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Sex and the CityNew York City bungles transgender equality.

By Kenji Yoshino
Posted Monday, Dec. 11, 2006, at 2:43 PM ET

(Continued from page 1)

The board's failure to grasp that a sex change on a birth certificate might be more than a changed mark on a piece of paper is startling. It can only be explained by the deference our culture and government give to self-identification. We rightly give broad leeway to individuals to declare their sexual orientation, religion, political affiliation, and even (starting with the 1980 census) race. Sex is different from these other classifications, because we have historically believed it to turn on a stable, biologically based binary. Yet this assumption—that sex is binary and written on the body—is what transgender activists are contesting. It is easy to see how the New York City health board might have gotten carried away by the view that if gender was not biologically determined, it was up to the individual to decide.

This explanation, however, does not excuse the department's apparent failure to engage in the most rudimentary diligence. The panel that came up with the proposal did not have any representatives from the institutions (such as jails, hospitals, or schools) that might have been affected by it. Even so, the department should have been able to anticipate the concerns of such institutions. A moment's reflection suggests that the nontransgender female prisoner who does not want to be housed with a transgender female prisoner who remains anatomically male may have a legitimate interest in the gender of her cellmate.

Another moment of reflection suggests at least four interests that a person or the state might have in another person's gender. First, personal safety: Many communal spaces, like prison cells and public bathrooms, are segregated by sex to protect women, who are generally physically weaker than men, from assault or rape. Second, privacy: As employment-discrimination law recognizes, individuals have an interest in ensuring that their sexual privacy is not invaded by members of the opposite sex in contexts like nursing or medical care. Third, prevention of fraud: Lowering the barriers to sex reassignment increases the incentive for individuals who have no sincere desire to change their sex to do so for opportunistic reasons. Fourth, national security: Permitting individuals to make any alterations to their birth certificates makes those records less useful to Homeland Security.

These interests will not necessarily trump the transgender person's right to self-determination. Indeed, one reason the board should have articulated them more clearly is so they could have been contested. There is little evidence that transgender individuals present a security risk to women, while there is a great deal of evidence that transgender individuals themselves are at immense risk if they are not given accommodations. To the extent that privacy concerns rest on a fear of sexual objectification, they rely on a specious assumption of universal heterosexuality. Fraud seems unlikely when a perpetrator would have to live two years in another gender to effectuate his ends. National security would not be undermined if the original records were sealed to all but those in charge of enforcement.

The New York City health board, then, seems to have engaged in an all-too-common form of pious progressivism, in which good intentions took the place of good analysis. If transgender people ever win more discretion over their own self-definition, it will be because the countervailing considerations have been overcome rather than ignored. In failing to consider those interests, the board failed the group it was ostensibly seeking to protect.

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Kenji Yoshino is the Guido Calabresi Professor of Law at Yale Law School and author of the recently published Covering: The Hidden Assault on Our Civil Rights.
Illustration by Mark Alan Stamaty.
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