Mixed Race Studies

Because of Intersex: Intersexuality, Title VII, and the Reality of Discrimination “Because of… [Perceived] Sex”

New York University Law Review of Law & Social Change
Volume 34, Issue 1 (2010)
pages 55-121

Ilana Gelfman, Skadden Fellow
Greater Boston Legal Services

The federal doctrine of sex discrimination in employment depends on the underlying yet unstated assumption that sex is binary: one is either a man or a woman, and there is no other possibility. The existence of intersex individuals challenges this assumption. This article asks how Title VII doctrine can be applied to intersex employees. In answering, the Article considers (1) the ramifications of the ever-developing definition of “because of . . . sex” in Title VII jurisprudence as applied to sexual minorities and (2) the implications of Title VII doctrine regarding mixedrace individuals for our understanding of how the law treats (and should treat) individuals “in between” the categories. The article moves beyond previous work, which suggests that intersex individuals be protected as a third sex category under Title VII, because that work only reinforces the exact sex categorizations that should be undermined by any serious examination of intersexuality. Instead, the article proposes a new model for protection against sex discrimination in employment—that of discrimination “because of perceived sex.”

Table of Contents

• ABSTRACT
• INTRODUCTION
• I. TITLE VII AND INTERSEX INDIVIDUALS: THE CONFLICT BETWEEN DOCTRINE AND REALITY
  • A. Title VII’s Binary Conception of Sex
  • B. Intersexuality Challenges the Binary
  • C. A Conflict Between Doctrine and Reality
• II. IN SEARCH OF A DEFINITION: “BECAUSE OF…SEX” AND SEXUAL MINORITIES
  • A. The First Generation: The “Plain Meaning” of Sex
  • B. The Second Generation: Sex Stereotyping
  • C. The Third Generation: Discrimination Against Transgender Individuals
  • D. Moving Forward: Implications for Intersex Individuals
• III. TROUBLE WITH CATEGORIES: ANTI-DISCRIMINATION LAW AND MULTIRACIAL PLAINTIFFS
  • A. A Brief History: Law and the Multiracial Individual
  • B. Federal Anti-discrimination Law and the Multiracial Plaintiff
  • C. “In Between” the Categories: Multiracial and Intersex Plaintiffs Compared
• IV. DOCTRINAL POSSIBILITIES: CATEGORIZING INTERSEX INDIVIDUALS FOR THEIR OWN PROTECTION
  • A. Why Protect Intersex Individuals at All?
  • B. Maintaining the Traditional Categories of Male and Female
  • C. Adding a Third Category: Acknowledging Intersexuality
• V. RECONCEPTUALIZING SEX DISCRIMINATION: PERCEIVED SEX
  • A. What Is Perceived Sex?
  • B. Application of the Doctrine
• CONCLUSION

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Measures of Equality: Social Science, Citizenship, and Race in Cuba, 1902-1940

University of North Carolina Press
November 2003
256 pages
6.125 x 9.25, 8 illus., notes, bibl., index
Paper ISBN  978-0-8078-5563-8

Alejandra Bronfman, Professor of History
University of British Columbia

In the years following Cuba’s independence, nationalists aimed to transcend racial categories in order to create a unified polity, yet racial and cultural heterogeneity posed continual challenges to these liberal notions of citizenship. Alejandra Bronfman traces the formation of Cuba’s multiracial legal and political order in the early Republic by exploring the responses of social scientists, such as Fernando Ortiz and Israel Castellanos, and black and mulatto activists, including Gustavo Urrutia and Nicolás Guillén, to the paradoxes of modern nationhood.

Law, science, and the social sciences—which, during this era, enjoyed growing status in Cuba as well as in many other countries—played central roles in producing knowledge and shaping social categories in postindependence Cuba. Anthropologists, criminologists, and eugenicists embarked on projects intended to employ the tools of science to rid Cuba of the last vestiges of a colonial past. Meanwhile, the legal arena created both new freedoms and new modes of repression. Black and mulatto intellectuals and activists, working to ensure that citizenship offered concrete advantages rather than empty promises, appropriated changing social scientific and legal categories and turned them to their own uses. In the midst of several decades of intermittent racial violence and expanding social and political mobilization by Cubans of African descent, debates among intellectuals and activists, state officials, and legislators transformed not only understandings of race, but also the terms of citizenship for all Cubans.

