Posted by: captainfalcon | March 28, 2011

A Conceptual Flaw in the Case for Full Faith and Credit Recognition of Transsexual Marriage

The argument that the Full Faith and Credit Clause gives rise to a pro tanto requirement that all states accept the sex designation on your birth certificate for marital purposes is only as plausible as a particular explication of its premise that, in Shana Brown’s words, “The sex designation on an individual’s birth certificate determines an individual’s sexual identity for virtually all legal purposes.”

The argument is fairly straightforward. It begins by observing that the Full Faith and Credit Clause requires states to give full faith and credit to “the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const. art. 4, § 1. Paradigmatic cases of the Clause’s compelling recognition of other states’ legal acts include adoption, and valid and final judgments. For example, In re Edwards, a Virginia case, held that because Pennsylvania’s adoption statutes are not contrary to Virginia public policy the “status of the adoptive child is to be determined under Pennsylvania law,” though Virginia law governing the right of the adoptive child to inherit controls. In re Edwards, 77 Va. Cir. 351  (Va. Cir. Ct. 2009). And, in Wright Mach. Corp., the Supreme Judicial Court of Massachusetts held that it was precluded by the Clause from hearing the same claim that had been dismissed at summary judgment first in New York and, later, (also for full faith and credit reasons) in Delaware. Wright Mach. Corp. v. Seaman-Andwall Corp., 307 N.E.2d 826, 830 (Mass. 1974).

The argument continues: like an adoption, or a final and valid judgment, a birth certificate is comprehended under the Clause: it is a public record. Just as one state’s designation of a child as adopted or a judgment as final compels another to recognize the adoptive child or precludes it from hearing a claim, so too one state’s designation of a person as male or female compels another to recognize that as a “fact.” Thus, if a state reissues somebody’s birth certificate with a new sex designated thereon, all other states are pro tanto required to accept the new designation for marital purposes. After all, as Brown observes, “[t]he sex designation on an individual’s birth certificate determines an individual’s sexual identity for virtually all legal purposes.”

The problem is with the term “determines.” Adoptions and final judgments are both legal constructs. There is some judicial or administrative act that creates an adoptive relationship. Similarly, there is a judicial act that constitutes a final judgment. The designation of a child as adopted creates his adoptive identity; the issuance of a final judgment creates a new scheme of legal rights and duties. By contrast, the designation of sex is arguably closer to the designation of age. True, there are reasonably well-supported theories that suggest one’s sex (in the relevant sense) is partially socially constructed (whereas, to my knowledge, nobody’s yet proposed the same about age). But this is irrelevant to the distinction, which is that sex, like age, is not legally constructed. Adoption and final judgments, on the other hand, are legal constructs.

Thus, to decide what weight the Full Faith and Credit Clause requires another State give to the sex designation on a birth certificate it is worth looking to cases involving the full faith and credit implications of age designations. Here’s one case, albeit from federal court, that is on point. Kappler v. Shalala involved Kappler’s claim for social security benefits. Illinois had issued a birth certificate for him when he was sixteen declaring his year of birth 1929. His baptismal records declared his year of birth to be 1930. After finding that a birth certificate issued after Kappler had turned five was not “preferred evidence” (entitled to a high level of deference) under the regulations promulgated by the Social Security Administration, the Administrative Law Judge held that the baptismal record was more convincing than the delayed birth certificate and denied Kappler his retirement benefits.

Kappler appealed to the district court arguing, inter alia, that the AJL was required, under the Full Faith and Credit Clause (and its implementing legislation 28 U.S.C. § 1739), to give full faith and credit to the age designation on his birth certificate, and so to accept it. The district court rejected his argument in a footnote. It observed that because “full faith and credit is shorthand for the same credit that such a document is given under Illinois law – and that means mere prima facie evidence . . . the recitals in the document are subject to rebuttal.” Kappler v. Shalala, 840 F.Supp. 582, 587 (N.D. Ill. 1994). The AJL thus was only required to give the designation prima facie probative weight, not to treat it as determinative.

Assume the Kappler court’s treatment of the full faith and credit implications of an age designation is standard, so that an age designation is to be accorded the same credit in any state that it would be given in the issuing state. Further assume that Illinois gives typical credit to a birth certificate, so that birth certificates usually serve a rebuttable evidentiary purpose with respect to legal findings of age.

On these assumptions it follows that age is treated very differently under the Full Faith and Credit Clause than are adoption and valid and final judgments. Whereas the latter are accorded absolute deference* – they “determine” qua constitute the status of an adoptive child, or of a claim for purposes of res judicata – age designations are treated as having (some) probative value; they “determine” qua confirm somebody’s age. In short, age designations do not construct a legally cognizable reality; they give evidence of it.

