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9 Harv. L. & Pol'y Rev. 241 (2015)
Whither Lies the Self: Intersex and Transgender Individuals and a Proposal for Brain-Based Legal Sex

handle is hein.journals/harlpolrv9 and id is 241 raw text is: Whither Lies the Self:
Intersex and Transgender Individuals and
A Proposal for Brain-Based Legal Sex
Blaise Vanderhorst*
I. THE NEED FOR A BETTER STANDARD OF LEGAL SEX
The last few decades have seen remarkable progress towards greater
social visibility and legal recognition of the substantive rights of two minor-
ity groups: transgender1 individuals, those whose gender identity, expres-
sion or behavior is different from those typically associated with their
assigned sex at birth and the intersex2 For the former, this progress has
been marked by statutory and judicial developments increasing the availabil-
ity of medical treatment,3 expanding protections from discrimination in the
workplace,4 and easing the processes by which transgender individuals may
change their legal sex to correspond to their gender identity. In addition,
transgender issues have moved into the consciousness of far greater numbers
of average, not-involved-in-LGBT-activism Americans, as demonstrated
by transgender actress Laverne Cox's Emmy nomination and her appearance
on the cover of Time Magazine, both historic firsts for a transgender person.6
* J.D., Chapman University, Dale E. Fowler School of Law, 2013; B.A. in History, Uni-
versity of California, Santa Barbara. The author wishes to thank Professor Marissa
Cianciarulo, Professor Donald J. Kochan, and his classmate Nancy Sandoval for their invalua-
ble assistance in writing this article, Professor Sandra Skahen for mentorship and encourage-
ment throughout law school, and Ashley and Uncle Stevie.
' Transsexual is increasingly seen as a diagnostic category or else exclusive to those
who seek sexual reassignment surgery. As this article is concerned with the legal sex of all
persons who do not conform to societal gender expressions and calls for a standard of legal sex
premised solely on gender identity, transgender is the term used throughout the article. See
TransgenderTerminology, NAT'L CTR. FOR TRANSGENDER EQUAL. (Jan. 2014), http://perma.cc/
RXV9-XGBB.
2 An intersex person, using the most inclusive definition, includes anyone with a congen-
ital condition whose sex chromosomes, gonads, or internal or external sexual anatomy do not
fit clearly into the binary male/female norm. JULIE A. GREENBERG, INTERSEXUALITY AND THE
LAw 1 (2012).
3 See Jessica Jeanty & Harper Jean Tobin, What's in the ACA for Transgender People?,
HRC BLOG (Oct. 11, 2013), http://perma.cc/7K8B-85A6.
4 Macy v. Holder, No. 0120120821, 2012 WL 1435995, at *11 (Equal Emp't Opportunity
Comm'n Apr. 20, 2012) (holding that employment discrimination against an individual on the
basis of gender identity, change of sex, and/or transgender status is actionable under Title
VII of the Civil Rights Act of 1964).
5 See CAL. HEALTH & SAFETY CODE § 103426 (2014); see generally Megan Townsend,
Timeline: A Look Back at the History of Transgender Visibility, GLAAD (Nov. 19, 2012),
http://perma.cc/2WUT-ANQW.
6 Aleksandra Gjorgievska & Lily Rothman, Laverne Cox Is the First Transgender Person
Nominated for an Emmy  She Explains Why That Matters, TIME MAGAZINE, July 10, 2014,
available at http://time.com/2973497/laverne-cox-emmy/; see also Jason Hughes, 'Orange Is

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