That no black or mulatto person or persons shall hereafter be permitted to be sworn or give evidence in any court of record, or elsewhere, in this state, in any cause depending, or matter of controversy, where either party to the same is a white person.

—5 Laws of Ohio 53, approved January 25, 1807

The Other Loving: Uncovering The Federal Government’s Racial Regulation of Marriage

New York University Law Review
Volume 86, Number 5 (November 2011)
pages 1361-1443

Rose Cuison Villazor, Professor of Law
University of California, Davis

This Article seeks to fill a gap in legal history. The traditional narrative of the history of the American racial regulation of marriage typically focuses on state laws as the only sources of marriage inequality. Overlooked in the narrative are the ways in which federal laws also restricted racially mixed marriages in the decades before 1967 (when the Supreme Court invalidated antimiscegenation laws in Loving v. Virginia). Specifically, during the American occupation of Japan after World War II, a combination of immigration, citizenship, and military laws and regulations led to restrictions on marriages along racial lines. These laws also converged to prevent married couples, many of whom were White American soldiers and local Japanese women, from living in the United States together. Accordingly, this Article claims that the confluence of immigration, citizenship, and military laws functioned as a collective counterpart to state antimiscegenation laws.

By unearthing this neglected history, this Article seeks to deepen the conventional account of the public regulation of mixed marriages. As the Article reveals, racial barriers to marriage were far more pervasive than previously acknowledged. Contrary to the familiar chronicle, racial restrictions on marriage occurred through federal laws, were enforced by federal officials, took place beyond state borders, and effected distinct harms on interracial couples whose experiences have largely escaped legal and scholarly inquiry. Recovering this lost history thus provides a more complete story of antimiscegenation regulation. Moreover, it draws attention to the largely undertheorized role that immigration law played in preventing interracial marriages and provides insight into contemporary debates on federal involvement in marriage regulation.

• INTRODUCTION
• I. FEDERAL EXCLUSION OF RACIALLY INADMISSIBLE WIVES
  • A. The Conventional Narrative of Antimiscegenation History
  • B. The Story of John and Helene Bouiss
  • C. Bonham v. Bouiss: Between Wife and Country
• II. DISENTANGLING THE FEDERAL ANTIMISCEGENATION REGULATORY SCHEME
  • A. Citizenship Law and Race
  • B. Immigration Law, Racial Inadmissibility, and Construction of a White Nation
  • C. Military Marriage Regulations
• III. THE CONVERGENCE OF FEDERAL LAWS FACILITATED BARRIERS TO INTERRACIAL MARRIAGES ABROAD
  • A. The War Brides Act
  • B. Immigration Inadmissibility as a Basis for Denying Marriages to Japanese Spouses
  • C. Immigration Law’s Bar Against Racially Inadmissible Wives
• IV. BOUISS AS THE OTHER LOVING
  • A. Bouiss and the Amendments to the War Brides Act
  • B. Congressional Recognition and Remedy of Obstacles to Interracial Marriages
• V. THE CONSEQUENCES OF THE FEDERAL ANTIMISCEGENATION REGULATORY SCHEME
  • A. Immigration Law’s Promotion of White Supremacy Through Marriage Restrictions
  • B. Extraterritorial Antimiscegenation Regulation
  • C. Country and Citizenship Versus Wives and Children
  • D. Mixed-Race Children and Lack of Citizenship
• VI. CONTEMPORARY IMPLICATIONS
• CONCLUSION

“Except under very unusual circumstances, United States military personnel, and civilians employed by the War Department, will not be granted permission to marry nationals who are ineligible to citizenship in the United States.”

—U.S. Army, Circular No. 6

INTRODUCTION

On May 9, 1946, Helene Emilie Bouiss, a half-Japanese, half-German woman, and her husband, John Bouiss, a White American soldier, arrived in Seattle, Washington, aboard a military ship. The two were newlyweds, married by the captain of the ship just days before landing in Seattle. Their decision to marry prior to coming to the United States was significant. This is because six months earlier, Congress had passed the War Brides Act of 1945 (War Brides Act), which conferred on persons who were serving or who had served in the U.S. military the right to sponsor the expedited admission of their spouses to the United States. Thus, Helene‘s marriage to John, an honorably discharged soldier, provided the basis for her entry into the country. Or so they thought…

