Sunday, May 3, 2009

Law and Sex

In its quest to rise above an animal past, humanity developed a concept of sexual identity. This identity attributed symbolic meaning—conscious or mental significance—to being born with either a penis or vagina. The conceptualization of sexual identity grew rapidly under patriarchy, which identified activeness, goodness, and intelligence with maleness and opposing traits with femaleness. But this effort sowed the seeds of its own destruction. For as science ultimately focused on the mental seat of sexual identity, it could find the absolute difference reflected in the genitalia. Instead science found a continuum of brain sex.

Science has thus deprived law of one of the fundamental pillars of sexual apartheid—the age-old belief that men and women are absolutely differently natured. It now remains to be seen whether genitalia and reproductive roles alone can justify the state’s interest in maintaining our prevailing apartheid of sex.

Society has four legitimate, somewhat overlapping reasons for classifying persons: (1) allocation of rights and responsibilities, (2) maintenance of civil order (morality), (3) identification of its members, and (4) aggregation of demographic statistics (census). All four of these factors are used to justify the legal requirement to sex-type persons. However, on closer inspection each of these four factors pre-supposes that brain sex follows genital sex. When one accepts the scientific reality of a continuum of brain sex far beyond any male or female categorization, it becomes absurd to justify classifying persons simply on the basis of their genitals.

Women’s Work or a Man’s Job

Beginning at least in Greco-Roman times, the rights and responsibilities of a society’s members were based upon their status as slave or free, and female or male. Of course, most rights and responsibilities went to free men, although free women had more rights than slaves. The justification for the allocation of rights among men and women was not their genitals. Instead it was believed that men’s active nature led them naturally toward roles of leadership, voting, management, and defense. Similarly, women in Greece were largely cloistered not because of their vaginas per se, but because it was thought that their passive nature led them naturally toward housekeeping and baby nurturing.

Faced with matriarchal (woman-dominated) cultures that contradicted the Greek ideology, such as Celtic women warriors and a few Mediterranean women leaders, monotheistic patriarchy developed that notion that women were inherently evil descendants of Eve’s beguilement of Adam. The rationale for rights-based sexual classification then evolved to “God decreed” that men should manage all life’s affairs that women could not be trusted. Those who violated this proscription, such as cross-dressing “passing women” were dealt with harshly. Joan of Arc, who favored male apparel, was given the choice to cease wearing men’s clothes or be burned at the stake. She chose to die on her feet, transgendered to the end.

The rise of the abolitionist movement for displaced Africans coincided with nineteenth-century pseudoscientific research to the effect that women were less intelligent than men because of an allegedly smaller cranium. Hence when abolitionist women began agitating for their own right to vote, they were told that they lacked the mental maturity to exercise their franchise intelligently. In those days a justification for sex-typing persons as either male or female would be to ensure that mentally deficient persons (females) did not disrupt the purity of an election.

Until very recently in the West, and still in much of the rest of the world, a fundamental reason for the state to justify sexual classification is that rights to civil power are different for men and women. Today, however, it is accepted in principle by the world community that rights to civil power generally, and the right to vote in particular, should be the same for both sexes. So what “rights and responsibilities” reasons are there to continue classification of people by sex?

There are two remaining areas in the West where the state claims a need to differentiate rights and responsibilities based on sex: occupational hazards, including military duty, and incarceration. In both cases it is alleged that frailties of women necessitate special treatment. The claims are suspect.

Women have shown an ability to do every job a man can do, including in combat. In the late 1970s the armed services performed a variety of comparative gender combat tests. The tests showed equal performance of commensurately trained men and women in a seventy-two-hour test of normal field combat conditions (MAXWAC test), in a thirty-day field exercise involving war games (Reforger Exercise), in a guerilla warfare and airborne assault exercise (Operation Bold Eagle), and in the “heaviest noisiest job in the army”—rapid loading and firing of artillery howitzers. Women lose less time on active duty than men, despite occasional pregnancies and abortions, mostly because of much lower desertion and AWOL rates. Year after year more and more military positions are opening up to women, and the trend can only accelerate as all-volunteer armies scramble for a shrinking youth population. It is clearer today than ever before that the military would operate no less effectively if they never asked, and weren’t told, the sex of their recruits.

