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The New Anti-Abortion Law — Bad News For Women’s Health and Doctor’s Ethics

In an earlier post I discussed the Supreme Court’s analysis of the so-called Partial Birth Abortion Act, concluding that the Court’s decision to uphold the Act was intellectually dishonest and inequitable. This post is about the purposes of the Act, as described by Congress, and the Act’s probable consequences for the practice of medicine and the health of women.

Understanding the Act requires some minimal understanding about abortion procedures. (This explanation is more or less lifted directly from my earlier post on the Carhart decision.) The Act targets the procedure used in essentially all abortions taking place after first trimester and before viability. (Viability is the point in pregnancy when, given the current state of medicine, a premature infant has a fifty percent chance of survival. At present, viability occurs around the 23rd week.) The procedure is referred to as “dilation and evacuation” or “D&E”. A D&E is performed by first dilating the patient’s cervix for a period from a few hours to a few days. The physician then removes the fetus, placenta and related material from the uterus through the cervix, and out of the body. Often, the fetus must be removed from the uterus in pieces. Sometimes, though, the fetus can be removed from the cervix intact (called an “intact D&E” by the Court). Because the fetus is not destroyed during the intact D&E process, the physician must ‘kill’ (the word used in the Act), the non-viable fetus. The loaded term “partial-birth abortion” is thus an obvious mischaracterization of this procedure. The nonviable fetus cannot be “born,” either partially (whatever that might mean), or otherwise.

The Act makes it a crime for a physician to knowingly perform an abortion using the following procedure:

1. The physician removes the intact fetus from the woman’s body to a particular point:

In a head-first position, to the point where the entire head is outside the woman’s body;

in a breech (foot-first) position, where any portion of the fetus past the navel is outside the woman’s body; and,

2. The physician then takes an overt act that kills the fetus.

(This is my summary of the Act. The full Act can be found here.)

The Act provides no exception to preserve the health of the woman undergoing the procedure.

The Act won’t stop a single abortion from taking place. Justice Ginsburg noted during oral argument, “[W]e’re not talking about whether any fetus will be preserved by this legislation… It doesn’t preserve any fetus because you just [terminate fetal life] inside the womb instead of outside.” The US attorney defending the Act agreed with Justice Ginsburg. In other words, in order to be compliant with the Act, a physician must terminate the fetus’ life prior to delivery, even in cases where the physician believes it is safer for the mother to do otherwise.

Whether an intact D&E’ is considered medically necessary depends on a number of factors, including the age and health of the woman, especially if the woman has an underlying medical problem; the condition of the fetus; and the sophistication of the medical facilities available. Under the Act, a doctor is no longer allowed to make this decision. With the Act, Congress has overruled the the physician’s medical judgment, as well as her ethical obligation to provide the best possible medical care. Is appears the Hippocratic Oath has joined the Geneva Conventions as “quaint” obligations our government has decided can be ignored.

The trade-off Congress made in the Act and the Supreme Court appears hardly rational: Physicians must choose between following the law, on one hand, or providing the best possible care to preserve the health of the mother. What exactly has Congress achieved in return? Nothing, it seems. Abortions will not be reduced. But the Act will make abortions more dangerous and more difficult to obtain. Some physicians will likely withdraw from the practice of performing intact D&E’s rather than risk criminal charges. The health of some women will be harmed as a result, because they will not be able to obtain the best possible care. And, perhaps most troubling, those seeking to limit reproductive rights have established that their political agenda can override concerns about privacy, personal autonomy, and women’s health.

Tom Joaquin

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Filed under abortion, Advocacy, Info, and Activism, feminism, Gonzales v. Carhart, Health, News and politics, News..., pro-choice, public discourse, reproductive freedom

The Lie at the Heart of Gonzales v. Carhart

(My source for the quotations and information is Justice Kennedy’s majority decision and Justice Ginsburg’s dissent in Gonzales v. Carhart. These documents can be found here.)

Tom Joaquin
The Free Lance

By now, most people are aware of the summary holding in Gonzales v. Carhart: for the first time since Roe v. Wade, the Supreme Court left standing a law proscribing a particular abortion procedure without an exception to safeguard a woman’s health. Standing alone, this is a terrible result, but understanding the rationale of the decision was made is more frightening still.

