This article explores an Illinois domestic relations case in which a father (who had undergone sexual reassignment surgery to remove his internal female organs, and obtained an amended birth certificate changing his legal sex from female to male) was denied custody of the couple’s children based on the court’s ruling that the marriage was invalid. The court reasoned that because the father still had external female genitalia at the time of marriage, it was a same-sex marriage, and therefore invalid under Illinois law. The authors argue (consistent with a decision from the European Court of Human Rights) that “gender identity, public persona, hormone levels, and medical and psychiatric diagnoses” taken as a whole would be a better legal determinant of sex than “what physical genitalia a person has between his or her legs.” The authors further argue that “the law should not require complex surgery for a female-to-male transsexual.”

A comparison of legal struggles of transsex and intersex individuals, this article suggests that the two groups are not necessarily at odds. “Transsex individuals often desire the future body that they should have, while intersex individuals often mourn the body they had before an unwanted normalizing surgery…” (usually at birth or in early childhood). The author explains that transsex individuals are seeking a positive liberty (i.e. Medicaid coverage of adult transsex surgeries) based upon gender identification, while intersex individuals (or those advocating for them) are seeking a negative liberty (i.e. protection from intrusive sex assignment surgery). The author argues that the two groups could avoid contradicting each other by basing their claims to liberty on a premise of “gender identity as an inner-self that is distinct from the body,” rather than medical conceptions of gender.

An interesting section on this article documenting the treatment of transgender aliens seeking asylum in the United States asks whether, on the basis of the U.S. criteria, an American transgender would be entitled to asylum in a foreign country. According to those criteria, an applicant must prove that he or she was: (1) outside his or her home country; (2) a member of a particular social group, or had such a membership imputed onto them by his or her persecutor; and (3) persecuted in the past or has a well-founded fear of persecution in the future. A fourth criterion is that past or future persecution must be the basis of the applicant's real or perceived membership in the particular social group. The point is to test "United States asylum ideals against the reality of its domestic society," a test on which the U.S. is not likely score well, with a likely result that "another country applying United States asylum law would grant asylum to a transgender applicant based on his or her persecution in the United States."

Although Capers considers the case of transvestism and "drag," for him these kinds are just examples of a broader concept of "cross dressing" in which one can engage. In addition to exchanging the apparel of one gender for another, one can also use the mental exercise to expose other biases, including race, class, sexuality, and status. Would Martha Stewart have been convicted if she had been seen not as a privileged woman with an expensive Birkin bag, but as a male with a briefcase, or a secretary with a purse from the Gap? Imaginative cross dressing thus becomes a form of Rawls' "veil of ignorance," a technique to detect our otherwise unrecognized prejudices.

David Cruz examines the ideology of the heterosexual reproductive imperative--the belief that the "species and society must be reproduced [and that] this is naturally and properly done only by women and men acting together, and women, queer, and transfolk should just recognize the primitive truth of that and willingly bear the burdens of laws designed to reinforce this natural reality"--for its impact upon women's reproductive autonomy, same-sex marriage claims, and transgender demand for recognition.

This collection of essays explores legal, historical and political dimensions and implications of the transgender movement, and it anticipates, “a dramatic widening of the cultural and social imagination.” Contributors include law professors, attorney advocates, transgender activists and interdisciplinary scholars concerned with gender and sexuality theory.

DeCleene delineates the plight of transgender discrimination in healthcare caused by the legal and medical professions too often relying on a polarized definition of sex, rather than the preferred sexual continuum paradigm. DeCleene documents examples of stigmatization and urges legal reform as a catalyst for social change, health care reform, and nondiscrimination laws inclusive of transgender persons.