Concerning civilian jobs with occupational hazards, it is often argued that women are not as tall or as heavy or as strong as men. This argument is bankrupt for several reasons. First, many high-tech combat jobs are better occupied by smaller people, because of space limitations. Second, many women are actually taller, heavier and stronger than many men. The Biology Data Book reports that among American eighteen- to twenty-four-years-olds, excluding exceptionally tall and short persons, women’s heights ranged from 151 to 173 centimeters, while men’s heights ranged form 164 to 184 centimeters. Essentially, taller-than-normal women are bigger than shorter-than-normal men. Why should those women be excluded, when those men are not? Why does the sex of the soldier matter at all? Finally, a similar “height and might” argument was raised for keeping women out of combat positions during the Vietnam War. Yet the Vietnamese won that war with male soldiers who, on average, were shorter than the average American woman. Apparently “height” does not make “might.”

Another concern raised is that sex typing is necessary to ensure that women do not take jobs that might be hazardous to embryos. The simple answer to that objection is that if there is a reason to protect unborn children from environmental hazards, then the grown-up children (all adults) should also be protected from those same hazards.

With regard to incarceration, it is claimed that sex-separate prisons are needed either to protect women from rape or to prevent childbirth under conditions of imprisonment. For example, in the 1994 Supreme Court case of Farmer v. Brennan, a male-to-female transsexual inmate who still had a penis sued the government, alleging “cruel and unusual punishment” for placing her in a male prison, where she was raped repeatedly. Justice Ruth Bader Ginsburg asked, “What about a young man with a slight build?” Indeed, rape is all too usual, but no less cruel, for incarcerated men in a men’s prison and for incarcerated women in a women’s prison.

The solution to sex and prison is strict supervision, solitary confinement for sexual assault, and education. Classifying people by sex so that they can be incarcerated accordingly has done nothing to prevent jailhouse rape. A multisexed prison environment may, in fact, be more rehabilitative in that it better resembles the real world.

The concern about childbirth in a multisexed prison is readily resolved with mandatory, injected contraceptives for all inmates—with either antiandrogens (suppress sperm) or progesterone (suppresses ovulation) assigned based on medical exams. This would not repeat the horrid forced sterilizations of prison inmates that occurred in the 1930s. Instead there are implantable drugs that temporarily suppress the ability to have children. Upon release from prison, the implants could be removed. While female contraceptive implants are well known, implantable nifedipine—a common cardiac medicine—has been shown to work on men by preventing the sperm’s ability to penetrate an egg cell. Implanting all inmates, regardless of genitalia, would significantly reduce the chances of an accidental pregnancy.

The “rights and responsibilities” of a society’s citizens offer no justification for state sex typing of its citizens. Most sex-based distinctions in civil rights were dropped in the West over the past century. Child custody distinctions are now decided not on the basis of the sex of the parent, but on the interests of the child. Those few remaining sex distinctions in employment, combat, and imprisonment are anachronisms that have no logical basis.

Marriage and Morality

A second kind of justification for the state’s need to classify all people as either male or female is that marriage can only be a relationship between opposite sexes. Marriage, it is claimed, is the foundation of family, which in turn is the bedrock of society. It is argued by heterosexists that if people had no state-defined sex, than same-sex marriages could occur, and such marriages could undermine morality and civil order in several ways: sodomy would be encouraged, birth rates could fall and children could be presented with homosexual parental role models.

To assess the validity of morals-based justifications for sexual classification, we must ask again, what is meant by sex? If sex means the nature of persons, then the concept of opposite sex is meaningless, for as shown in chapter 2, science has aptly demonstrated that mental sex is a continuum of possibilities, not a dichotomy. Aside from sociolegal efforts to force people into one of two sex roles, no child has oppositely brain-sexed parents. There are no such things. Every individual has a unique sexual identity, and each two-parent family is composed of two such unique sexual identities. Indeed, scientists have recognized that the mind is far more unique than a fingerprint. Dr. Roger Sperry, the Nobel laureate who uncovered left- versus right-brain functional specialization, concluded “the individuality inherent in our brain networks makes that of fingerprints or facial features gross and simple by comparison.” The concept of opposite brain sex really has no intrinsic meaning; what is probably meant is oppositely brainwashed sex.