In upholding the “Partial-Birth Abortion Act” (referred to here as just “the Act”), the Supreme Court’s new majority drew upon old lies about the emotional fragility of women, and the need to protect them from their own decisions. The Court used this old myth to bypass forty years of precedent safeguarding reproductive rights. The Court allowed Congress to place political values over best medical practice, and to put women’s lives at risk. The Court’s willingness to put aside legal precedent and scientific fact in this case may encourage more attacks on constitutional rights in the future.

Understanding Carhart requires some minimal understanding about abortion procedures. The Act targets the procedure used in essentially all abortions taking place after first trimester and before viability. (Viability is the point in pregnancy when, given the current state of medicine, a premature infant has a fifty percent chance of survival. At present, viability occurs around the 23rd week.) The procedure is referred to as “dilation and evacuation” or “D&E”. A D&E is performed by first dilating the patient’s cervix for a period from a few hours to a few days. The physician then removes the fetus, placenta and related material from the uterus through the cervix, and out of the body. Often, the fetus must be removed from the uterus in pieces. Sometimes, though, the fetus can be removed from the cervix intact (called an “intact D&E” by the Court). Because the fetus is not destroyed during the intact D&E process, the physician must ‘kill’ (the Court’s word), the non-viable fetus. The loaded term “partial-birth abortion” is thus an obvious mischaracterization of this procedure. The nonviable fetus cannot be “born,” either partially (whatever that might mean), or otherwise.

The Court notes that many physicians testify that trying to remove the fetus intact is sometimes medically necessary and always preferred medical practice. Removing fetal material in pieces take longer, thus extending the time the patient must stay under anesthesia. Many small pieces of material raise the risk of uterine damage, as well as the possibility of post-surgical complications resulting from failure to remove all of the material.

The line drawn separating intact D&E’s from all others appears to originate with Congress and the Court. In any case, Congress finds the “intact D&E” procedure distasteful. Well, perhaps more than just distasteful. According to the Court, Congress says the intact D&E is a “gruesome and inhumane procedure that is never medically necessary and should be prohibited”.

Congress, however, cannot constitutionally pass a law with the primary goal of prohibiting an abortion procedure. As Justice Ginsberg points out in her excellent dissent, Congress must consider all that troublesome precedent about a woman’s right to choose, and the idea that a woman’s decision to bear a child is central to her “‘dignity and autonomy,’ her ‘personhood,’ ‘destiny,’ and her ‘conception of her place in society’”. According to over forty years of developed precedent, a law cannot constitutionally place “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

But there is a loophole: Congress can pass a law that makes it more “difficult and expensive to obtain an abortion,” as long the law’s primary purpose is not specifically to interfere with the right to have an abortion. For the Act to pass constitutional muster, Congress needs a convenient fiction about the Act’s purpose. Fortunately for Congress, the new majority in the Court is happy to oblige.

According to the Court, the Act is intended to protect “mothers,” who are emotionally sensitive and liable to regret their decision to have an abortion. There are no “women” in the Carhart decision. There are only ‘mothers, a group that includes women whose pregnancies were terminated.

The Court begins by adopting nostrums from Congress: “Respect for human life finds an ultimate expression in the bond of love a mother has for her child.” Because of the importance of this “bond of love,” the Court decides that, although there is “no reliable data to measure the phenomenon, it seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of self-esteem can follow.”

The Court then supposes, again without any factual support, that “some doctors may prefer not to disclose precise details of the means that will be used” for performing the abortion. The physician’s postulated failure to be frank about the procedure can compound already existing emotional difficulties: “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming human form.”

This overheated language distracts from real problems with the Court’s argument. First, the story about the emotional damage that can result from having had an abortion just isn’t true. In her dissent, Justice Ginsburg provides a long list of studies from respected sources debunking the “idea that having an abortion is any more dangerous to a woman’s long-term mental health than delivering and parenting a child that she did not intend to have.”

Secondly, if a woman does come to regret her decision to terminate her pregnancy, is it likely she would prefer to learn her abortion was performed by removing the fetus from her uterus in pieces, or that it was removed intact, the safest possible method

Finally, wouldn’t it make more sense simply to require physicians to inform women of the abortion method to be used along with other information currently required by law to be provided the patient?

The Court doesn’t discuss these issues because the truth is less important than upholding the Act and setting the stage for future cases. The old argument about protecting the life of the unborn doesn’t need to be raised anymore to attack abortion. The new argument that abortion should be done away with is based upon the offensive lie: Women are emotionally fragile, and might decide on abortion, even though abortion separates them from participating in the “ultimate expression” of “respect for human life.” They may later come to regret that decision, leading to emotional illness. Learning about how the abortion was carried out will further damage these women emotionally. Therefore the practice must be eradicated.

