I used the following as a hypothetical example of what an appellate court judge might need to rule on in december’s ratify-Estrada thread, but it occurred to me that it might be an interesting question to debate in its own right:
“To give you an outstanding example, suppose J’Noel Gardiner, the transsexual widow who was in the news, is involved in a Federal case where her sex is significant, say she’s owner and CEO of a company seeking WBE status in a Federal contract. We have definitive rulings that in Wisconsin, she is a woman, and in Kansas she is a man. What does the Federal government regard her as? Happens SCOTUS has declined to rule on this question – and it’s appealed up to your court. How do you decide? Why? Does the Constitution give you guidelines? Which parts? Why are they controlling?”
(I didn’t use quote tags for that paragraph since people may want to quote the post to discuss it, and as an interior quote in a quoted post it would vanish.)
Possible questions: What does case law say at present – U.S. or state? Are there Constitutional guidelines that might be read as covering this? What should the guidelines be, IYHO, and why?
One way to look at it would be that the WBE program is remedial, and should be construed broadly to encompass all ‘women.’ On the other hand, you could say that the program is intended to benefit ‘traditional’ women, not men dressed as women. I would tend to favor the latter reading and say that a transgender person would not qualify. Do you have a cite to the section of the USC or CFR that covers this, if not I can try to look one up.
I think the federal government would go with whatever the state of residence determines, as that would be in keeping with the basic principles of U.S. federalism.
As a slight hijack, how many transgendered people are there in the U.S.? I have to wonder how big a problem this is and whether it is appropriate to spend a lot of time, money and resources to determine a “correct” answer to the problem.
This happens a lot. Some flashy question that affects a relatively small handful of people gets lots of media, legislative and judicial attention while “boring” problems that affect many millions of people disappear from the radar screen.
Interesting and thoughtful answer. One quick comment that I’d make is that you mistake transsexual persons for transvestites – the former are people who, thinking that they are “really” of the opposite sex than their genitalia and secondary sex characteristics would lead anyone to conclude, undergo psychotherapy, hormonal therapy, and surgery to “become” the sex that they feel they “really” are. (The quotation marks are not to disparage these people, but – in the classic use of quotation marks for attribution – to identify the terms within them as being what they think and feel, as opposed to accepting that as a given and therefore hijacking this thread into a discussion of whether they “really” change sexes and are “really” what they feel themselves to be as opposed to what their bodies suggest they are.) If it were merely a matter of putting on women’s clothes for a meeting, there would probably be thousands of businessmen contented to be such who would jump to wear a dress in order to claim the special breaks given to WBEs. The question is, is a person who has gone through all of this in order to be publicly perceived as, and function as, a woman, “really” a woman in the eyes of the law? Why or why not?
This definition was in several places on the Internet, and while I downloaded it from the subcontractor rules for Southern Cal. Edison, I suspect strongly it’s the official Federal standard quoted there:
Under Federal statutes, municipalities and businesses obtaining Federal funds must make use of MBEs and WBEs to the extent possible, with a specific guideline as to what they should comply with set in each case by the administering agency and based on a variety of factors. For example, when George and I administered a village’s HUD grant for a new water treatment plant, the town at our behest engaged a landscaping firm owned and run by a woman to resod and landscape the grounds of the plant after its construction, at about 5% of the total project cost, which brought the town into compliance with HUD’s guidelines for WBE participation in rural upstate New York at the time.
I realize you’re merely saying this is going to happen, not that it should happen. But do you realize what a can of worms this is? Male and female don’t map neatly onto sex chromosome configuration. Oh, true, for a vast majority they do, but for a small percentage, which comprises a very significant number of people, things aren’t so simple. There are a whole range of chromosome configurations besides XX and XY, and there are even some XY people who have been outwardly female since birth. Cite Cite
Adopting strictly genetic criterion as a legal definition of gender is a horrendously bad idea.
Poly thanks for the clarification on the proper term, I think I had it right in my mind, but was unclear in my post. After I posted I googled around a bit and found the same definition you did, it does appear to be the official statement as to what qualifies as a WBE.
It poses an interesting question, “What does woman mean in the context of the WBE program?” I doubt the enacting statue gives definitions, so the courts would be left to figure it out. On the one hand you might argue that a man who presents to the world as a woman is likely to suffer the same discrimination as a biological woman and therefore ought to be covered. On the other hand, did Congress really intend for the WBE program to extend to transgender people? I suppose there might be something in the Congressional record, but it probably never came up. I have a professor who specializes in discrimination issues, and gay rights in particular. I will try to ask him if he knows of any authority on the issue.
On preview I agree with Gorsnak that the DNA test is not going to be satisfactory.
Free Westlaw access is a wonderful thing, not that I have time to do a proper and exhaustive search, but some things I found:
Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Circ. 1984) (Talking about the definition of ‘sex’ in Title VII)
Now, it is obviously dangerous to try to jump from Title VII (especially given the history of the amendment that added ‘sex’ to Title VII in the first place) to the WBE, but that may help.
But, I found that in Rosa v. Park West Bank & Trust Co. 214 F.3d 213 (1st Circ. 2000) the court analogized to Title VII law when a transvestite sought to recover under the Equal Credit Opportunity Act (ECOA) for alleged discrimination based on sex, and at least for the purposes of a motion to dismiss, held that the claim could go forward.
How about this novel idea for the gov’t: JUST TREAT EVERYONE EQUALLY IN THE FIRST PLACE.
I realize you are looking for some in-depth legal argument, but frankly this sort of stuff is mind numbing. Sometimes it is necessary to lift your head out of the muck and glance into the clear, open air.
This is an interesting observation. I should point out that most people with these configurations:
X0 (Turner’s Syndrome)
XXY (Kleinfelter’s Syndrome)
XYY (JAcob’s Syndrome)
or any variant of XXX
typically identifying themselves “on target” with the chromosonal gender they are closer to…although some research has indicated that a higher perecentage of the first two at least (Kleinfelter’s and Turner’s) adopt more “androgynous” characteristics.
People born XY who have “female” genitalia and identify themselves female (the opposite can happen as well) have typically been exposed to abnormal hormonal levels in utero. This causes their genitals and brain to form like the opposite gender. I would argue that in these cases that they should be considered the gender to which they identify. Similarly if a transsexual has successfully demonstrated a life-long belief that they are the “opposite” gender and have successfully adjusted to their trans-gendered life (meaning they are living as the gender they identify with without any interruptions)…than they should be considered the gender that they consider themselves to be.
So, if Shaq decided to become a female, he should be allowed to compete on the Woman’s Olympic Basketball team? (not sure these is one, but you get my point.) Wasn’t therre a tennis player (Rene Richards?) who went thru this whole deal back in the 70s or 80s?
Hmm…that is a thoughtful twist on things isn’t. The problem with Shaq as that (up 'till now) he has been living as a male, thus he wouldn’t be able to demonstrate the life-long credible identification and adjustment to the “opposite” gender that I mentioned above. Nonetheless, your point is well taken.
Hmmm…that also leads to the question of what would happen in a case like that of Stella Walsh, the Olympic track and field athlete who competed, and won gold medals in, women’s events, and was found after her death to be genetically male. (I realize that some experts contend that her gender identity was still in question, but that too would suit this example.) If a modern-day Stella Walsh was identified today, would the athlete be allowed to continue to compete in women’s sports?