech, and the courts there have apparently recognize a much narrower right to political speech than is enforce in the United States. Here in the United States, the Supreme Court has previously held unconstitutional the application of child pornography laws to "virtual" depictions of minors.

The NSW judge relied in part on a rationale the U.S. high court expressly rejected: that cartoon depictions of children help perpetuate a market for actual child pornograhy. He also suggested that this holding was necessary to prevent the harmful use of drawings, etc. to depict actual, individual minors engaged in sex.

The judge held that whether a drawing or other representation of a minor falls within the law depends on the facts of the case, and in particular the degree to which the depiction is clearly meant to represent a human child or teenager:

Merely to give human characteristics to, say, a rabbit, a duck or a flower, to use some other familiar images, would not suffice if it were fair to say that the subject of the depiction remained a rabbit, a duck or a flower. A stick figure could not, I think, depict a person.... No bright line of inclusion or exclusion can be sensibly described. ...Accordingly, if it were reasonably possible that the depiction is not that of a person, the offence is not proved. It follows that a fictional cartoon character, even one which departs from recognizable human forms in some significant respects [as the Simpsons characters do], may nevertheless be the depiction of a person within the meaning of the Act.

Bestselling fantasy author Neil Gaiman says the ruling is "nonsensical in every way that it could possibly be nonsensical," and has some choice words to say about the harmful implications of such a view of the law - including that Australians could now conceivably be locked up for owning his longtime friend Alan Moore & Melinda Gebbie's acclaimed book Lost Girls. Gaiman suggests this is a good occasion to contribute to the Comic Book Legal Defense Fund.

A Question You'll Never See on the US Census

The UK Telegraph reports that:

People answering questionnaires about their employment status, their living costs and how much they drink or smoke will also be asked whether they are heterosexual, homosexual or bisexual. The enigmatic category "other" is also being included to cater for the "very small" number of people who say they do not fit into the first three groups. Future studies could also ask Britons if they have had sex swaps or are "undergoing the process of gender reassignment".

The Office for National Statistics, the organisation that collates data for use by Government, says the new questions are essential to meet equality laws and to find out if people from minority groups are discriminated against.

The question will be part of ONS's frequent population and economic surveys. No word yet on whether such questions will be used in the 2011 UK census, though the matter has been debated. Like the 2000 US census, the 2001 UK census gave only a limited picture of the LGB population, via numbers of same-sex couple households.

The Netherlands: Forced contraception for "unfit" women?

A draft bill in the Dutch parliament is causing a stir among disability activists and others: it would force women judged "unfit" to take contraception or face having any children they have taken away by the state. Notably, the English-language press coverage doesn't indicate the likelihood that this legislation will actually pass.

It's not clear whether there is any other consequence in addition to the immediate taking of any child for foster care. Women in this country who have been judged unfit to parent their previous children already face a high risk of having any additional children they have taken away - though the process is generally not automatic, as it appears would be the case under the Dutch bill.

In any case, the bill would still be an undue infringement on reproductive freedom. To the extent Europe's human rights courts agree, I would think it could be struck down - if it is ever passed - as a violation of the fundamental right to privacy in the European Charter.


H/t Feministing.

Interesting article on gender variance in Iran

A recent article from Cheraq -- the journal of the Iranian Queer Railroad (IRQR), formerly known as the Iranian Queer Organization -- features a detailed and quite interesting discussion of the surprising acceptance of gender transition in Iran. The author argues that while the acceptance of transsexualism by leading Iranian clerics has been lifesaving for many, the conflation of gender and sexuality in the prevailing Iranian theology has harmful implications for both trans and gay people living under Islamic rule:

Today, there is a certain celebratory tone about recognition of transsexuality and permissibility of sex-change perations within the Islamic Republic of Iran. ...Yet, behind these apparently progressive stories of gender recognition lies an emerging disturbing discourse on gender and sexual disorders and pathologies....
...This collapsing of gender and sexuality has distinct implications for transpersons and homosexuals. Transpersons are perceived of as being “homosexual” and are demonized and punished as such when in reality many of them might not even identify as homosexual; in turn homosexuals are tacitly pressured to seek hormonal and surgical sex/gender transformation when in reality many of them might not be genuinely transsexual.

I can't help noting that my own student Note -- Against the Surgical Requirement for Change of Legal Sex -- is cited repeatedly.

Mexico Supreme Court: constitution does not ban abortion

In a sort of obverse Roe v. Wade, the Supreme Court of Mexico last Thursday ruled 8-3 that Mexico City did not violate the Mexican Constitution by permitting abortions. Mexico City broke with the rest of the nation and most of Latin America last year when it legalized abortion in the first trimester.

As I understand it from press reports, the federal government challenged the law on two grounds: first, that Mexican cities lack the power to pass health laws (the court rejected this argument 10-1) and second, that the Constitution requires the criminalization of abortion in order to protect the right to life. This right is situated in a clause similar to our Due Process Clause - individuals shall not be deprived of life, liberty, etc. The court rejected this argument, apparently concluding that the constitutional right to life does not extend to fetuses. According to Justice Guillermo Ortiz:

"It's not up to the Supreme Court to legalize or criminalize abortion."

One protester's take on the decision was revealing:

"They are just encouraging women to be dirty and loose."

Undoubtedly there will be much more debate, legislation and litigation on abortion in Mexico in years to come, but the high court's decision at least resolves one major issue: limits on abortion are not required by the constitution. Presumably social conservatives in Mexico will now be arguing for a constitutional amendment impose criminalization nationwide, similar to the one called for in this year's (and previous years') GOP platform (PDF).

Marriage equality: Norway is Number Six

The Norwegien parliament today adopted a law granted same-sex couples the right to marry. Dale Carpenter at the Volokh Conspiracy provides the details. In essence, same sex couples can now:

• Marry (until now they could have registered partnerships)
• Have their registered partnerships "upgraded" to marriage
• If they wish, retain their registered partnership
  
• Adopt as a couple
• Access assisted reproductive technologies
  

San Francisco redux on a Greek isle?

The mayor of the Greek island of Tilos has performed civil marriage ceremonies for a lesbian (but not, apparently, Lesbian) couple and a male couple, despite a senior prosecutor's warnings that he did so in violation of Greek law. The mayor was not exactly pulling a Gavin Newsom; unlike California in 2004, Greece has no specific ban on marrying people of the same sex.

The press is calling these"the first same-sex marriages in the country." Well, certainly the first in several centuries.