This argument is sufficient to prohibit one method of performing abortions. Is there any reason why it won’t work to ban others?


This is the first of two posts discussing the Carhart case. In the next post, I’ll discuss the mechanics of the Act itself, how it allows Congressional opinion to overrule science, and the danger this poses to the health of women.


Filed under abortion, activism, Advocacy, Info, and Activism, feminism, Gonzales v. Carhart, Health, inequality, News and politics, News..., pro-choice, public discourse, reproductive freedom

Q: When is a vibrator more dangerous than a gun?

A: When you’re selling one in Alabama.

According to a federal court decision announced yesterday (Valentine’s Day!), it’s perfectly fine for the state of Alabama to criminalize the sale of sex toys. Just to put this in context — 41 years after the Supreme Court decided it was unconstitutional to restrict the sale of condoms, the Court of Appeals for the 11th Circuit thinks it’s fine for Alabama to jail (up to one year for first violation) or fine (up to $50,000) anyone who gets caught selling as much as a dildo. (PDF of the statue is here.)

I don’t think anyone would argue that there is any harm worth criminalizing in selling sex toys to adults. No one’s being forced to do anything, there’s no economic harm, no harm to children. But the Attorney General of Alabama told the court that the law barring sales preserved “public morality,” and was, therefore, constitutional.

The AG’s “public morality” argument might have held up in 1999, but in 2003, the Supreme Court held, in Lawrence v. Texas, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” And that, one would have thought, was that. If public morality alone isn’t a sufficient reason for a law, then a law making it illegal to sell sex toys just has to be unconstitutional, yes? Well, no. The Court of Appeals decided that the Lawrence holding only applied to private behavior. So Alabama couldn’t make it illegal to own or use sex toys. But it can make it illegal to sell them. The court decided that selling sex toys was like prostitution, a commercial, public activity that can be punished under the law.

Let’s get back to my opening question, comparing the sale of guns with the sale of vibrators. Alabama is one of the easiest places in the US to buy a gun. There are no state laws requiring licensing, registration, child safety locks, a mandatory waiting period or a limit on the number of weapons that can be purchased at any one time. Maybe that’s one of the reasons Alabama has the 4th highest homicide rates in the US. So let’s take a look at Alabama’s moral restrictions on commerce. Someone sells ten assault rifles to a 16 year old who just walks into the shop without proof of parental permission? Perfectly alright. Someone sells a rubber duckie vibrator to a 40 year old woman at a sex-toy party in the buyer’s home?

Better close the shades.

Tom Joaquin, Esq


Filed under News..., public discourse, sex and the law, sex crimes, sexually oriented businesses

2006 Masturbate-a-Thon

Speaking of the goddess, Carol Queen, I encourage you to check out these links:

This one begins her narration of the recent Center for Sex and Culture-sponsored Maturbate-a-Thon held this year for the first time in the UK. Very exciting!

This link will take you to the Center for Sex and Culture itself. It was founded by Carol Queen and her amazingly kind, generous, not-to-mention brilliant partner Robert Lawrence and it’s a fantastic institution.

Carol, Robert, you rock!

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Filed under Advocacy, Info, and Activism, News..., sex, sexuality

Teenage “interns” – is there a line between work and socializing, and how do gender and age figure in to knowing when it’s okay to cross it?

This past weekend’s Sunday Styles section of the New York Times contained an article about teenage interns and the 30-somethings they work for. The article described the relationships as mutually beneficial, and as social in addition to work-related. It begins with a story about one 30-something woman, Rose and her 16-year-old “intern/best-friend-forever,” Will, at a sweet sixteen party for one of Will’s friends where someone suggests a game of Spin the Bottle.

Oddly, the article then did not turn into a moral panic piece about how older women are exploiting young men (and young women). Instead, even though at one point the article’s author puts “intern” in quotes, as if writing it with a wink and a nod, there is general approval for these arrangements. Will’s father is even quoted as saying that he’s glad Rose helps him out with all the ordinary chauffeur duty that parents of teens apparently have to do. This despite the fact that, as revealed in the article, Will sometimes sneaks sips of Rose’s alcoholic beverages at lunch.

