The (Mis)Categorization of Sex in Anglo-American Cases of Transsexual Marriage

The United States’ promise to establish equality for all has been challenged by post-operative transsexuals seeking recognition in their acquired sex. The birth certificate is the legal gateway to changing other legal documents; but the process for changing the birth certificate varies widely from state to state. This lack of national uniformity makes post-operative transsexuals’ recognition of their acquired sex complicated at best and impossible at worst. This Note details the legal progression from non-recognition to recognition of post-operative transsexuals’ acquired sex in the United Kingdom and through the European Court of Human Rights. The Note goes on to explore the basis on which rights should be secured domestically for post-operative transsexuals, namely the Due Process Clause of the Fourteenth Amendment. Through an evaluation of the Supreme Court’s use of reason-borrowing, this Note provides a means to establish legal recognition for the acquired sex of postoperative transsexuals in the United States.