The rationale of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) that protects against sex stereotyping discrimination can protect a transsexual "experiencing discrimination based on the failure to conform to the employer's expectations of how stereotypical men and women act," it does not necessarily offer a useful precedent for a transsexual who in fact conforms to such stereotypes, but nonetheless suffers discrimination because gender identity does not match biological sex. The author reads Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) as filling this gap. (Later opinions in this case continued to favor the employee; see 525 F.Supp.2d 58 (D.D.C. 2007); 577 F.Supp.2d 293 (D.D.C. 2008)). This outcome promises to bring transsexuals fully within the protections of Title VII's "because of ... sex" rule, an achievement currently denied to other sexual minorities like gay men and lesbians because, as Eno notes, "Transsexualism is about being a man or a woman, not about being attracted to a man or a woman."

This is the kind of article that would have been well served by a abstract that distilled its complicated arguments. The reasoning appears to be that linking transgender rights to the formal legal categories of "sex" and "gender identity" undermine the "reconstructive potential" of transgender lives to demonstrate the fundamentally distorting influences of those ideas on our social and political systems. The article appears then to follow the reasoning of those that suggest, for example, that excluding gay couples from marriage is not the problem; marriage is the problem. Readers may find particularly interesting the author's use of the Native American "berdache" tradition -- and the Navaho nadleeh particularly -- as an illustrative of an alternative gender fluidity to take the place of our own static gendered hierarchies and stereotypes.

A federal court decision in Utah is called into question by the author who disagrees with the court’s reasoning in denying Title VII protection to a preoperative transsexual who was fired from her job for using the women’s restroom while she still had male genitalia. The author argues that the court made a mistake in choosing to define a preoperative transsexual in accordance with her biological sex. Rather, the court should have classified that plaintiff as a “female who was discriminated against because she happened to have male genitalia.”

Expanding on the common trope that marriage is one-man-one-woman, the author notes that its full expression is "one male, who has all the biological and psychological characteristics of a male, and one female, who has all the biological and psychological characteristics of a female." The effects of the Massachusetts decision that included gay couples into full marriage protections, Goodridge v. Dept. of Pub. Health, 440 Mass. 309 (2003), were denied to nonresidents from states where such marriages would be invalid under a 1913 law upheld by Cote-Whitacre v. Dept. of Pub. Health, 446 Mass. 350 (2006). Kajstura suspects that because the "Cote-Whitacre opinion lists some barriers to marriage in other states--including the fact that a couple is of the same sex--but...does not appear to specifically contemplate the effects of sex determination by home states," the outcome for transgendered persons is that they "may have more obstacles to marriage now then before Massachusetts allowed same-sex marriage."

Transgender youth face a number of obstacles when considering their options for transitioning. The author reviews some of the legal variables associated with the three scenarios of parental agreement, parental disagreement between themselves about transitioning, and when both parents oppose the process. While this discussion may not be as in-depth as some would like, it can serve as an accessible means to frame one's deeper investigation of the issues.

In light of recent acts of discrimination against transgenders (the article highlight the case of the Largo, Florida, city manager fired a week after revealing his transsexuality, but one could also point to Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008)), the authors present an argument that "the Title VII definition of 'sex' should be expanded and thus interpreted to include transgender." To achieve this outcome, they confront earlier case law representing the alternative view of a narrow definition of the term such Ulane v. Eastern Airline, Inc., 742 F.2d 1081 (7th Cir. 1984) (pilot fired after changing sex), and analyze newer decisions that have extended sex stereotype protection in at least some jurisdictions, e.g. Smith v. City of Salem, 369 F.3d 912 (6th Cir. 2004) (firefighter diagnosed with Gender Identity Disorder forced to resign on account of "no longer acting 'masculine enough'"); see also Maffei v. Kolaeton Indus., 626 N.Y.S.2d 391 (N.Y.Sup. Ct. 1995).