We also learn that much of the time these interns work for free, that part of their appeal as “interns” is that they give their “employers” insight into youth markets so that those markets can be more thoroughly mined. We learn that for the most part the high schools these teens attend don’t offer credit for these “internships.” We learn that some “interns” are as young as twelve because “cross generational bonding is a natural part of any youth-oriented industry.” (That statement was made by the employer of the 12-year-olds — a firm called Buzz Marketing.)

Now, in an age where we express tremendous concern about online sexual predators (witness the incredibly popular Dateline series “To Catch a Predator”) how is it that this article doesn’t raise any of the same hackles? Mind you, I’m not opposed to age differences in all kinds of relationships. I just found myself wondering:

1. How different would this article have been if it had been profiling high school girls working for 30-something guys and hanging out socially together, playing Spin the Bottle and sharing margaritas? (It is interesting that the article, near the end, does include one story about an “intern” relationship that turned into a dating relationship, and that story involves a 16-year-old girl and a 21-year-old guy.)

2. Why does it seem okay to exploit teens for their labor and their access to markets but not to have sex with them?

3. Also, how does this “obsession with youth” feed the fantasies of older folks wanting to have sexual relationships with teenagers, and

4. How does that contribute to the impression that older folks aren’t attractive themselves?

Just something to think about this morning. No answers. Just questions.

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Marriage isn’t radical enough — why fight for it?

I’ve written way more about the same-sex marriage fights than I ever intended to write. And apparently I’m not finished yet. This morning an amazing thing happened. The New York Times reminded me of my own objections to fighting the same-sex marriage fight. Of course I’ve largely conceded those objections but I was so happy to see the argument acknowledged that I had to blog about it.

In today’s Sunday Syles piece, Anemona Hartocollis begins with a brief profile of a gay activist who believes the fight for same-sex marriage rights is misguided. His objection is that marriage is not radical enough. I absolutely agree.

Marriage is an institution that has, historically, been oppressive and limiting and not based on romantic or sexual love. It has more often, historically, been a way to preserve property rights and sexual rights for men and has depended on unequal divisions of labor which have disadvantaged generations of women. In the US it represents a legal obligation to remain monogamous, though of course many people shun that obligation. (And to digress for just a moment, isn’t it interesting that “monogamy” has come to refer only to sexual relationships while “polygamy” remains definitionally linked to legal marriage?)

If marriage is, now, about romantic love and sexual love and individual commitments made between partners, why should anybody need the state to sanction those vows? Certainly marriage does not confer significant long-term stability with so many marriages ending in divorce. Certainly many people find it difficult to remain “monogamous” in the sexual sense whether they are married or not. Why fight for what seems, perhaps, like a dying institution or one that relies on traditional, outdated, and limiting expectations about sexual behavior?

And yet…

And yet… the piece of paper that is a marriage certificate confers a great number of state-sponsored or state-supported rights and provides access to important resources. In this sense, marriage really is NOT about romantic and sexual love. Marriage is still the contractual arrangement that it has always been, but it is better understood as a contract between individuals and the state rather than between individuals and each other. And that access is currently exclusively the domain of people who are granted “heterosexual privilege.”

I am a great example of someone who benefits from heterosexual privilege without being heterosexual. I love, adore, am sexually attracted to men, women, and especially people who blur those categories in interesting ways. I am not “straight” but I benefit from heterosexual privilege because I am in a relationship with a man. I have been in relationships with women where I did not have the choice to marry or to reject marriage. I have been in relationships with men where I have had that choice. And twice I have chosen to marry.

My first marriage was an idealistic and failed attempt to renegotiate the traditional structure of marriage. We wrote vows that, if read carefully, disavowed any promise of monogamy, for example. There were many conflicts that caused the end of that relationship (and certainly being married did not prevent the end from coming). One conflict certainly involved our differing levels of commitment to living in a household that didn’t follow the mainstream script. And because our desire to marry was all about being in love with each other and with the idea of creating a radical marriage, when the radical marriage part didn’t work out, the “being in love” part was suddenly vulnerable to all of the other threats by which “being in love” is prone to being attacked.

When Will and I started our relationship we rejected the idea of marriage. It seemed unnecessary. We didn’t need the state to recognize our commitment to each other, we didn’t particularly want to follow the mainstream script. My family accepted our relationship as valid regardless of our marital status. Will’s parents wouldn’t promote us to a shared bed until we were married but we visited their household infrequently enough that sleeping in separate beds was hardly an unendurable trial.