If oppositely sexed marriage means opposite genitals and reproductive tracts, then we must ask why such a requirement is necessary. Only two answers have ever been offered, aside from the nonanswer “This is always the way marriage has been.” The first substantive answer is religious: that one or another font of religious orthodoxy condemned cogenital relationships as sinful. The second substantive answer is sociobiological: that cogenital marriages would not be procreative and would hence lead to the end of the species.

The religious justification flies straight in the face of human rights and is rendered moot by marriage-like contractual arrangements that are increasingly popular. In no other area of activity is the secular state permitted to proscribe a secular arrangement—such as a “same sex” civil marriage contract—based on a religious justification. It is embarrassing to a rational mind that more than two hundred years after the U.S. Constitution declared that the state “shall impose no religion,” states are constitutionally allowed to ban same-sex marriages using thinly disguised religious justifications. More scurrilous still was Congress’ passage in 1996 of the Orwellian-titled “Defense of Marriage Act,” withholding federal recognition of any marriage not between a man and a woman. These are the laws, such as those supportive of slavery, that peg societies to archaic times.

In any event, the legal equivalent of same-genital marriage can be established by private contract. The partners to a marriage need only sign contracts that establish most of the same sets of rights and obligations that are established automatically under marriage law. So not only is the religion-based marriage justification for sex-typing citizenry contrary to basic human rights, it is also easily undermined through private contracts. It is also said that sex typing is necessary to avoid sodomy. But it never has. Indeed, sex studies have shown that sodomy is popular among heterosexual couples as well. And even with sexual apartheid, most American states have dropped their sodomy laws.

Overpopulation renders rather absurd the sociobiological argument that assurance of procreation is the reason the state must dual-sex its citizens. What is more incredulous, however, is that this argument is the strongest one the state has for sex-typing its citizens. Nevertheless, the argument has ancient roots.

From at least Greco-Roman times, and especially under monotheistic patriarchy, the principal role given to women was procreation. “God formed her body to belong to a man, to have to rear children …. Let them bear children till they die of it; that is what they are for,” proclaimed Martin Luther. Women were ordinarily pregnant from puberty until they died from childbirth complications. This ensured male control of society. As we have only recently emerged from monotheistic patriarchy (in some parts of the world), and have only recently given some women control over childbirth, it is not surprising that the law enshrines oppositely sexed marriage as a way to keep women pregnant. Rosalind Miles, in her trailblazing book The Women’s History of the World, concludes as follows:

If she could rescue herself from the endless cycle of sexual activity, pregnancy, childbirth, lactation, pregnancy, then personal growth and social identity were possible. If sex ceased to carry the dire consequences of unwanted pregnancy, social catastrophe, even death in childbirth, then women could no longer be seen as sinning, sinful and justly punished. If every woman got hold of these ideas, along with the control and disposal of her own body, what price the patriarch and his power.

In the age of science and family planning, it is obvious that marriage need not result in childbirth. Were childbirth still the reason for marriage, then postmenopausal marriages would be illegal and nonprocreative marriages could be annulled in secular fora. Neither is the case. The sociobiological argument that state sex typing is needed to ensure procreative marriages is simply a decadent holdover from earlier stages of patriarchy. The thesis is not applied consistently and is not in earth’s interest of zero population growth. Encouragement of procreation, like encouragement of religiously blessed forms of sexual intercourse, is a morally bankrupt justification for maintaining an apartheid of sex. Since marriages do not have to be procreative, and since population growth is no longer in the state’s interest (or could be accomplished with immigration), there is no secular reason to restrict marital rights on the basis of the pair’s genitals. Accordingly, the state has no marriage or morals reason to require people to be either male or female.