What follows if I am right that – as realities that are not legally constructed – age and sex should be treated similarly for Full Faith and Credit Purposes? It is tempting to say that what follows is that a sex designation on a post-operative transsexual’s reissued birth certificated is to be taken as prima facie evidence of his or her sex. In other words, it is tempting to say that we have here a win for the good guys; there is a presumption in favor of, e.g., a postoperative transsexual’s being allowed to marry even under statutes restricting marriage to a union between two people of different sexes. (Or, put differently, the Full Faith and Credit Clause gives rise to a pro tanto requirement that all states accept the sex designation on your birth certificate for marital purposes.)

But this is too quick. The problem is with the fact, already underscored, that unlike legal acts that construct legal realities (adoption and valid and final judgments), age designations merely confirm preexisting legal realities. This means that a reissued birth certificate with a different sex designation has a confirmatory purpose only if the preexisting legal concept sex is not of the biologically-fixed-from-birth variety. If it is of that variety, on the other hand, a reissued birth certificate cannot even have the (prima facie) probative value accorded to an age designation, because it does not function to confirm a preexisting legal reality. Instead, it aims to construct one. This is not a function evidence can perform.

* True, there are exceptions to the deference given at least to statutory designations. For example, pre-Loving v. Virginia a valid interracial marriage did not have to be recognized in a state where interracial marriages were against “strong public policy.” (There is no similar exception for judgments.) This does not change the point, though, which is that a legal construct is either accorded deference (absolutely) or, per an exception, it is accorded no deference at all. By the nature of the thing, there are no degrees of adoption or marriage.



  1. If you wished to deny transsexuals from marrying by arguing that the gender on the (amended) birth certificate is not sufficient must be holding one of three opinions.

    You could assert that the birth certificate is factually wrong. This is very closely related to paternity fraud cases – it’s far from unheard of for a child’s birth certificate to list a father, and DNA evidence clearly indicates to someone else is the father. It’s settled law that states can choose to prefer the DNA evidence if they want to. The mind spins a little, however, at subsequent implications of this (as if that is the legal stance, then it must be applied consistently – a man who gets a sex-change operation to become a woman, then wishes to marry another woman, must be issued a marriage license by the state even if the state refused to recognize same-sex marriage, and so forth).

    Alternatively, you could argue that “gender” has different meanings when applied to birth certificates than when applied to marriages. That would be most justifiable if a state itself re-issued birth certificates to transsexuals and denied marriage licenses despite those birth certificates – then it’s not really a Full Faith and Credit issue. However, this does implicitly make a state’s case look a little weaker if the state itself refuses to re-issue birth certificates in similar cases (it’s not a logical knock-out, but it is suggestive that the state is being disingenuous about it’s real objection).

    Finally, you could claim that “gender” has different meanings in the two states. To adapt your analogy: like a conflict between the common western age (starts at 0 at the instant of birth, incremented by one each birthday) with East Asian age reckoning (starts at 1 at the instant of birth, incremented by one each Lunar New Year):
    It’s fairly clear that the person’s physical age is the exact same in either case; correct interpretation of laws requires considering the context in which the term is used. It’s always a little shaky when you argue that one word which is generally given only one definition actually has two distinct definitions depending on context, but I think this is the strongest argument. It recognizes that neither “male” nor “female” seems to purely and neatly encapsulate a transsexual, and that there are different definitions you could choose which would lead to different correct labels. One could argue from context that when a specific law requires “one man and one woman” it is referring to “one genetic-and-phenomenological man and one genetic-and-phenomenological woman;” when a state re-issues a birth certificate they are acknowledging that the gender field on their certificate refers to phenomenological-only gender, and when a state refuses to re-issue such a certificate they are acknowledging that on their birth certificates the field refers to genetic-only gender.

  2. The problem with the approach you prefer is that the Full Faith and Credit Clause requires states to tolerate the same concept designating two different conceptions. So when one state declares a child “adopted” all other states must treat it as such for the purposes of their laws, even if the other states’ conception of adoption (the process for adopting, the duties and responsibilities adoption creates, etc.) are different. Likewise, then, if one state declares (and thereby, by law, makes) somebody “male” all other states must treat him as such for the purposes of their laws, even if the other states’ conceptions of sex are all different. (No doubt there are limits to this e.g. if one state uses “male” to refer to “railroad car” – but that’s a case of “male” referring to two completely different concepts, as opposed to two different conceptions of “male” existing in two different states.)

    There’s no reason to think, on the other hand, that Full Faith and Credit requires one state to accept that another state’s designation of somebody as male serves an evidentiary function when their respective conceptions of “male” are different. Unlike in the adoption case, it is not as if that state’s legal creations / devices are not given effect. (This would not be so, however, if the designation of “male” served a constitutive, as opposed to evidentiary, function in the reissuing state.)

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