We married for unromantic reasons, and it was that decision that made me again reconsider my own objections to the same-sex marriage fight. After my first marriage ended I had recommitted myself to rejecting institutions that were based on unjust privilege. If Will had been a woman we could not have married. Why should we take part in an institution that excludes so many people so arbitrarily? And, why take part in an institution that is all about legal obligations, really, and not about love?

As it turns out, the reason was “Exactly because it is all about legal obligations and not about love.” But not about Will’s obligations to me or mine to him. Those have not changed since we married. Nor has our love for one another. Rather we chose to marry because it clarified the state‘s obligations to us.

An event occurred in our relationship that made it suddenly very important to me that my position in Will’s life and his in mine be respected by the state, by Will’s children, and by our employers. I think it is wrong that marriage as defined in US society is the ticket to these protections. If marriage is, at its heart, a contract between individuals and the state, then why cannot any combination of people enter into that contract? I understand the need for the contract but I don’t understand the limitations placed on the number and gender of parties to it.

However, for as long as marriage-as-defined is the ticket, then we need to continue to fight for universal access. Same-sex marriage is a tricky issue. It retains the monogamy part of the traditional arrangement and it accepts the continued disadvantaging of singles. In my ideal world, things like health care and pension benefits and hospital visitation rights, for example, would not be linked to marital status. The first two would be universally provided and regarding the third individual wishes would always be respected. But I’ve come to believe in incremental steps.

In other words, I would like to see marriage-as-we-know it by and large rejected. But people can only reject something they are free to choose, and right now many people are not free to choose marriage in the first place. So, the fight need to be either to eliminate marriage altogether, or to expand the definition of marriage so that it is more inclusive. The later road seems, for now, to lead to greater equality and justice for. But it should not be seen as the end of the road!

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Filed under News..., public discourse, Same-Sex Marriage, sex, sexual orientation, sexuality

A new “rationale” for opposing same sex marriage?!

This just in! The House of Representatives failed to find enough votes to pass a proposed amendment to the Constitution restricting marriage to one man and one woman. And this despite the introduction of a brand new rationale for opposing same-sex marriage: Peace in the Middle East!

According to the New York Times, today, Georgia Republican Phil Gingrey said that maintaining traditional definitions of marriage “is perhaps the best message we can give to the Middle East and all the trouble they’re having over there right now.”

Really. He said that.

I admit I’m puzzled and don’t know what he means, exactly. Is he saying that the best message we can give to the Middle East is that we’re increasing support for discrimination in the United States? Is he saying that the best message we can give to the Middle East is that we’re too busy trying to find ways to restrict access to marriage to pay attention to “all the trouble they’re having over”? Or, is he actually saying that the best message we can send to the Middle East is that we are becoming more sexually and socially conservative? If that is the message he thinks we should be sending, perhaps we ought to ask him what other “traditional” family policies he’d like to introduce or re-introduce.

We know he’d like to roll back abortion access (on his blog he calls himself a “pro-life” OBGYN) Perhaps he’d like to go back to a more “traditional” time when women could not own property, and did not have a right to their own wages? (Keep women financially dependent on men and divorce will decrease!) Would he prefer to adopt the Saudi policy of forbidding women to drive? There are, after all, many ways to limit freedom.

I wrote a few entries ago about the symbiosis between opposition to same-sex marriage and support for sexist gender roles. Representative Gingrey’s statement would seem to further support a connection between the two positions.

It may seem like a purely symbolic vote, today, given that the Senate rejected this amendment back in May, but it’s worth noting that 236 House members voted in favor of the amendment (187 voted against, 1 voted “present” and 9 didn’t vote), and that the supporters acquired 9 more votes than they had two years ago when they tried this the last time.

Retaining “traditional” marriage in the U.S. is not going to bring peace to the Middle East. I can’t imagine even Rep. Gingrey thinks that this vote has anything to do with helping to resolve the crises in the Middle East. But if this is part of an effort to move back to more “traditional” gender roles we all need to be paying very close attention because the effort isn’t likely to end with the marriage amendment.

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Filed under Gender, News..., public discourse, Same-Sex Marriage

Homophobia and sexism

I remember the first time I read Suzanne Pharr’s book Homophobia: A weapon of sexism. It was back in the early 1990s and I was an undergraduate taking a class called “Philosophy of sexuality.” It was one of those moments when an argument instantly made sense to me. Basically, the argument is that homophobia serves not only to ensure privilege for heterosexuals but it also keeps men and women “in their places” by making them afraid of being labeled as sexual outcasts. Hence the power of the taunt “fag” among boys in schoolyards. Such taunts are certainly used to keep boys conforming to norms of masculinity and they work on the rest of us by encouraging us to stick to our carefully scripted gender roles, which are linked to gendered institutions which privilege men over women.

