By: Sebastian Arroyo Ignacio*
The right to identify our own existence lies at the heart of one’s humanity.
—District Court Judge, Carmen Consuelo Cerezo1
Thirteen years have passed since the Supreme Court of Puerto Rico, in Ex parte Delgado, prohibited transgender people born in Puerto Rico from correcting the gender marker on their birth certificates in accordance with their true gender identity.2 The decision was based on the historical and statistical importance of the birth certificate. This ban is no longer valid. On March 28, 2018 in Arroyo v. Rosselló, the United States District Court Judge for the District of Puerto Rico, Carmen Consuelo Cerezo, struck down this policy and ordered Commonwealth officials to allow such corrections. A brief overview of this case provides a great opportunity to revisit some ideas on traditional gender ideology and how it permeates and reproduces through —and with assistance from— the juridical and medical discourse, while simultaneously exploring the limits of the judicial discourse and its simplifying and reductionist effects in dealing with controversy.
I. Contextualizing Sex and Gender
Sex and gender, although used interchangeably by many, are not the same. The sex-and-gender distinction finds its origins on the work of American psychiatrist Robert Stoller, who studied various cases of children which were assigned a sex not in accordance with their genetical, anatomical, or hormonal sex.3 Although the concept has been attributed to Stoller, neither the works on gender of hundreds of feminists nor the role of gender in the fight against the subordination of women can be overlooked.
One of the most famous cases studied by Stoller is that of two twin brothers, one of which got his penis amputated by accident while being performed a circumcision surgery.4 Due to the accident, the doctor and the kid’s family found it preferable to socialize him as a girl, rather than let him grow as a boy without a penis. This case, and others, suggest that the determining factor of someone’s sexual identity is not the biological sex, rather, the act of being socialized as one sex or another.5 Somewhere in this distinction lies the difference between sex and gender. Hence, for the purpose of this Article, sex can be understood as “[t]he system of sexual classification based on biological and physical differences, such as primary and secondary sexual characteristics, which create the categories of male and female.”6 While gender may be understood as “[a]system of sexual classification based on the social construction of the categories of men and boys and women and girls and usually refers to a person’s masculinity or femininity.”7
II. Arroyo v. Rosselló
A. Plaintiffs Complaint
On April 2017, on behalf of Daniela Arroyo González, Victoria Rodríguez Roldán, J.G. and Puerto Rico Para Tod@s, Lambda Legal filed a lawsuit against the Governor of Puerto Rico Ricardo Rosselló and other government officials challenging the ban on correcting the gender marker on the Puerto Rico birth certificate.8 Whereas plaintiffs refer to a gender marker, the Demographic Registry birth certificate template category refers only to sex. Are they both talking about the same thing? This apparent conceptual misunderstanding will be discussed later in this Article.
The plaintiffs wished to correct their respective Puerto Rico birth certificates to accurately reflect who they are, consistent with their gender identities as transgender persons. A transgender is “a person whose gender identity does not match her or his assigned gender (gender assignment is usually based on biological physical sex).”9 Plaintiffs further wished to have such corrections reflected by the issuance of new birth certificates, and specifically not by amendment with a strike-out line through the information on their original birth certificates, as suggested in Ex parte Delgado. Complainants argued that the policy and practice related to the correction of gender markers on birth certificates, based on the Vital Statistics Registry Act,10 violated constitutional rights such as the equal protection of the law granted by the Fourteenth Amendment; the fundamental rights to privacy, individual dignity, liberty, and autonomy granted by the Fourteenth Amendment, and the right to freedom of speech under the First Amendment. The defendants’ administration and enforcement of Puerto Rico’s Birth Certificate Policy has resulted in impermissible discrimination against the plaintiffs on the basis of their sex and transgender status; has prohibited an entire class of people from exercising their fundamental rights to informational and decisional privacy; has infringed upon their fundamental rights to individual dignity, liberty and autonomy, and impermissibly compelled transgender persons, including plaintiffs, to publicly identify themselves with a sex inconsistent with who they are.
