Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans* People

Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans* People


In most jurisdictions in the U.S., a birth certificate’s sex marker as decided by the appearance of the infant’s genitals creates a rebuttable presumption of legal sex requiring specified (but widely varying) evidence to overcome. These requirements for recognition are generally illogical, inconsistent, and unattainable for most trans* people. As a result, the majority of trans* people in the U.S. end up with conflicting sex markers on their identity documents. This regime of a legal sex designated at birth directly harms the most vulnerable and unfairly distributes life chances. The current U.S. rules governing marriage-based immigration for trans* people provide a valuable case study of the inadequacy of the predominant approach to sex classification in the U.S. Within the context of the many other harms that trans* people (and queer cisgender people) experience partly as a result of legal sex categorization and regulation, the many problems of the U.S. rules governing marriage-based immigration for trans* people demonstrate that the only solution to the current mess is the total elimination of “sex” as a legal category.

 

PDF

More in this Issue

Why Treaties Can Abrogate State Sovereign Immunity: Applying Central Virginia Community College v. Katz to the Treaty Power

This Comment considers a fundamental question about the relationship between state and national sovereignty in our federal system: may individuals hold state governments accountable in federal court for violations of treaty-based rights? The answer to this question appeared to be negative until the Supreme Court decided Central Virginia Community College v. Katz, holding that state […]

Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law

This Article shows why criminal law should be regarded as parenting law, as child molestation statutes formally categorized as criminal statutes are increasingly being used to regulate parents’ behavior as they engage in mundane childcare practices. In the hands of legal decision-makers, these laws end up being enforced in ways that reinstantiate traditional gender norms. […]

A Fiduciary Theory of Judging

There are some fundamental questions of jurisprudence that have been with us from time immemorial. Cardozo started the modern conversation about the role of the judge in American democracy, but no one has been able to complete it. We have yet to uncover a satisfactory theory of judging that adequately accounts for the diverse, and […]

De Facto Immigration Courts

This article explores one set of criminal law actors who have been quietly accumulating immigration screening power over the last several years-our nation’s inferior criminal courts and the prosecutors who rule them. By centering criminal courts, this article hopes to accomplish three things.  First, it hopes to show that delegation is no monolith.  Unlike other […]