…D. Mixed-Race Children and Lack of Citizenship

One of the most compelling and troubling aspects about the deployment of immigration and citizenship law in the restriction of overseas marriage was the effect that the inability to marry in Japan had on the children of American soldiers. Children of American-Japanese couples, like their counterparts in the United States, faced discrimination in Japan and were considered inferior because of their mixed racial background. As the Supreme Court noted in Loving, bans against interracial marriage were rationalized as helping to prevent “obliteration of racial pride” and a “mongrel breed of citizens.” Mixed children evidenced the “corruption of blood” that would have destroyed the “quality of . . . [Virginia’s] citizenship.” Indeed, such fear compelled a judge in Louisiana to refuse to issue a marriage license to an interracial couple as recently as October 2009. According to the judge, “[t]here is a problem with both groups accepting a child from such a marriage.” Ample scholarship has been devoted to the various social and legal problems that confronted mixed-race children. These problems included the illegitimate status of children whose parents were legally prohibited from marrying.

The federal regulation of interracial marriage similarly led to a generation of out-of-wedlock children in Japan, who were referred to as “GI babies,” “Occupation babies,” or “half-half babies.” As already explained, many American soldiers were prohibited from marrying their Japanese girlfriends. Other couples chose to marry without the military’s approval. In both situations, the relationships lacked the official recognition of a valid marriage. As a result, children of these American-Japanese couples were considered illegitimate. To be sure, the precise numbers of illegitimate Occupation babies whose parents either unsuccessfully sought to marry or married without the official approval of the military are unknown. Indeed, one scholar noted that the U.S. military prohibited both military and Japanese officials from conducting a census of Occupation children…

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Critical Legal Theorizing, Rhetorical Intersectionalities, and the Multiple Transgressions of the “Tragic Mulatta,” Anastasie Desarzant

Women’s Studies in Communication
Volume 27, Issue 2, 2004
pages 119-148
DOI: 10.1080/07491409.2004.10162470

Marouf Hasian Jr., Professor of Communation
University of Utah

This essay provides a critical legal analysis of Anastasie Desarzant’s defamation case. The author argues that the use of an intersectional approach to legal discourse allows scholars to see how race, class, and gender issues influenced the social construction of the “tragic mulatta” in key Louisiana judicial contests. While the essay acknowledges that many contemporary and historical audiences have remembered “Toucoutou’s” (Desarzant’s) racial transgressions, they have forgotten about how some of her neighbors rallied to her cause in the late 1850s.

In recent years, a number of communication scholars have been interested in explicating some of the rhetorical strategies that have been used by feminists and other social agents who have resisted multiple forms of societal oppression (Demo, 2000; Dow, 1997; Shome, 2000; Squires & Brouwer, 2002). I would like to extend these insights by looking at how some women of color and their allies dealt with complexities of Louisiana slavery laws in the antebellum South. By looking at some of the textual arguments and public performances that appeared in Desarzant cases of the late 1850s, I hope to show how racialized subjects dealt with some of the regulatory powers of a judiciary that was dedicated to the preservation of the powers of whiteness. At the same time, I want to illustrate some of the rhetorical strategies that were used in these legal contests, so that we can see how “racial passing” was “both a social enterprise and a subject of cultural representation” (Wald, 2000, p. II).

Today we are used to thinking of racial identities in homogenous terms such as whiteness or blackness (Bonnett, 1999), but there have been times when racial identities had more fluidity and heterogeneity. For many years, scholars (Blassingame, 1973; Dominguez. 1986; Foner, 1970; Lachance, 1994; Omi & Winant, 1994) have been intrigued by the particularities of…

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Only Skin Deep? The Harm of Being Born a Different Colour to One’s Parents: A (a minor) and B (a minor) by C (their mother and next friend) v A Health and Social Services Trust [2010] NIQB 108; [2011] NICA 28

Medical Law Review
Volume 19, Issue 4 (Autumn 2011)
pages 657-668
DOI: 10.1093/medlaw/fwr029

Sally Sheldon, Professor of Medical Law and Ethics
University of Kent

The complainants, A and B, were twins born as a result of IVF treatment involving donated sperm provided by the Defendant Trust to their mother. While the children’s parents were white, the twins had darker skin than either of them and different skin colour to each other, a difference that had become more marked as they had grown older. It transpired that while the Trust’s normal practice would be to request only sperm from ‘Caucasian’ or ‘white’ donors for a white couple, in this instance sperm from a ‘Caucasian (Cape Coloured)’ donor had mistakenly been used. The implication of this error was that while the sperm donor was white, there was no guarantee that his genetic children would also be so. By the time the action reached the courts, the twins were eleven years old.