B. Procedural Overview
The Government of Puerto Rico moved to dismiss the suit on June 12, 2017. Lambda Legal, on June 26, 2017, opposed the motion to dismiss and filed a motion for summary judgement urging the federal court to strike down Puerto Rico’s policy denying transgender people accurate birth certificates. On August 29, 2017, the District Court denied the motion to dismiss. On March 28, 2018 judge Carmen Consuelo Cerezo signed an order which was later published on April 3, 2018 granting the plaintiffs motion.11 The Opinion and Order of this case was filed on April 20, 2018.12 On that Opinion the District Judge stated the facts and conclusions of law for the case at hand. Rather than crafting her arguments around gender equity and the right to choose and perform one’s own gender —by stating that the Vital Statistics Registry Act is discriminatory on a basis of sex and gender against transgender people, gender non-conforming and non-binary people— the Judge argued that the Commonwealth’s ban on changing the gender marker in plaintiffs’ births certificates violates their constitutional right to privacy. In what sense was their constitutional right to privacy breached?
C. Decisional Privacy and Informational Privacy
The Court explained in its Opinion and Order that there are two clusters of personal privacy rights: decisional privacy, and informational privacy. The decisional privacy right consists in “ensuring autonomy in making certain kinds of significant personal decisions.”13 On the other hand, the informational privacy right involves “ensuring confidentiality of personal matters.”14 Judge Cerezo’s decision stated that the Commonwealth’s ban implicates both clusters of personal privacy rights. By not allowing the change of the gender marker on the birth certificate, the plaintiffs would be forced to disclose their transgender status whenever they provide their birth certificates for official purposes —when applying for a job, health insurance, food stamps, student or private loans, among other public and private services— thus violating their constitutional right to decisional privacy. Meanwhile, the Court held that “by permitting plaintiffs to change the name on their birth certificate, while prohibiting the change to their gender markers, the Commonwealth forces them to disclose their transgender status in violation of their constitutional right to informational privacy.”15 These violations are not justified by any legitimate government interest, for that, the ban was declared unconstitutional.
D. Court’s Order and the Request to Change Transgender Persons’ Gender Marker Form
Following the Court’s decision, the Demographic Registry was ordered to allow transgender individuals to change the gender marker in their birth certificates, not by a strike-out line, but by the issuing of new birth certificates. And so, the Demographic Registry and Vital Statistics of the Department of Health of Puerto Rico was commanded to adopt the same criteria used by the Department of Transportation and Public Work’s Request to Change Transgender Persons’ Gender Marker form, as the application form to be submitted as a first step towards the issuance of these new birth certificates. This form must be accompanied by one of the following documents:
- A passport that reflects a person’s true gender, whether female or male;16
- A driver’s license that reflects the person’s true gender, whether female or male,17 or
- A certification issued by a healthcare professional or mental health professional with whom the person has a doctor-patient relationship stating, based on his or her professional opinion, the true gender identity of the applicant, whether female or male, and that it is expected that this will continue to be the gender with which the applicant will identify him or herself in the future.18
III. Plaintiffs and Limits of the Juridical Discourse
Although this decision represents a great triumph for gender equity for the transgender community in Puerto Rico, we have a responsibility to critically analyze the rationale behind our jurisprudence. Meaning not only the decision’s practical effects, but also the arguments used to justify that decision. First, it is important to think about the plaintiffs of this case: two transgender women and one transgender man who underwent some kind of medical transition to align their body characteristics to their true self. Are the only transgenders covered by this decision those that underwent medical intervention? Would the Judge have decided the same way if some of the plaintiffs were transgender people with no intent to get medical or hormonal treatment? What about intersex, androgynous, gender non-conforming or non-binary people, are they transgender according to this decision?19 Would they be able to change or eliminate their gender marker in their birth certificate? Does this decision allow the State to emit birth certificates without any gender marker?20 We should not be surprised to know that most of these questions were not even considered in the case at hand. Because of its inherent design, when intervening with controversies, legal discourse, limits the scope of analysis only to the question of legality —is it legal or is it illegal? In doing so, many important questions remain unanswered, or not even asked.21 For that matter, in the case at hand, is it legal (or constitutional) for the State to deny transgender persons from changing their gender marker on their birth certificate? Once you limit the scope of the controversy to the question of legality, the issue is not about “[t]he right to identify our own existence,”22 as the Judge’s conclusion suggests, but about the right to decisional and informational privacy. The juridical discourse managed to relegate the questions about gender identity and the possibility to live our life in accordance with the idea we have of oneself, which were the issues that brought the plaintiffs to the steps of the courthouse.