Transsexual prisoners are caught in something of a Catch-22. Access to adequate treatments -- therapy, hormones, or surgery -- often require asserting a medical need the denial of which would trigger an Eighth Amendment bar against cruel and unusual punishment. Transsexual advocates, however, cringe at this reliance upon the medical model, sensing with good reason that its use, among other problems, creates and perpetuates "an image of trans people as mentally diseased or somehow ill-fitted to participate in 'normal' society." The author argues that medical evidence is not an illegitimate strategy, but is rather "both justified and compelled by unique aspects of the prison context.... [As] long as courts adhere to the general principle that individual liberties should be restricted in prison and as long as they continue to construe this principle to require the Eighth Amendment's high standard of objective seriousness, then trans advocates will have to demonstrate that the care they are requesting is indeed serious and necessary and not merely preventive or elective. It follows, of course, that the best way to make such demonstrations is through the use of medical evidence." While conceding that, outside that limited venue other kinds of arguments may serve better, he stops short of marking a course that would keep these independent lines of argument from undermining one another, always a potential danger.

According to McCarthy, two strands of Title VII jurisprudence are headed for collision, with transgenders caught between them. He first describes the supportive ruling of Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), which allowed a male-to-female transsexual firefighter to proceed with a wrongful termination suit against the city's fire department. On the other stands Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2006), affirming an employer's right to impose a physical appearance standard on a female casino bartender who refused to comply with orders "to wear stockings and nail polish and to wear their hair 'teased, curled or styled" and to wear "face powder, blush and mascara,” as well as “[lipstick] . . . at all times.” McCarthy reasonably sees a conflict here, and worries that, because on "the one hand, Smith stands for the proposition that trans employees are entitled to the same basic rights as other employees [while on] the other hand, Jespersen tells us that employers may set strict, gender-based personal appearance guidelines," future legal battles clarifying the rights of transgenders are assured.

Millman provides a concise practitioner’s guide to recent statutory and case law on the issue of employment discrimination. Summaries are culled from New York, New Jersey, and California cases that utilize gender identity, sex, sexual orientation, and disability discrimination as litigation claims. The article goes on to provide advice to employers and briefly describes federal protections and developments in other jurisdictions.

In the hypothetical posed by the author, a male-to-female transsexual who has legally changed her birth certificate to reflect her newly recognized status becomes male again should she venture into Tennessee, which is not obliged to honor the Illinois birth certificate. Such inequities pile onto one another in quick succession, leading Newlin to propose a model act to help create a "seamless system for recognition, amendment, and declaration of a person's legal sex."

Contrary to what some might have expected, the review offered by Perifimos suggests that women's colleges are more comfortable dealing with female-to-male transsexuals than with male-to-female. Her major complaint is that such schools -- she provides specific information on Smith, Mount Holyoke, and Barnard -- have no explicit policies on transgender students, making them vulnerable to the inequities of case-by-case determinations. If nothing else, their application and enrollment is unnecessarily stressful because they do not know in advance how the schools will respond to their presence. Taking a proactive role in this area, writes Perifimos, "will ensure that colleges preserve their own missions as well as the dignity of transgender students."

Intersexed persons are born with external genitalia that are fully neither male nor female, creating problems for a system of "allocating rights on the basis of sex," especially in the areas of employment and marriage. Rellis contrasts the treatment of those born intersexed in the United States -- usually triggering emergency "corrective surgery aimed at 'normalizing' external genitalia to fit societal expecations" -- with those in the India, the hijras, a group she describes as "beginning to gain legal recognition in India when they self-identify as a third gender." The "E" mentioned in the title is one example, an official third-gender designation allowed (referring to "eunuch") for documents such as passports. The author urges reforms that ensure "a constitutional right to self-identify outside the gender binary based on the fundamental right to privacy and bodily integrity derived from the Fourteenth Amendment's Due Process Clause," and identifies some statutory efforts such as the International Bill of Gender Rights adopted by the International Conference on Transgender Law and Employment Policy as important first steps.

Spade begins with a critical overview of the inconsistent administrative decisions concerning gender: "policies related to gender markers on identification documents, policies related to placement in sex-segregated facilities, and policies related to the state provision of health care that is prohibited based on the gender on record for the person seeking coverage." He goes further to place this classificatory chaos in the context of the "War on Terror" and the resulting initiatives to standardize recordkeeping. Does gender, he wonders, really need to be tracked at all?