Law and defining identity

The family is a fascinating institution in US politics. While many Americans understand it as both natural and private, families relate to the state, on the federal, state, and local levels.  The state’s involvement with the family at the moment of birth highlights the ways that family and identity are not simply natural. Rather, how modern Americans think of our identities and our family relationships rely in part upon the state’s recognitions.

Defining gender at birth

The state of Utah is considering legislation to define an individual’s sex at birth permanently. Right now, Utah, like many states, allows people to amend their birth certificates for a variety of reasons – to change a name, to correct errors, and to change (or add) a gender marker. A proposed law would require all birth certificates to identify a child as male, female “or, if the sex cannot be factually determined at birth, undetermined.” This law would prohibit changing the marker later in life to conform with a change in gender identity. It defines both male and female around possession of testes and ovaries respectively. Additionally, the law mentions identifying “external anatomical characteristics that appear to have the purpose of performing the natural reproductive function” of either providing and delivering sperm to a “female recipient” or “receiving sperm from a male donor.”

While this law is extreme, Utah is not alone in controlling how individuals’ birth certificates identify them.  Eighteen US states allow gender marker changes to birth certificates, but only if sex reassignment surgery has been performed. Fourteen will change a birth certificate based on a doctor’s verification. Three so far, however –Kansas, Ohio, and Tennessee – refuse to change birth certificates to conform with an individual’s gender identity (Idaho’s ban on changes was invalidated in March 2018).

Birth certificates in history

Birth certificates may not seem like the most political of documents, but they are both more political and more recent than many people realize. Registration was uneven and most records were privately kept by families in the nineteenth century. When Congress created the Census Bureau in 1902, the Bureau encouraged more standardized and comprehensive birth registration. While the initial push was to get better data on families and population, birth certificates quickly became entangled with emerging scientific racism. As immigration swelled, elite white policymakers feared the effects of declining birth rates among “native” white women and the influx and high birth rates among the racially and ethnically undesirable newcomers.

Walter Plecker, Virginia’s registrar of vital statistics from 1912 through 1946, recognized the potential for birth certificates as a tool to classify and manage populations. He published an influential pamphlet in 1912 in the American Journal of Public Health calling for standardized and simplified birth certificates that reported, among other things, whether or not a child was born in wedlock and both the color and race of the child, so as to “learn also as to Indian, Japanese, Chinese, etc.” He would go from this initiative to advocate for Virginia’s Racial Integrity Act, which defined anyone with any black ancestry as black, expanding the reach of Virginia’s regime of segregation and prohibition on interracial marriage (a category of miscegenation, or interracial sexual intimacy).

The problem of defining race

Despite the efforts of Plecker and white supremacists in other states to define race and write it indelibly into a person’s life through designation on birth certificates, race proved to be slippery. Peggy Pascoe’s research on race and miscegenation in the west illustrates that, despite a firm belief that race was natural and readily recognized, courts often found themselves struggling to square folk understandings of race with scientific definitions that did little to identify racially ambiguous people.

State actors determined to uphold racial separation relied on the legal system, but the challenges of proving race beyond a reasonable doubt began to expose the absurdities of the one-drop rule. In Alabama, both the state supreme court and the legislature adopted a one–drop rule after several defendants being tried for miscegenation questioned the charges because prosecutors had not adequately proven their races. \ Alabama prosecutor charged the same man, Jesse Williams, with miscegenation three times in the early 1930s, but in three successive attempts, he was unable to convince the appellate courts that he had properly established Williams’ black ancestry.  Ariela Gross has also shown how legal definitions of race often did not square with ordinary understandings, causing problems when racial identity was a critical element in legal proceedings.

In 1948, the California Supreme Court rejected this enterprise, striking down the state ban on interracial marriage almost two decades before the US Supreme Court would do so nationally. Roger Traynor wrote for the majority in a case involving a mixed race couple’s challenge to the denial of a marriage license.  While he acknowledged that regulating marriage was a proper function for the state, he demolished California’s defenses of the statute. Among his other dismissive remarks, he wrote that attempting to determine race on the basis of traces of ancestry was “absurd” (a word he used twice). He explained, “If the classification of a person of mixed ancestry depends upon a given proportion of Mongolians or Malayans among his ancestors, how can this court . . . determine what that decisive proportion is? … Nor can this court assume that a predominance in number of ancestors of one race makes a person a Caucasian, Mongolian, or Malayan within the meaning of the statute, for absurd results would follow.”

Back to the future

The struggles over race illustrate what was at stake in writing definitions into law. Efforts to define race legally were fundamentally ideological. The legal system of white supremacy required the capacity to draw clear lines with significant consequences, and supremacy itself depended upon the belief that race could be determined in a definitive way. As scientific advances increasingly called into question biological arguments for racial inferiority, supporters of white supremacy became increasingly desperate to write racial differentiation into law. The wave of one-drop rules adopted in the 20th century illustrate this process well.

Legislation that attempts to cement biological definitions of sex is not the same, but it also represents an effort to fix an ideology of natural and incommensurate differences between the sexes. Utah’s legislation grasps at an evaporating scientific certainty about sex as a clearly dual phenomenon. As with race, scientific efforts to define sex have increasingly rejected rigid categories. The legal effort to impose them despite this uncertainty demonstrates an attempt to maintain not just gender roles, but gender hierarchies.

The debate over transgender rights is happening in a different political moment than the period in the late 1960s that saw the demise of anti-miscegenation laws. But if anti-miscegenation laws are any guide, the erosion of scientific acceptance of rigid categories of sex will ultimately undermine attempts to maintain the legal and ideological infrastructure that support them. The destruction of the anti-miscegenation legal regime did not destroy racial ideologies, but many people trapped by these legal categories found freedom in their destruction. We may hope that at least this will happen for transgender individuals as arguments for the capacity to define one’s own identity ultimately move forward.

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