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

Read the entire essay here.

Ethnicities: Plays from the New West

NeWest Press
Spring 1999
208 pages
paperback ISBN 13: 978-1-896300-03-0

Edited by:

Anne Nothof, Professor Emeritus of English
Athabasca University, Alberta, Canada

Edited by Anne Nothof, the three plays included this anthology all deal with intercultural issues in Canada with humour, wit and at times, heartbreak. They range from a village idiot in a French Canadian hamlet to arranged marriages to a multiracial relationship that is unhinged once he tells his parents that he is ‘living with a white girl.’

The anthology features biographic details of the contributing playwrights and their work:

• House of Sacred Cows—Padma Viswanathan
• Mom, Dad, I’m Living with a White Girl—Marty Chan
• Elephant Wake—Jonathan Christenson and Joey Tremblay

Faking It: Poetics & Hybridity: Critical Writing 1984-1999

NeWest Press
Spring 2000
288 pages
Paperback ISBN 13: 978-1-896300-07-8

Fred Wah

According to Fred Wah, the act of thinking critically is one of exploration and discovery. In Faking It, Wah demonstrates how writing poetry is writing critically. This scrapbook of Wah’s work—collected from fifteen years of his writing—contains essays, reviews, journals, notes and, most importantly, poetic improvisations on contemporary poetry and identity. Faking It was written between 1984 and 1999—during major shifts in critical thinking and cultural production—and the hybrid style of the book is an apt reflection of these changing times, as well as a reflection and study of Wah’s own hybrid identity.

Diamond Grill (10th Anniversary Edition)

NeWest Press
Fall 2006
208 pages
paperback ISBN 13: 978-1-897126-11-0

Fred Wah

This story of family and identity, migration and integration, culture and self-discovery is told through family history, memory, and the occasional recipe.

Diamond Grill is a rich banquet where Salisbury steak shares a menu with chicken fried rice, and bird’s nest soup sets the stage for Christmas plum pudding; where racism simmers behind the shiny clean surface of the action in the cafe.

An exciting new edition of Fred Wah’s best-selling bio-fiction, on the 10th anniversary of its original publication, with an all new afterword by the author and the same pagination as the original publication.

ENGL 490: Multi-Ethnic and Mixed-Race Identities in Literature and Film

University of British Columbia
Winter 2011

Glenn Deer, Assistant Professor of English

This course will examine literary and selected filmic representations of interracial and inter-ethnic identities, mixed-race relationships and intermarriage, and bicultural communities in comparative national and international contexts. We shall be especially concerned with the ways in which North American literature and cinema challenge dominant constructions of community identities in terms of ethnic and racial categories. (We will also look at one British film by Mike Leigh.) We will consider such pertinent issues as the problems of identity formation and voice in mixed-race communities, the politics of multiculturalism, and the history of attitudes towards racial boundary crossing.

THEORY (Selections from the following to be available as a custom course packet at the UBC bookstore.)

1. David Parker and Miri Song, eds., Rethinking ‘Mixed Race’ (Pluto 2001)
2. Les Back and John Solomos, eds., Theories of Race and Racism: A Reader (Routledge 2000)
3. Martha Hodes, ed., Sex, Love, Race: Crossing Boundaries in North American History (New York UP 1999)
4. Robert Young, Colonial Desire (Routledge 1995)

Required readings will include the following:  We will usually consider one literary work or a film alongside a relevant critical article or chapter each week.

1. Canadian multiracial writing
   • Maria Campbell, Halfbreed (M&S 1973)
   • Marty Chan, Mom, Dad I’m Living With a White Girl (NeWest 2000)
   • Sky Lee, Disappearing Moon Cafe (Douglas and McIntyre 1990)
   • Fred Wah, Diamond Grill (NeWest 1996)
   • Lawrence Hill, Black Berry, Sweet Juice (Harper Perrenial 2002)
   • Carol Camper, ed., Miscegenation Blues (Sister Vision 1994) [Selections]
2. American multiracial writing
   • Gish Jen, Mona in the Promised Land (Vintage 1996)
   • Nella Larsen, Passing (Penguin 2000)
   • James McBride, The Color of Water (Riverhead 1997)
   • Sigrid Nunez, A Feather on the Breath of God (HarperCollins 1994)
   • Chang-rae Lee, Native Speaker (Riverhead 1995)
3. Canadian, American, and British Films
   • Spike Lee, Do The Right Thing and Jungle Fever
   • Mina Shum, Double Happiness
   • Mike Leigh, Secrets and Lies
   • Anne Marie Nakagawa, Between: Living in the Hyphen
   • Others TBA and guided by student preferences

Course requirements:

• An oral presentation
• a prepared response to a classmate’s oral presentation
• a seminar essay
• regular participation in the class discussions

Chinese Mexicans: Transpacific Migration and the Search for a Homeland, 1910-1960

University of North Carolina Press
May 2012
256 pages
6.125 x 9.25, 11 halftones, 2 maps, 4 tables
Cloth ISBN: 978-0-8078-3540-1

Published in association with the William P. Clements Center for Southwest Studies, Southern Methodist University

Julia María Schiavone Camacho, Assistant Professor of History
University of Texas, El Paso

At the turn of the twentieth century, a wave of Chinese men made their way to the northern Mexican border state of Sonora to work and live. The ties—and families—these Mexicans and Chinese created during led to the formation of a new cultural identity: Chinese Mexican. During the tumult of the Mexican Revolution of 1910, however, anti-Chinese sentiment ultimately led to mass expulsion of these people. Julia María Schiavone Camacho follows the community through the mid-twentieth century, across borders and oceans, to show how they fought for their place as Mexicans, both in Mexico and abroad.

Tracing transnational geography, Schiavone Camacho explores how these men and women developed a strong sense of Mexican national identity while living abroadin the United States, briefly, and then in southeast Asia where they created a hybrid community and taught their children about the Mexican homeland. Schiavone Camacho also addresses how Mexican women challenged their legal status after being stripped of Mexican citizenship because they married Chinese men. After repatriation in the 1930s-1960s, Chinese Mexican men and women, who had left Mexico with strong regional identities, now claimed national cultural belonging and Mexican identity in ways they had not before.

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.

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…

Read the entire article here.

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…

Read or purchase the article here.

Full Blood, Mixed Blood, Generic, and Ersatz: The Problem of Indian Identity

Arizona and the West
Volume 27, Number 4 (Winter, 1985)
pages 309-326

William T. Hagan, Professor Emeritus of History
State University of New York, Fredonia
University of Oklahoma

One of the most perplexing problems confronting American Indians today is that of identity. Who is an American Indian? The question is raised in a bewildering variety of situations. Contingent on its resolution can be the recognition of a group by the federal government, voting rights in a multimillion-dollar Alaskan corporation, or acceptance of an individual as a member of a pueblo’s tightly knit society. Nor is this a question which has arisen only recently. It has been a problem for individuals, tribes, and government administrators since the birth of this nation.

Four centuries to the year after Christopher Columbus began the semantic confusion over how to label the original inhabitants of this hemisphere, Commissioner of Indian Affairs Thomas Jefferson Morgan spoke to a more important issue. He devoted six pages of his 1892 annual report to the question: What is an Indian? “One would have supposed,” observed Morgan, “that this question would have been considered a hundred years ago and had been adjudicated long before this.” “Singularly enough, however,” he continued, “it has remained in abeyance, and the Government has gone on legislating and administering law without carefully discriminating as to those over whom it has a right to exercise such control.”…