Why bring this up today? Because I read a post on Slate that revived this argument to explain why opposition to same-sex marriage might not be grounded in homophobia, but instead might be grounded in a fear that “traditional gender roles” have been terribly undermined and need to be restored.

Richard Thompson Ford, in the Slate piece, argues that the resistance to changing gender roles is largely about symbolism and psychological attachment to clearly delineated gendered roles like “bride,” “groom,” “husband,” and “wife.” Those symbolic and psychological attachments are there, sure, but to focus on them misses the larger issue: that is institutional power and privilege, not just for heterosexuals, but for men. “Husband” and “wife” are not just psychological constructs, they are real social expectations. To change them is to change the built-in inequality that they depend on. Once marriage roles are no longer linked to gender roles, questions of division of labor and power that translate into time and money are open for renegotiation on a grand scale. If two men, married and raising a family, can manage the housework, take care of a child, and bring in the income all without a “wife,” then there is no reason that a man and a woman, married and raising a family, can’t divide up the same labor equally instead of falling back on a gendered division of labor that puts much of the responsibility for child and household care on the wife, making it difficult for her to pursue her career with equal focus as her husband pursues his and thus undermining her own economic power and independence.

Of course I hope that you support same-sex marriage because sexual orientation should not be a source of privilege or disadvantage. But even if you don’t support it for that reason, support it because same-sex marriage is a step toward gender equality.

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Filed under Gender, News and politics, News..., public discourse, Same-Sex Marriage

Dr. John Money

I learned in this morning’s New York Times that Dr. John Money died on Friday.

Dr. Money was a well-known medical psychologist, most famous for his involvement in the sex-reassignment case of a toddler in the late 1960s. If you’ve taken an Intro Psych or Intro Sociology or Sociology of Gender course you’ve probably read about the case. (It’s been mentioned in the Gender chapter of just about every Intro Soc text book I’ve ever used) This was the case where an 8 month old boy, one of a pair of twins, had his penis burned off during a circumcision. After many consultations, one of them with Dr. Money, the parents decided to go ahead and raise this child as a girl and began a long series of surgeries and treatments aimed at doing so. The story was variously hailed as a success and a failure, and in late adolescence the young girl requested reassignment back to male status. Living then as David Reimer, he married, adopted a child, and then a few years ago, tragically, committed suicide. (See this Slate piece about David Reimer’s suicide by John Colapinto (author of a book about David’s complicated life).

I wholeheartedly support people’s right to have their bodies reassigned to a gender that fits them, and for the work Dr. Money did that helped advance our capability to think about and perform such work I am grateful. But I am deeply troubled, and always have been, by the assumption that physical genitalia and gender identity have to match.

There was no reason to suspect, in the case of the infant who ultimately became David Reimer, that his gender identity was at all in question. There was only the assumption that since he no longer had a penis he could never be happy as a boy or a man. He would not even, necessarily, have been sterile (in that his testicles were not affected) though certainly he would not have been able to have ordinary heterosexual intercourse. By making him a girl, the ultimate cultural message being sent was this: an other-than-biologically-perfect penis disqualifies a person from being a good boy/man, but an other-than-biologically-perfect uterus, vagina, clitoris, etc. is just fine for a woman. It was, really, yet another sign that women are understood to be secondary, inferior, not as important. That as a woman this child would never be able to bear a child apparently troubled Dr. Money and others less than that as a man this child would not be able to easily father a child. That as a woman this child would probably have difficulty with orgasm and intercourse troubled them less than that as a man the child would not have had a normal penis.

We have advanced our technology to the point where people who are incapable of reproducing on their own can do so with the assistance of sperm donors, egg donors, in vitro fertilization, surrogates, etc. We have advanced our notions of family and sexuality to include single parent families, same sex parents, and so on (though, granted, not with the full legal status of the hetero-married family). I wish we would advance our understanding of gender so that it becomes, for once and for all, distinct from our physical bodies. Imagine the freedom in that. Even if many people still fell into gender categories that matched their physical bodies, the rest of us would be free to identify as we like. Instead of focusing on man/male and woman/female we could expand our categories to include the kinds of sex we like, whether or not we are willing/able/interested in reproducing, and the kinds of social roles that fit us.

