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The Originalist Fundamental Rights and Liberties of Trans Americans [1]

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Date: 2023-10-04  

Now that the Republican Party’s crusade against Trans Americans is working its way through the nation’s judicial system a word or two about the tolerance of gender nonconformity in our nation’s legal and cultural heritage should be heard. Outraged that trans children want to play sports on teams or use bathrooms that align with their gender identity, or receive appropriate gender-affirming medical care, the Republican crusaders and their fervent supporters would strip trans children of their right to exist and the parents of trans children of the fundamental liberty to rear their children as they see fit in order to allegedly protect the rights of all children and all parents. Today’s indignant Republican ideologues insist that there are only two genders and trans people have no choice but to be bound by the gendered determination of their genitalia at birth; and, furthermore, they insist this was and always has been the norm enforced by law and custom until the dreaded agenda of transgenderism recently appeared. These zealots are clearly also intent on limiting or denying the rights of trans and other gender binary nonconformist adults. The persistent proclamations of Republicans that they revere our nation’s Founders and founding generations further deepens the insult. As usual, these so-called Originalists should pay closer attention to genuine history. The legal and cultural heritage our nation was founded upon and within which it developed had long recognized those whose gender varied from the routine binary of male and female.

People of variant genders have been among us from time immemorial. They are to be found in legal, literary and historical sources in every culture from Plato’s three sexes in classical antiquity and two-spirit individuals in many indigenous societies to the present day’s LGBTQIA2S+ communities. Following Plato’s template, Bracton — the 13th century treatise of English law beloved of Originalist Supreme Court Justices — categorized persons as “Male, Female, and Hermaphrodites.” As early as the era of Magna Carta, then, the existence of individuals of variant genders was legally recognized by the English common law. Such individuals were often given their choice of which gender to live as only constrained (or empowered) by the legal requirements, rights and obligations of that gender as recognized by common law. Determinations of which gender to assign ambiguously intersexed individuals were not restricted to observations made at birth. For example, permanent impotence could be the basis for later assigning female gender to an effeminate adult man. While this legal regime would seem to potentially exclude today’s non-binary or gender-queer individuals such was not necessarily always the case.

In Colonial America Thomasine/Thomas Hall is a paradigmatic example. Gendered a girl at birth in England circa 1603 and reared to be a proper lady, the adult Thomasine later followed her brother into soldiering in Europe as Thomas. Afterwards resuming their life in England as Thomasine, they subsequently resettled as Thomas in the Jamestown colony. After moving to the small Virginia village of Warrosquyoacke they were less than consistent or discreet about switching genders, or their bisexuality. Thoroughly annoyed by this behavior the villagers brought Thomasine/Thomas before the local Quarter Court to force them to choose a gender according to the law. The court, however, held that Hall’s ambiguous physiology and behavior proved they were both "a man and a woeman" and should therefore wear both male and female clothing consisting of “man's apparell, [with] only his head to bee attired in a coyfe and croscloth with an apron before him.” While the Quarter Court’s ruling could be viewed as either supporting or limiting Hall’s life — as either telling the local community to tolerate them or, more likely, empowering the villagers to mock and belittle them — it nonetheless clearly stands as an example that early American courts did not always treat gender as a simple matter of the binary of male and female, men and women.

At the time the English common law was being incorporated into our newly independent states and nation a French diplomat arrived at the English Court — the Chevalier d’Eon. Gendered a boy at birth, the Chevalier had become a soldier and diplomat. After joining the French embassy in England rumors began circulating that he was really a woman based upon reports of varying gendered attire and social behaviors observed during the Chevalier’s visits back to the French royal court. Gambling wagers were made and eventually brought to trial for resolution in 1777 whereupon Lord Chief Justice Mansfield held that the plaintiff had made his case that the Chevalier was a woman. From then on, the Chevalier lived openly as a woman according to the common law and insisted she had been born so. She continued living in England as something of a minor celebrity only to then die in poverty. Examined after her death in 1810 it was determined that she had “male organs” but also had remarkably rounded limbs and amply full breasts. The Chevalier d’Eon was clearly empowered by the English legal system to live her life as a woman regardless of the gendered ambiguity of her physiology. Although having one’s most intimate personal identity legally questioned and examined by the highest court of the land merely to settle a complete stranger’s gambling wager must undoubtably have been unsettling, from the surviving records of the trial to settle the wager before King’s Bench it would appear that the Chevalier was treated with the utmost respect and dignity by LCJ Mansfield.

