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."

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.

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.

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."

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.