IV. The “Natural Attitude”: An Unquestioned Assumption
What is a person’s true gender? Do we even have one true gender? We all have an idea of what gender means, at least we believe so. And how could we not? Most of us, as cis-gender,23 walk through life without being forced to think about our gender. Our gender corresponds to what society considers appropriate. We all share an ideology of gender or “a cultural belief that informs [our]practices and attitudes regarding gender.”24 The generally accepted gender ideology in our society holds that “there are two easily distinguished genders,” either male or female.25 Susan Keller presents Suzanne Kessler and Wendy McKenna’s argument that this gender ideology is based on what they call the natural attitude. They define the natural attitude as an “unquestioned assumption governing our everyday lives ‘that every human being is either a male or a female’.”26 The Arroyo Court also assumes a notion of gender uncritically and accepts, without even the slightest hesitation, the fact of two genders, either male or female, as a starting point. In so doing it has no problem to accept and reiterate that a true gender really exists. The Arroyo Court adopts as judicial knowledge, without question or proof, a binary definition of gender.
But, from where does the Court infer this binary notion of gender? Why does the Court assume that gender can only be either male or female? In Gender Trouble, Judith Butler suggests that “[t]he presumption of a binary gender system implicitly retains the belief in a mimetic relation of gender to sex whereby gender mirrors sex or is otherwise restricted by it.”27 From a natural attitude perspective, which assumes a binary notion of gender, the idea that there is a mimetic relation between sex and gender —in which the first one, somehow, influences the latter— goes without question. But, what is the difference between sex and gender? How do these two concepts relate?
The sex-and-gender distinction was first introduced to dispute “the biology-is-destiny formulation.” 28 The biology-is-destiny formulation does not recognize a distinction between sex and gender, they are synonyms. Just as the natural attitude discussed by Kessler and McKenna, the biology-is-destiny formulation assumes, without question, that the assigned sex at birth must determine the way we live our gender. For that matter, if doctors, by their morphological observations, see what looks like a penis, they assign the newborn’s sex as male. On the other hand, if they see something that looks like a vagina, they assign the newborn’s sex as female. It must be clear to us all that the sex assignment at birth is not the result of a DNA test. The sex assigned at birth is not determined by any combination of X or Y chromosomes, but by a doctor’s ocular inspection. If the doctor saw a penis, the newborn would usually be dressed in blue clothing and bought cars and mechanical equipment; if the doctor saw a vagina, the newborn would usually be dressed in pink clothing and bought a Fisher-Price kitchen. The sex assignment process imposes on that newborn, and in the imagination of its family and that of society in general, the gender it must perform throughout its life.29 This is part of the imposition of gender roles or “[b]ehaviors, attitudes, values, emotions, beliefs, and attire that a particular cultural group considers appropriate for males and females on the basis of their biological sex”.30
While sex appears to be determined by biology, or the way our bodies look when we are born, gender is social and culturally constructed.31 Butler elaborates on the idea of gender as a social construct but focuses on the performativity of gender when she considers it as:
[A] kind of a doing, an incessant activity performed, in part, without one’s knowing and without one’s willing, it is not for that reason automatic or mechanical. On the contrary, it is a practice of improvisation within a scene of constraint. Moreover, one does not “do” one’s gender alone. One is always “doing” with or for another, even if the other is only imaginary. What I call my “own” gender appears perhaps at times as something that I author or, indeed, own. But the terms that make up one’s own gender are, from the start, outside oneself, beyond oneself in a sociality that has no single author (and that radically contests the notion of authorship itself).32
Following this line of thought, gender appears to be neither a consequence or effect of sex, nor as immutable and determined as sex.33 Rather, gender emerges as the social and cultural meanings that the sexed body assumes.34 This radical discontinuity between sexed bodies and culturally constructed genders suggests that there is no logical deduction that demands those assigned men at birth to exclusively perform bodies of males or those assigned women at birth to enact solely female bodies.