The Trust admitted liability to the parents. However, it opposed the action brought on behalf of the twins, in which they alleged three broad kinds of harm. First, because of their colour, the twins had become ‘the subject of derogatory comment and hurtful name calling from other children, causing emotional upset’. Secondly, they had been the subject of adverse and hurtful comment about the colour of their skin and their physical dissimilarity from each other, on the one hand, and between themselves and their parents on the other. This had led them to question their parents about whether they were adopted. Thirdly, should either twin go on to have a child with a partner of mixed race, any child born to them was likely to have a different skin colour from either parent.

The court proceedings raised, by common agreement of the parties, a number of legal issues: first, the existence and nature of a duty of care owed to A …

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Imagining Identity in New Spain: Race, Lineage, and the Colonial Body in Portraiture and Casta Paintings

University of Texas Press
2003
216 pages
6 1/8 x 9 1/4 in.
12 color and 60 b&w illus., 4 tables
Hardcover ISBN: 978-0-292-71245-4

Magali M. Carrera, Professor of Art History
University of Massachusetts, Dartmouth

Reacting to the rising numbers of mixed-blood (Spanish-Indian-Black African) people in its New Spain colony, the eighteenth-century Bourbon government of Spain attempted to categorize and control its colonial subjects through increasing social regulation of their bodies and the spaces they inhabited. The discourse of calidad (status) and raza (lineage) on which the regulations were based also found expression in the visual culture of New Spain, particularly in the unique genre of casta paintings, which purported to portray discrete categories of mixed-blood plebeians.

Using an interdisciplinary approach that also considers legal, literary, and religious documents of the period, Magali Carrera focuses on eighteenth-century portraiture and casta paintings to understand how the people and spaces of New Spain were conceptualized and visualized. She explains how these visual practices emphasized a seeming realism that constructed colonial bodies—elite and non-elite—as knowable and visible. At the same time, however, she argues that the chaotic specificity of the lives and lived conditions in eighteenth-century New Spain belied the illusion of social orderliness and totality narrated in its visual art. Ultimately, she concludes, the inherent ambiguity of the colonial body and its spaces brought chaos to all dreams of order.

Table of Contents

• List of Illustrations
• Acknowledgments
• Introduction: Visual Practices in Late-Colonial Mexico
• Chapter One: Identity by Appearance, Judgment, and Circumstances: Race as Lineage and Calidad
• Chapter Two: The Faces and Bodies of Eighteenth-Century Metropolitan Mexico: An Overview of Social Context
• Chapter Three: Envisioning the Colonial Body
• Chapter Four: Regulating and Narrating the Colonial Body
• Chapter Five: From Popolacho to Citizen: The Re-vision of the Colonial Body
• Epilogue: Dreams of Order
• Notes
• Glossary
• Bibliography
• Index

The Lost German Slave Girl: The Extraordinary True Story of Sally Miller and Her Fight for Freedom in Old New Orleans

Grove/Atlantic, Inc.
November 2005
288 pages
Paperback ISBN-13: 978-0-8021-4229-0

John Bailey

It is a bright, spring morning in New Orleans, 1843. In the Spanish Quarter, on a street lined with flophouses and gambling dens, Madame Carl Rouff recognizes a face from her past. It is the face of Salomé Müller, her best friend’s daughter who disappeared twenty-five years earlier. But the young olive-skinned woman claims her name is Mary Miller—she is the property of a Frenchman who owns a nearby cabaret. She is a slave, with no memory of a “white” past, or of the Müller family’s perilous journey from its German village to New Orleans. And yet her resemblance to her mother is striking, and she bears two telltale birthmarks. Had a defenseless European orphan been callously and illegally enslaved, or was she an imposter? So began one of the most celebrated and sensational trials of nineteenth-century America.

