This is a somewhat old story, but completely badass and fascinating. A post-operative, male-to-female transgender person, Andrea Jones, went to a Tennessee Department of Safety (TDS) office to get the sex designation on her drivers license changed from male to female. The TDS personnel refused because the state law would not have permitted them to make that change under the circumstances. Fair enough.
But then it got interesting. Andrea went out into the TDS parking lot and removed her shirt, exposing her breasts. That resulted in her arrest for public indecency, a crime for which males who expose their breasts cannot be convicted.
Aside from what I view to be perhaps the most blatant example of unequal protection remaining in the United States today (the prevelance of laws banning women from doing something men may do, go topless, based only on their sex and not necessarily on the size of their breasts...a topic for another blog post), this story presents an interesting question: under what circumstances should the state grant a request to change one's legal sex designation? Perhaps another question should be, under what circumstances must the state change a person's sex designation, regardless of whether they request a change or not?
As the local news reported on the Andrea Jones story:
In response to our inquiry, the Tennessee Department of Safety says they'll change the sex on a license "if an applicant presents a doctor's statement indicating that a full sex change has occurred and the procedure is complete."
"Full sex change???"... What is that? I'm aware of no procedure capable of altering the chromosomal sex designation from XY (male) to XX (female), or vice versa. You can remove or alter genitals. You can add something close to a penis or vagina, but not the real thing.
Genitals are just one part of someone like Andrea's transformation. Must a male-to-female transgender get breast implants? Or start taking female hormones? Or are we really just concerned with the presence or absence of a penis? Because I can tell you one thing, Andrea's surgery did not give her a "vagina."
According to the World Professional Association for Transgender Health, Inc. (WPATH), medically necessary sex reassignment surgeries include "complete hysterectomy, bilateral mastectomy, chest reconstruction or augmentation [...] including breast prostheses if necessary, genital reconstruction (by various techniques which must be appropriate to each patient[...])[...] and certain facial plastic reconstruction." Of course, WPATH has an interest in preforming procedures like these, and their standards are probably bias in that regard.
I haven't been able to find the Tennessee law or regulation that requires TDS to get a doctor's varification before granting a sex diesgnation change on a driver's license. In fact, Tenn. Code. Ann § 68-3-203(d) explicitly prohibits altering a birth certificate following gender reassignment surgery: "The sex of an individual shall not be changed on the original certificate of birth as a result of sex change surgery."
This is a really interesting issue for too many reasons to list in this blog post. One that sticks with me though is the impact a state's designation on sex might have on federal discrimination laws. There's no federal law defining males or females. Would Andrea be a male under federal law in some states, but a female under federal law in other states that would be more inclined to recognize her new sex?