The list of documents to be presented along with the Request to Change Transgender Persons’ Gender Marker form further illustrates the Arroyo Court’s notion of gender. The healthcare professional or mental health professional with whom the person has a doctor-patient relationship has to certify, based on his or her professional opinion, first, the true gender of the applicant and, second, that it is expected that this true gender will continue to be the gender with which the applicant will identify him or herself in the future. As discussed in this section, the expected expert opinion of the healthcare professional, in order to comply with this court order, must assume that gender is a “relatively permanent phenomenon.”35 Apparently, “gender can only be diagnosed if it meets the test of time.”36 In some sense, the Arroyo Court assumes that “gender norms are relatively fixed, and that the problem is making sure that you find the right one, [the true gender]the one that will allow you to feel appropriate where you are, comfortable in the gender that you are.”37 This stable and absolute notion of gender forgets that “[l]ife histories are histories of becoming, and categories can sometimes act to freeze that process of becoming.”38 In that sense, juridical discourse —and the medical and psychological discourse for that matter—, through its efforts in producing general and abstract categories which suits to understand and assort all human experiences, serves as a normalizing agent of traditional and unquestioned notions of gender. These undisputed assumptions set the ground for discrimination and stigmatization against those human experiences which transgress traditional gender ideology, with consequences far too painful to discuss in this Article.39
V. From Gender Identity Disorder to Gender Dysphoria
Another influential factor in this case appears to be the fact that plaintiffs were all diagnosed with gender dysphoria. The pathologizing of the transgender status or transgenderism is something to be skeptical about. What is to be transgender? Who does the law recognize as transgender? Is being a transgender some kind of pathology? Is transgenderism the consequence of some kind of psychological trauma or hormonal imbalance that can only be cured by some medical treatment? In 2012, the American Psychiatric Association (A.P.A.) announced the revision of the manual known as the DSM-5 that classifies mental illnesses.40 This revision eliminated the term gender identity disorder and replaced it with gender dysphoria.41 For them, this change meant a transition from considering all transgenders as mentally ill to focusing their attention on only those who feel distressed by their gender identity.42 We still feel that this transition from one term to another is unhelpful in eradicating the stigma caused by the category altogether. Jack Drescher, member of the A.P.A. group that worked on the Sexual and Gender Identity revision for the DSM-5, said, with respect to the removal from the DSM of the homosexual diagnosis in 1973, that it changed world opinion on homosexuality.43 We believe that so may be the case with gender dysphoria and transgenderism. Nonetheless, our healthcare system has been structured to demand from transgender persons the gender dysphoria diagnosis to guarantee healthcare access, such as hormonal treatment and counseling. For that reason, “[m]any LGBT+ activists felt that the gender dysphoria diagnosis could be a powerful legal tool when challenging discrimination in health insurance plans and services.”44 We must be careful about the medicalization discourse because any medical anomaly or sickness can or should be cured by medical treatment. This logic might lead us to a dangerous path, especially in a fundamentalist society.
The gender dysphoria rhetoric assumes that simply because someone of a given gender manifests attributes of another gender —or simply a desire to live as another gender— they must be suffering from some kind of mental illness or emotional distress. This approach serves to reproduce the natural attitude towards gender discussed in the previous section, by assuming a coherent gendered life that “demeans the complex ways in which gendered lives are crafted and lived.”45 The irony is that while the gender dysphoria diagnosis attributed to transgenders, without a doubt, implies a medicalization, our health system is so structured that undergoing that pathologizing process “constitutes one of the important ways in which the desire to change one’s sex might be satisfied.”46 Thus, the fundamental question is, how can we think and rearrange our institutional structures so that this conflict can be ameliorated?
The gender dysphoria diagnostic focuses its attention to those transgenders who feel distress by their gender identity. In doing so, this definition assumes that the feelings of distress and discomfort are the consequence of being in the wrong gender, “and that conforming to a different gender norm, if viable for the person in question, will make one feel much better.”47 What the diagnosis does not dare to ask is whether there is a problem with the generally assumed static and intransigent notion of gender, or the natural attitude towards gender. Are these traditional gender norms the ones responsible in producing distress and discomfort to our transgender peers? Do these unquestioned assumptions provide the justification needed to discriminate and stigmatize our fellow human beings? Does the feelings of distress and discomfort in transgenders lie in their own nature as transgender, or, rather in society itself, outside of themselves? Is society as a whole, by reproducing traditional gender norms, the one responsible in making transgender lives unbearable?
widely discussed in this Article, some of the ideas that justified the Court’s
decision in Arroyo v. Rosselló should
be questioned. The Arroyo Court assumes without question a
binary notion of gender, and in so doing some life experiences are relegated.
