Reflections from the heart
What Makes Gender?

by Mubarak Dahir
Lambda Publications

If you met Christie Lee Littleton on the street, you´d surely identify her as a woman.

If she went into the ladies´ locker room and took a shower, the other women in the room would scarcely notice her. There surely would be no panic.

Her husband of seven years certainly considered Christie Lee Littleton his wife, in every sense of the word.

But the courts say none of that matters. In a 2– 1 vote, a Texas appellate panel of judges says Christie Lee Littleton is a man. And always will be.

Why? Because Littleton born with one X and one Y chromosome, which are still contained in Littleton´s genetic makeup. Genetically, males have an X and a Y chromosome, and females have two X chromosomes.

Littleton, therefore, say the judges, is a man, period.

Never mind that Littleton, like thousands of transgendered persons in this country, felt from an early age that the biology of the body Littleton was born with was a mismatch with her gender identity. As soon as Littleton was of legal age, Littleton entered the sex–change program at the University of Texas. There, Littleton went through the now well–accepted protocol of changing from a man to a woman. Littleton took psychological tests and underwent intensive counseling. Littleton received hormones. And eventually, Littleton had surgery.

Later, Littleton met, fell in love with and married the man who was her husband for seven years. Her husband knew her story, and it did not affect their relationship. Because, after all, Littleton was now a woman, in every way.

This should be the end of the story, with Littleton and her husband living happily ever after. The end.

But unfortunately, Littleton´s husband died, from what Littleton believes was improper care from her husband´s physician. Accordingly, Littleton tried to sue the doctor.

But Texas law allows Littleton to sue the doctor only if she is the widow of the deceased.

In a clever dodge of a malpractice suit, the doctor´s attorneys have been arguing that because Littleton was born male, with an X and a Y chromosome, and because the sex–change operation did not alter the chromosomal recipe, Littleton is still a man. If Littleton is a man, the argument goes, then he was in a 7–year marriage with another man. But since Texas does not recognize same–sex relationships, Littleton´s marriage is not legally recognized, and Littleton cannot be the widow of the deceased. Therefore, Littleton has no legal rights to sue the doctor.

Oh, the Pandora´s Box of legal complications this ruling could have! First, it´s a slap in the face for transgendered people still struggling to get even a modicum of legal respect and recognition for their lives. But the ruling also flies in the face of recent court understandings about biology and society. And if transgender and gay and lesbian activists team up, it could even be used to shock the state of Texas into recognizing what would outwardly appear to be same–sex marriages.

Even amongst allies (such as the gay, lesbian, bisexual and transgendered communities) there has long been a debate about how to handle people who are biologically one sex, but live their lives as the opposite sex. For example, those who run the Gay Games have ruled, quite controversially, that individuals will compete in male or female events based on their outward biological traits. And even progressive workplaces struggle with how to provide shower and bathroom facilities, for example, to a biological man who lives life as a woman. Regardless of which side of the debate you fall on, it´s easy to understand why there is a question in such circumstances.

But once an individual has undergone the medical procedure, the debate usually fizzles out. It´s pretty damn hard to argue that a person who has been medically changed into a woman remains a man. Unless, of course, you have the superhuman power of "genetic vision," as a couple of judges in Texas seem to.

Apparently, such vision allows an individual to look at others and tell what pair of X´s and Y´s are in their gene code.

And in today´s high–tech world where scientists and social reformers are working side by side to defy old notions of both nature and society, the Texas ruling seems sadly anachronistic. Perhaps the most obvious area of the law where the simple arguments of traditional genetics have been nearly universally challenged is in child custody and adoption cases. I´m not just talking about the progressive states that allow gays and lesbians to adopt, or the places that rule that nonbiological partners in same–sex break–ups have legal rights to see children.

There is a huge body of legal opinions that clearly says biology alone cannot determine legal issues of a complicated society. What about the famous case in New York, where the fertilized egg of a Black couple was mistakenly implanted in the womb of a white mother? There, the court ruled in favor of the white woman, although simple biology (indeed chromosomal biology) would say otherwise. What about all the surrogate mother cases? What about the legal battles over when a hospitalized person is legally dead and a family can withdraw life support?

Though these cases may raise very different legal issues, what they all have in common is the notion that simple biological facts are often not enough to answer the more complex questions of human behavior.

And if the courts in Texas selectively refuse to acknowledge that when dealing with transgender issues, then Texan Phyllis Frye (a long–time transgender lawyer and activist herself) has some fun suggestions for helping the legal system get a grip.

Her suggestion: Male–to–female post–op transsexuals should marry biological women, and female–to–male transgenders should marry biological men. To the poor guy issuing the marriage license, it´s going to look like the wedding of a same–sex couple. But any Texas judge with "genetic vision" will know he´s marrying a chromosomal man to a chromosomal woman.

Mubarak Dahir receives e–mail at


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