In brilliant novelistic detail, award-winning historian John Bailey reconstructs the exotic sights, sounds, and smells of mid-nineteenth-century New Orleans, an “infernal motley crew” of cotton kings, decadent river workers, immigrants, and slaves. Miller’s dramatic trial offers an eye into the fascinating laws and customs surrounding slavery, immigration, and racial mixing. Did Miller, as her relatives sought to prove, arrive from Germany under perilous circumstances as an indentured servant or was she, as her master claimed, part African and a slave for life? The trial pits a humble community of German immigrants against Mary’s previous owner, John Fitz Miller, a hardened capitalist who is as respected by the community for his wealth and power as he is feared and distrusted, and his attorney, John Randolph Grymes, one of the brashest and most flamboyant lawyers of his time. Was Sally Miller’s licentious lifestyle proof that she was part African, as the defense argued? Or was she the victim of a terrible injustice? Bailey follows the case’s incredible twists and turns all the way to the Supreme Court, and comes to a shocking conclusion.

A tour de force of investigative history that reads like a suspense novel, The Lost German Slave Girl is a fascinating exploration of slavery and its laws, a brilliant reconstruction of mid-nineteenth-century New Orleans, and a riveting courtroom drama. It is also an unforgettable portrait of a young woman in pursuit of freedom.

The Dispossessed: Cultural Genocide of the Mixed-Blood Utes: an Advocate’s Chronicle

University of Oklahoma Press
May 1998
384 pages
9 x 6.1 x 1.1 inches
ISBN-10: 0806130431; ISBN-13: 978-0806130439

Parker M. Nielson

This book is out of print.

In The Dispossessed, Parker M. Nielson chronicles the tragic story of the mixed-blood Utes. A leading Utah attorney, Nielson represented this group in its suit against the U.S. government, decided by the Supreme Court in 1972. Although the Court determined that the mixed-bloods had been defrauded, it declined to restore their property. Basing his account on extensive research as well as his own firsthand experience, Nielson brings to light for the first time the disturbing events that led up to the landmark decision.

Deprived of their native lands in central Utah by immigrant Mormons, the mixed-blood Utes—almost exclusively members of the Uintah band—were confined to a reservation in eastern Utah, with a promise from the U.S. government that the land would be theirs alone forever. This promise was not kept. The final blow was the Termination Act, enacted in the early 1950s. Designed to end government supervision of American Indians and the obligation of federal entitlements, its consequences for the mixed-blood Utes—as well as for many other Indian groups—were devastating, for it deprived them of their assets, land, and very way of life.

Drawing in particular on the testimony of individual Utes affected by the termination policy, Nielson discloses the broken promises and backhanded schemes perpetuated by government officials and the Utes’ own lawyers, whose motives were compromised by self-interest. The author thus explores an all-too-neglected subject: the role of tribal attorneys in influencing tribal histories.

Freedom Papers: An Atlantic Odyssey in the Age of Emancipation

Harvard University Press
February 2012
288 pages
6-1/8 x 9-1/4 inches
17 halftones, 1 line illustration, 1 map
Hardcover ISBN 9780674047747

Rebecca J. Scott, Charles Gibson Distinguished University Professor of History and Professor of Law
University of Michigan

Jean M. Hébrard, Historian and Visiting Professor
École des Hautes Études en Sciences Sociales (Paris)
University of Michigan

Around 1785, a woman was taken from her home in Senegambia and sent to Saint-Domingue in the Caribbean. Those who enslaved her there named her Rosalie. Her later efforts to escape slavery were the beginning of a family’s quest, across five generations and three continents, for lives of dignity and equality. Freedom Papers sets the saga of Rosalie and her descendants against the background of three great antiracist struggles of the nineteenth century: the Haitian Revolution, the French Revolution of 1848, and the Civil War and Reconstruction in the United States.

Freed during the Haitian Revolution, Rosalie and her daughter Elisabeth fled to Cuba in 1803. A few years later, Elisabeth departed for New Orleans, where she married a carpenter, Jacques Tinchant. In the 1830s, with tension rising against free persons of color, they left for France. Subsequent generations of Tinchants fought in the Union Army, argued for equal rights at Louisiana’s state constitutional convention, and created a transatlantic tobacco network that turned their Creole past into a commercial asset. Yet the fragility of freedom and security became clear when, a century later, Rosalie’s great-great-granddaughter Marie-José was arrested by Nazi forces occupying Belgium.

Freedom Papers follows the Tinchants as each generation tries to use the power and legitimacy of documents to help secure freedom and respect. The strategies they used to overcome the constraints of slavery, war, and colonialism suggest the contours of the lives of people of color across the Atlantic world during this turbulent epoch.