The juridical and medical discourse immersed with the natural attitude towards
gender, reproduces traditional gender ideology and serves as an excuse to
stigmatize and discriminate against those who transgress those norms. The
gender dysphoria diagnosis, fundamental for this decision, aids in reproducing
this discrimination and stigmatization. Nonetheless, it is imperative to
redesign and rearrange the institutional structures that makes it possible for
transgenders to transition. Before we even start talking about eradicating the
diagnosis altogether, an alternate process must be put in place to assist our
fellow transgenders, economically, legally and socially, in their process and
desire to live their life in accordance with their identity.
* The author is a third-year student at the University of Puerto Rico School of Law and was a member of the Editorial Body of the LXXXVII Volume of the University of Puerto Rico Law Review. The author also collaborates with the Sexual Rights ProBono Program of the University of Puerto Rico School of Law.
- Arroyo Gonzalez v. Rosello Nevares, 305 F. Supp. 3d 327, 334 (D.P.R. 2018).
- Ex parte, Alexis Delgado Hernández, 165 DPR 170 (2005).
- Alda Facio & Lorena Fries, Feminismo, género y patriarcado, 3:6 ACADEMIA 259, 268-69 (2005).
- JOCELYN GREGOIRE & CHRISTIN JUNGERS, THE COUNSELOR’S COMPANION: WHAT EVERY BEGINNING COUNSELOR NEEDS TO KNOW 61 (2007).
- Arroyo Gonzalez v. Rossello Nevares, 305 F. Supp. 3d 327 (D.P.R. 2018).
- GREGOIRE & JUNGERS, supra note 6, at 61.
- Vital Statistics Registry Act, P.R. LAWS ANN. tit. 24, § 1231 (2011).
- Order, Arroyo Gonzalez v. Rossello Nevares, No. 17-1457CCC (D.P.R. March 28, 2018), https://docs.justia.com/cases/federal/district-courts/puerto-rico/prdce/3:2017cv01457/135517/40.
- Arroyo Gonzalez, 305 F. Supp. 3d at 328.
- Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 183 (1st Cir. 1997).
- Arroyo Gonzalez, 305 F. Supp. 3d at 333.
- See Change Of Sex Marker, U.S. Department of State, https://travel.state.gov/content/travel/en/passports/apply-renew-passport/gender.html (last visited Jan. 22, 2019).
- See Ayudalegalpr.org, Solicitud Para El Cambio De Género De Personas Transgénero En La Licencia De Conducir, Ayudalegalpr.org https://ayudalegalpr.org/resource/solicitud-para-el-cambio-de-gnero-de-personas-transgnero-licencia-de-conducir?ref=2jbWc (last visited Jan. 22, 2019).
- GREGOIRE & JUNGERS, supra note 6, at 61 (“Intersex: A person who was born with genitalia, secondary sexual characteristics, or both of indeterminate sex, or with features combined from both sexes. A more archaic and less preferred term for people who are intersex is hermaphrodite.”; “Androgynous: A person who has both feminine and masculine qualities and who may assume female and male roles.”); Brigit Katz, California Becomes First State to Introduce Gender-Neutral Birth Certificates, Smithsonian.com (Oct. 20, 2017), https://www.smithsonianmag.com/smart-news/california-becomes-first-state-introduce-gender-neutral-birth-certificates-180965343/ (“California’s Gender Recognition Act defines non-binary as an ‘umbrella term for people with gender identities that fall somewhere outside of the traditional conceptions of strictly either female or male’.”); Evan Simko-Bednarski, New York City birth certificates get gender-neutral option, CNN, https://edition.cnn.com/2019/01/03/health/new-york-city-gender-neutral-birth-certificate-trnd/index.html (last updated Jan. 3, 2019).