I don’t mean to dismiss the ways that our hormonal, physical and genetic makeups influence us. But they don’t determine us and to the (possibly large) degree that they do influence us, there is a great deal of variety — much more than our two-gender dichotomy allows for. In fact, I recently took a “brain sex” quiz that indicated in my own case that I outperform men on some “male brain” tasks, outperform women on some “female brain” tasks, and don’t perform as well as the average man or average woman on other tasks. My ultimate score put me at 0, the exact center of the score distribution (apparently men cluster around 50 in one direction and women around 50 in the other direction). On many variables where there is a gender difference the variability within a gender category is greater than the difference between the average man and the average woman.

So lets let people choose their gender and lets let them decide whether or not their bodies and their genders need to match. And let’s not assume what a child’s gender is going to be as soon as we see whether or not it has a penis. I don’t have children, myself, and probably won’t, but if I did, I wish I’d have the courage to do what Lois Gould imagines in X: A fabulous child’s story and not determine the child’s gender. If asked on the street whether my child was a boy or a girl I wish I’d have the courage to say, “I don’t know. Possibly neither. We’ll have to wait and see.”

Fantasy? Perhaps. But these are my thoughts on the morning I read of the death of Dr. Money.

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Homophobia (gay panic??) is not a defense!

PlanetOut reported that legislatures in two states, California and New York, are considering ways to undermine the use of the “gay panic” defense in cases of violence against lesbians, gay men, and transfolk.

I’m certainly glad to read that, and I hope that the other 48 states follow, but the proposed legislation, at least in New York, does not go nearly far enough. According to the article, the New York proposal is modeled on the California legislation and revolves around the instructions given to juries when they are deciding a case. The article quotes language in the New York bill that would give juries this instruction: “Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias includes bias against the victim or victims or witness or witnesses based upon his or her race, color, national origin, ancestry, gender, religion, religious practice, age, disability, gender identity or sexual orientation.”

There are two problems. First, the instruction should, I believe, be worded much differently. Rather than instructing the jurors not to let their own biases get in the way of their decision making, it ought to instruct them not to let the biases of the defendants be seen as justification for their alleged crime. In this case the instruction could read, “Homophobia and heterosexism are not mitigating circumstances.” That would be much clearer!

The second problem is much harder to address, and it, too, is identified in the article through a quote attributed to California’s state senator Carole Midgin. No matter how you instruct a jury, it will be hard for them, especially when faced with prosecutors who are using homophobia as a defense, to ignore their own internalized homophobic reactions. She says, “The truth is, hate is taught. Intrinsically we permit it… We can’t pretend it ain’t real. There is panic. There is revulsion. I think we have our work to do.”

One way to work against bias is to reframe it to show how unreasonable it is. These “gay panic” defenses tend to be used in situations where a straight man (or group of men) feels threatened by the presence of a person he perceives to be gay or transgendered and even perhaps perceives to be “coming on to him.” He lashes out, allegedly out of fear/revulsion/panic, beating the crap out of the gay man (or, in the case that sparked the action in California, killing a transgendered person) and then his hatred and rage, framed as “panic” are used as an argument that he was operating under diminished mental capacity. This may not get him off altogether, but it may effectively be seen as a “mitigating circumstance” and get him a lesser sentence. But what if we turned the tables. What if a woman, after being hit on by a man, were to shoot him and claim that his actions panicked her to such a degree that she couldn’t control herself. Assuming he had not been stalking her, abusing her, or otherwise terrorizing her we would never allow that as a defense in court. Men need to be shown that being hit on is an annoyance and not an assault (or they need to start reframing their own come-ons!).

Even more importantly, we need to work constantly to root out the sources of that fear and hatred, intensely felt by some men, that apparently causes them to act so violently. Granted, it’s a tough problem. The dominant culture in the US is still pretty heterosexist. We need to expand the spaces for people to express their sexual identities openly so that homophobic people see that in most ways most gays, lesbians, and transfolk are an awful lot like them. Yet that is incredibly tough to do (and risky) when advances by non-straights into the “mainstream” seem to result in backlashes. The more the law protects sex/gender minorities, the braver we can be but the risks are still present. We need more than the law. We need allies who also call people on their intolerance. We need active support for a more open sexual culture. It’s a tough path but it’s a matter of basic civil rights and equality!

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