Looking for Sex

Two final justifications offered for state sex typing of its people are the state’s need to identify people (1) individually and (2) as members of composite groups (demographics). The first argument can be disposed of summarily. Knowing the genitals of a person is of no aid to police in identifying someone. Age-old regulations against cross-dressing have been stricken down as void either for vagueness or as an impediment to freedom of expression. A “man” need not legally look like a “man.” In modern times, Social Security numbers, fingerprints, and even DNA are vastly superior methods of identifying persons. At best genitals exclude only half the human race—clearly not much help in identifying a person.

Although the reason given for enacting laws against cross-dressing was that they would prevent criminals from hiding, their real purpose was simply to maintain patriarchal control. If someone has already committed a crime and is on the run, that person is unlikely to be too concerned about violating the local cross-dressing ordinance! Most of the thousands of local anti-cross-dressing laws were probably inspired by that great font of sexual apartheid, the Old Testament, Deuteronomy 22:5 in particular: “The woman shall not wear that which pertaineth to a man, either shall a man put on a woman’s garment; for all that do so are abominations unto the Lord thy God.”

In Houston, Texas, there was an anti-cross-dressing law on the books up through the late 1970s. Passed in 1904, the law (insisted the police department) was needed to prevent criminals form hiding out as women. But some local transsexuals noticed that the only people ever harassed under the law were them and a group of lesbian women hanging out at the Roaring 60’s club in fly-front jeans. It turned out that the head of the vice squad developed some misogyny after his wife left him for a woman. Any set of fly-front jeans on a woman made him see red. It is true that elimination of sex typing will make it impossible to enforce any cross-dressing ordinance. Our law enforcement officers undoubtedly have better things to do than to serve as fashion police.

It is hard to argue persuasively that the government needs to know everyone’s sex to find them, if necessary. But the government also claims it needs to know people’s sex for statistical purposes. As an offshoot of affirmative action-type policies, it is allegedly necessary to identify persons as male or female for demographic entitlement reasons. Only through such sexual identification, it is claimed, can the government be sure that women are not being discriminated against.

The demographic argument fails, however, because it is classification itself that creates discrimination. Forcing the collection of demographic statistics simply perpetuates the age-old fallacious separation of people into men and women. The best way to cure sexist discrimination is to attack the problem at its root—the sexist classification of people based on their private anatomy.

Nor is it clear that the government statistics are of much value. The government has changed it racial classification categories every ten years since 1890—and more people than ever, over twenty million Americans in 1990, are checking “other” or “multiple.” In 1890 census takers were admonished to carefully separate five races: Whites and four types of Negroes (blacks, mulattoes, quadroons, and octoroons). Forty years later the government decided there were nine races: White, Negro, Mexican, Indian, Chinese, Japanese, Filipino, Hindu, and Korean. Ten years later, faced with Mexican-American lobbying that they were not a race, that category was dropped. When government demographers decided to merge Indians from India into the White race, the Association of Indians in America lobbied successfully to block this: had the merger succeeded, people from South Asia would have lost access to minority business set-asides. The 2000 census had 63 different combinations of races to choose from.

Sex is even much more malleable than race—as individualized as our fingerprints. If we weren’t told that we had to be male or female, then many people would be “other.” Racial categories are already an affront to mixed-race kids. Sexual categories are an inhibition to gender explorers. The time has come for lobbying to eliminate all government race and sex information collecting. The Constitution orders a census of the people, not of their minds.

Olympic Masquerade

Recently a new quasi-governmental justification for sex typing has arisen: the need to ensure strict compliance with sex segregation in sports, especially world-class athletics. If people were not sex-typed at birth, then how could we be sure that women competed only against other women, and men against men? Would not many people with penises masquerade as women in order to have an edge in the fame and fortune that accompanies athletic success? These and similar arguments are raised in support of strict sex testing of all professional athletes, especially in connection with the Olympics.

Sex testing in international athletics began in 1966, when female competitors at the European Track and Field Championships were required to parade nude in front of a panel of physicians. The resulting humiliation was offensive, and at the 1968 Mexico City Olympic Games physical inspection was replaced with the “sex chromatin” test. This procedure involved swiping some cells off the surface of the inner cheek and checking for the presence of a second X chromosome. About one in five hundred women will not pass this test, and many of those women have suffered severe humiliation upon being disqualified for “not being female.” All international female athletes today must possess a “feminity certificate” that testified to their acceptability as women in accordance with international criteria.

