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15 November 2006

Gender as a Personal Choice

Jim Greiner

Greetings from the job market for legal academics, which combines the worst aspects of the job markets of all other fields. Apologies for being slow to bring this up, but an article in last week’s New York Times (Tuesday, November 7, 2006, page A1, by Damien Cave) is worth a look. The subject area is recording gender in New York City records. The City’s Board of Health is considering a proposal to allow persons born in the City to change the sex as documented on their birth certificates upon providing certain documentation (e.g., affidavits from doctors and mental health professionals) asserting that the proposed gender change would be permanent. Previously, the City required more physical manifestations of a sex change before it would change its records.

Question: are we moving toward a world in which sex, like race, becomes a personal choice, at least as recorded in official records? Note that in the race context, the law can’t seem to make up its mind on this. The Census Bureau records self-reports only, and many modern social scientists consider race a social construct only, with no relevant biological component. But some existing statutes still define race in terms of biology (e.g., 18 U.S.C. § 1093(6)).

Second question: suppose we are moving toward such a world; what will it do to our efforts to enforce anti-discrimination laws?

Posted by James Greiner at November 15, 2006 1:51 PM