A Wise Judge

Most judges don’t get it. They don’t understand that gender is a lot more than chromosomes but one judge does.

Judge: Gender Laws Are at Odds With Science
Time
By Noël Wise
Mar 08, 2017
Wise is a Judge for the California Superior Court, County of Alameda.

Deep-seated religious beliefs, cultural constructs, the regulation of sports (such as the rules confronted by Texas high-school wrestler Mack Beggs) and recent laws are premised on the bedrock belief that each of us is either a man or a woman. Yet the reality is that today in the United States alone there are approximately one million people who — from the moment of birth — cannot clearly be defined as either male or female.

This physiological truth is unrelated to whether someone is straight, gay or transgender. Many individuals are born with sex chromosome, endocrine or hormonal irregularities, and their birth certificates are inaccurate because in the United States birth records are not designed to allow doctors to designate an ambiguous sex. Countless people likely have no idea that they fall into this group. The more we learn about our DNA, the more that biological sex — from the moment of conception — looks like an intricate continuum and less like two tidy boxes. This understanding makes it virtually impossible for judges to consistently apply a law that permits or prohibits conduct based on whether someone is a man or a woman.
[…]
Enacting a law is just the beginning of the legal process. The executive branch must handle law enforcement. In North Carolina, for example, police officers and district attorneys must determine whether to arrest and prosecute someone for using a public bathroom that is inconsistent with the “perpetrator’s” sex based on their birth certificate. A law cannot be vague — a person of ordinary intelligence must know what conduct the law requires or forbids, and judges must be able to consistently apply the law in a non-discriminatory manner. There is no room for ambiguity.

Wow! This is radical coming from a judge, and how did he come about to understand gender is a continuum?

Many people share the ubiquitous notion that biological sex falls into two, mutually exclusive categories. In 2009 my perspective changed when I read an article written by a woman who learned shortly after marriage that she and her husband couldn’t have biological children because she had an XY chromosomal pairing. While she looked like a woman, and she and her parents had always believed she was female, from a genetic standpoint she was a man. The article was published the year after California passed Prop 8, a version of DOMA
[…]
I was curious whether her situation was an obscure medical anomaly that was statistically and legally irrelevant. It wasn’t. A regularly cited 1991 study of nearly 35,000 newborn children found that 1 in 426 did not have strictly XX or XY chromosomes. In addition, the World Health Organization reports that 1 in every 2,000 births worldwide are visibly intersex, because the child’s genitals are either incomplete or ambiguous, which equates to five newborn Americans a day. This represents a sizable U.S. population that cannot be ignored by the law.

And then he makes this statement…

If such individuals have the right to equal protection, to privacy and to use a public restroom, what clear and science-based legal principle can our judiciary employ to determine whether they lawfully used the correct bathroom?

His closing paragraph is dynamite!

In the United States, judges are obligated to see the world through a secular lens. They must apply the law without the influence of any religious construct or political agenda. If modern science recognizes that sex has countless natural permutations, and if birth certificates, physical observation and even chromosomal testing cannot reliably categorize every individual as either male or female, then our judiciary cannot be required to make gender findings antithetical to that reality. When legislators blur the lines of church and state and enact laws that permit or prohibit conduct based on biologic gender as only male or female — whether it is for the purpose of authorizing marriage or designating the use of public bathrooms — they place an impossible burden on our judiciary, and ultimately on our country and all of its people.

Hopefully other judges will start to understand that gender is a lot more than your chromosomes and the judges in the Grimm v. Gloucester County School Board case I hope will have this wisdom.

Many Republican politicians like simple things because they start getting a headache when they think too hard and the complexities of gender is one of those topics. Male = XY Female = XX Two little boxes to check, nice and simple.

Thing like Klinefelter’s, Turner’s syndromes, Mosaic, AIS, and Alpha-5-reductase deficiency make politicians heads spin. The Bible says God made man and woman… nice and simple, no thinking involved.