In 1991 the International Amateur Athletic Federation (IAAF) came up with a new approach to ensuring compliance with sex segregation in sports. The foundation admitted that previous chromosome testing was unfair to people with atypical chromosomes and to transsexuals and would hence-forth be abandoned. In essence the IAAF, representing sports medicine specialists from around the world, declared that our sex is not determined by our chromosomes. Instead of chromosome counts, the IAAF decided to determine the sex of women during the direct inspection of voided urine that is part of the drug testing required of all athletes.

Dr. Jean Wilson of the University of Texas commented on the new standards in the February 1992 issue of the Journal of the American Medical Association. She observed:

In the approximately thirty years of sex testing at athletic events, no case of masquerading has been documented. The real consequence has been the exposure of subjects with disorders of human intersex to publicity (and even ridicule)…. The new system will not resolve the issue for persons with other types of intersex status, and it is predictable that these individuals will continue to be subjected to the same discrimination and ridicule as before. This reform represents only a first step forward in the change that is needed, namely, the abolition of sex testing in athletic competitions.

In a world free from the apartheid of sex, there would be no sex testing because there would be no sex-segregated athletic competition. Superficially this might seem to disadvantage women, because taller, stronger, more muscular men might win all the prizes. In fact, sex-segregated athletics exists to avoid male humiliation at losing to women. Throughout history women were not allowed to compete in sports at all. The prevailing ideology was that female bodies were good only for carrying men’s food, water, and children. To have women participate with men at sports would be contrary to their passive nature (polytheistic patriarchy), a sacrilegious affront to male dominion (monotheistic patriarchy), or potentially injurious to their childbearing ability (scientific patriarchy). It is only during living memory that women have been permitted to compete in sports.

Separate is never equal. The segregation of women into sports competition with lower expectations than exist for men serves only to lower achievement and to preclude people with vaginas from the highest-paying sports awards. Sex-blind competition would be fairer than it is today if the competition occurred in objective weight- or height-based categories rather than on genital configuration. Objective categories would be fairer than what exists today because countries whose population is of a lower average height or weight than those of other countries would have a fair chance at gold medals in their own category. The boxing world, for example, has come up with an exhaustive list of competitive categories (below) with the goal of keeping contests “as fair as possible.” Sex-blind competition would not need to have as nearly as many categories to ensure fairness.

When women first ran the Boston Marathon in 1964 the best time was an hour and a half behind the best male time (men had been running the course since 1908). Twenty years later the two sexes’ times differed by only eleven minutes. Similar trends exist in Olympic track and swimming events. Professor Anne Fausto-Sterling of Brown University notes that “if the gap between highly trained male and female athletes were to continue to close at the current rate, in thirty to forty years men and women would compete in these sports on an equal basis.” Supporters of sex segregation argue that the average woman has but 85 percent of a size-matched male’s upper body strength and 93 percent of a size-matched male’s lower body strength. They claim that competition will never be fair with these constraints. What they neglect to consider is that athletes are not average people in the first place. Furthermore, the average statistics have been collected from women who have been given much less opportunity to develop their physical strength than men as a result of gender socialization. In a similar vein, the U.S. Public Health Service reported in 1981 that the average height for American males was 69.1 inches if their ancestry was European and 68.6 inches if it was African. Yet these average statistics have not impeded African American excellence in sports requiring exceptional height and skill, such as basketball. We have not thought of setting up special sports competitions for Asians, even though they are, on average, less tall than Caucasians. (The average Japanese man has about the same weight and height as the average American woman.) So why separate sports for women? Fortunately race segregation in athletics is over. Sex segregation should follow that course.


Competitive Category Maximum Weight
Light flyweight 108 lbs.
Flyweight 112 lbs.
Bantamweight 118 lbs.
Super bantamweight 122 lbs.
Featherweight 126 lbs.
Junior lightweight 130 lbs.
Lightweight 135 lbs.
Light welterweight 140 lbs.
Welterweight 147 lbs.
Light middleweight 154 lbs.
Middleweight 160 lbs.
Light heavyweight 175 lbs.
Heavyweight 175+ lbs.