- See Christina Caron, Californians Will Soon Have Nonbinary as a Gender Option on Birth Certificates, N.Y. TIMES (Jan. 20, 2018), https://www.nytimes.com/2017/10/19/us/birth-certificate-nonbinary-gender-california.html; Katz, supra note 19; Leyland Cecco, Transgender rights: Ontario issues first non-binary birth certificate, THE GUARDIAN (May 8, 2018), https://www.theguardian.com/world/2018/may/07/ontario-non-binary-birth-certificate-canada-transgender.
- See ÉRIKA FONTÁNEZ, AMBIGÜEDAD Y DERECHO: ENSAYOS DE CRÍTICA JURÍDICA (2014) (where the author explores the limits of the legal discourse and Property Law in dealing with different contexts of political turmoil and conflict in Puerto Rico).
- Arroyo Gonzalez v. Rossello Nevares, 305 F. Supp. 3d 327, 334 (D.P.R. 2018).
- GREGOIRE & JUNGERS, supra note 6, at 61 (“Cisgender: People who possess a gender identity or perform a gender role society considers appropriate for one’s sex.”).
- Susan Etta Keller, Operations of Legal Rhetoric: Examining Transsexual and Judicial Identity, 34 Harv. C.R.-C.L. L. Rev. 329, 339 (1999).
- Id. at 340 (citing SUZANNE J. KESSLER & WENDY MCKENNA, GENDER: AN ETHNOMETHODOLOGICAL APPROACH 1 (1985)).
- JUDITH BUTLER, GENDER TROUBLE AND THE SUBVERSION OF IDENTITY 6 (1990).
- GREGOIRE & JUNGERS, supra note 6, at 61 (“Gender role stereotypes: Socially determined models that contain the cultural beliefs about what the gender roles should be.”).
- BUTLER, supra note 27, at 7 (Butler goes even further and questions the generally accepted idea that sex is biologically determined, and states that sex is socially constructed as well: “If the immutable character of sex is contested, perhaps this construct called sex is as culturally constructed as gender; indeed, perhaps it was always already gender, with the consequence that the distinction between sex and gender turns out to be no distinction at all.”).
- JUDITH BUTLER, UNDOING GENDER 1 (2004).
- BUTLER, supra note 27, at 6.
- BUTLER, supra note 32, at 81.
- Id. at 95.
- Id. at 80.
- See Sally Weale, Almost half of trans pupils in UK have attempted suicide, survey finds, THE GUARDIAN (Jun. 27, 2017), https://www.theguardian.com/education/2017/jun/27/half-of-trans-pupils-in-the-uk-tried-to-take-their-own-lives-survey-finds; Michael Nedelman, 9-year-old died by suicide after he was bullied, mom says, CNN, https://www.cnn.com/2018/08/28/health/preteen-suicide-jamel-myles/index.html (last updated Aug. 29, 2018); Daniel Kreps, Transgender Teen Who Fought Bullying Online Commits Suicide, ROLLING STONE (Apr. 10, 2015), https://www.rollingstone.com/culture/culture-news/transgender-teen-who-fought-bullying-online-commits-suicide-59169/; Josh Katzowitz, Transgender game developer who’d been bullied online dies by suicide, THE DAILY DOT (Jun. 25, 2018), https://www.dailydot.com/irl/chloe-sagal-suicide-cyberbullying-harassment/; Maria Guido, This 12-Year-Old Transgender Boy Died By Suicide. Use The Right Pronouns When Talking About HIS Death, SCARY MOMMY (April 6, 2018), https://www.scarymommy.com/chance-houle-transgender-suicide-pronouns/.
- AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013), https://www.psychiatry.org/psychiatrists/practice/dsm; Moni Basu, Being transgender no longer a mental ‘disorder’ in diagnostic manual, CNN (Dec. 27, 2012), http://inamerica.blogs.cnn.com/2012/12/27/being-transgender-no-longer-a-mental-disorder-in-diagnostic-manual/.
- Moni Basu, supra note 40.
- Id. (quoting Jack Drescher).
- Id.; see also Jack Drescher, M.D., jackdreschermd.net, http://www.jackdreschermd.net/ (last visited Jan. 22, 2019).
- Moni Basu, supra note 40.
- BUTLER, supra note 27, at 4-5.
- Id. at 5.
- BUTLER, supra note 32, at 95.