The early history of English theatre also bears mentioning. For well over two centuries all female roles were played by male ‘actresses’. There were no female performers as women were legally barred from doing so; the very thought of girls and women performing on the stage was utterly scandalous. Many of these male actresses specialized in playing only female roles and had barely concealed intimate relationships with both men and women. The long history of castrati, the eunuchs of the medieval Catholic Church’s choirs and early opera should also not be forgotten. Deliberately castrated before puberty so their voices would never drop into the lower, gruff registers of grown men these singers were prized for their falsetto vocal ranges. At the height of their popularity in mid-18th century Europe well over 4,000 boys were turned into castrati every year with the tacit approval of religious and secular authorities. There has clearly been a wider sense of appropriate gender variances historically than the strict binary of male and female currently insisted upon by today’s birth determinist Republican ideologues.

As these examples illustrate it was not unusual to find such tolerance in early modern America, England, and Europe. This legal regime survived throughout the 19th century in America and can be found in leading medical jurisprudence treatises from the time which detail the wide variety of gender variant persons then legally classified as hermaphrodites. Today there are 40 known variations of intersexual physiology and 10 known different sex determinant chromosomal combinations; it is now indisputable that “variations in gender identity and expression are normal aspects of human diversity.” What was once considered merely a matter of ambiguity in external genitalia and secondary physiological sex characteristics is now understood to extend to internal chromosomal structures, hormonal and neurological functions, and brian chemistry and structure. Gender determination is clearly not a simple question easily settled by looking at a newborn infant’s genitalia. For intersex and trans individuals the determination of gender is far more complicated than an initial visual observation of external genitalia at birth.

Being trans is no more a lifestyle choice than being intersex or cisgender is. It is a neurophysiological reality that trans individuals have no choice but to do their best to live within. Yet, the gender binary ideologues of the Republican Party and their zealous and all too often violently menacing supporters insist on preserving the ability of parents of intersex children to use whatever medical means they deem necessary to permanently affix their children to the gender of their parents' choice while simultaneously criminalizing parents and medical providers of trans children from providing any gender affirming medical care whatsoever for their children. Exceptions in the majority of the recent bills banning gender-affirming care for trans children that expressly allow for surgical and hormonal therapies to ‘correct’ gender ambiguous intersex children thoroughly underscores this blatant discriminatory intent. Apparently intersex children need to be rescued from their ambiguous birth genitalia while trans children paradoxically need to be inextricably bound by their external birth genitalia. A clearer unconstitutional violation of parental rights to rear their children and children’s rights of expression, personal identity and autonomy is almost unimaginable. That is what’s truly at stake. This is not about conservative notions of Parental Rights, nor is it truly about protecting vulnerable children. Republicans are using legislative and regulatory powers in ways that restrict both the rights of parents to bring their children up as they see fit, and the rights of children to grow up, thrive and be valued as their own unique and authentic selves without fearing parental abuse or neglect, and free of unreasonable expectations that they behave and exist solely according to the beliefs, preferences, or whims of their parents or political and religious opponents.

Trans and intersex people have been an integral part of humanity for as long as our species has existed. Over humanity’s long history many cultures and societies have allowed them to live their lives free of shame or coercion. Being true to their distinctive genders does not constitute a deviant and deluded lifestyle choice rife with sexualized pedophiliac predation, nor is it a sinister demonic political agenda bent on making everyone trans. They are just people trying to go about their lives as best they can like everyone else. Following the Originalist analytical criteria found in the recent abortion and gun rights cases of Dobbs and Bruen, the rights of Trans Americans to exist freely and without fear as their authentic selves can be traced back to the time of Magna Carta through the 1800s and should therefore be constitutionally protected as fundamental liberties under the due process clauses of the 5th and 14th Amendments, the equal protection clause of the 14th Amendment, and the 9th Amendment. However, the anachronistic history of colonial, Founding era, and 19th century America is rarely, if ever, the true source of the judicial holdings of Originalist jurisprudence. Sadly, given the current makeup of the Supreme Court the rights of trans Americans to simply live their lives as they see fit are genuinely at risk. Which is both ironic and hypocritical. Those same fundamental rights to freedom of expression, privacy, and individual autonomy are loudly demanded for themselves by the very same Republican demagogues whipping up their virulently vocal supporters’ indignation and fervor against their fellow citizens — Trans Americans.

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[1] Url: https://www.dailykos.com/stories/2023/10/4/2197320/-The-Originalist-Fundamental-Rights-and-Liberties-of-Trans-Americans?pm_campaign=front_page&pm_source=more_community&pm_medium=web

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