None of society’s four reasons for classifying people into two sexes based on their anatomy withstand modern analysis. Instead it appears as if society’s four reasons are weak attempts to justify a sexual apartheid that science already decreed absent in the nature of persons, that is, in the mind.

The sociolegal classification of people as male or female made sense when it seemed true that men and women were two differently natured beings. But once the mind was shown to be sexually continuous, genital differences alone cannot logically justify state-controlled sex typing of people. Genital differences do not support different civil rights for “men” and “women” or provide a useful method for identifying citizens. Genital differences need not be declared to ensure the morality of marriage in a secular society or the absence of discrimination in a democratic meritocracy. Genital differences do not need to be declared in order to ensure fair competition in sports. Weight/height categories will accomplish fairness without regard to sex.

Our current apartheid of sex, the legal separation of people into males and females, has no logical basis whether sex be defined in terms of mental nature or physical anatomy. There are no two brain sexes—each person is brain-sex unique. While there are two basic types of genitals and reproductive tracts, they give rise to nothing that mandates a state need to declare such private anatomy.

The prevailing paradigm, or worldview, that people are male or female has failed because the seat of sexuality, the mind, has proven to be gender continuous, not dimorphic (either/or). The only possible new paradigm of sexual identity is that people are neither male nor female, but of individual gender across an infinitely wide continuum.

Counting Cyberfolks

Around the time some decades hence that census takers and marriage makers stop asking our sex, they will face a profound question: which instantiation of a person is the person and which is someone else? “Instantiation” means a temporary or permanent form adopted by a person’s beingness – their major memories, feelings and ways of thinking about life. Suppose MRI technology continues to advance to the point that all of the neural connections in our brain can be mapped onto software (MRI scanners are increasing in resolution and processing speed at an exponential rate that makes this realistic within the lifetimes of most readers of this book). In this case, when the software saw, through a video connection, someone we knew it would feel the same thing we felt when our brain processed an image of that person. In other words, “mind-uploading” technology makes it possible to duplicate yourself outside your body. That duplicate (or triplicate, …) of yourself is a new instantiation of yourself.

The moment there is a new instantiation of you it can begin a separate life. It will have experiences that the original self does not have. On the other hand, it could be arranged that one or all of your instantiations synchronize regularly such that the experiences of one are the experiences of all. In this case, we will have crossed into the transhuman domain of “one mind, many forms.”

The non-original forms need not all be chunks of software restricted to cyberspace. With extensions of the regenerative medicine technology being used today to grow skin, blood vessels and organs it will be possible to grow an entire fresh body outside of a womb and to write into its vacant brain the synchronized “mindfile” derived originally from an MRI scan of your brain. Ectogenesis, the growth of a body outside of a womb, would produce an adult-sized person in just 20 months if the fetus continues to grow at the rate it does for its first six months. If that is too incredible, consider the rate of advancement in robot technology. Today’s robots can successfully drive cars, fly planes, play violin and help doctors. Tomorrow’s will also have skin so soft you’d think it was flesh, and faces as persuasive as a Pixar animation. Such “bodyware” forms will come plug-and-play ready for your synchronized mindfile.

Why would anyone want two or more bodies with a single synchronized brain? First, to ensure they kept living if one body prematurely died, a concern that is especially appropriate to those who are in dangerous professions. Second, to savor more of life’s many pleasures by surmounting the frustration of “I can only be in one place at one time.” Be it toilets, phones, TVs, cars, computers or homes, it is remarkable how humans quickly get over their gratitude to have just one of something, and soon hanker for multiples.

Transhumans welcome “one mind, many forms” the way transgenders welcome “one mind, many genders.” Just as society’s enumerators adapted to multiple races, they will adapt to multiple sexes and ultimately to multiple forms. Solutions will be found to ensure transhumans are limited to “one mind, one vote” just as solutions are being developed to enable same genital couples to live as a family. The law is famously creative in re-articulating its precedents to support what is happening in the real world.

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