Intersexual Man Loses Appeal to Change Birth Certificate – A Second Time

Our society’s insistence that gender must be binary – either male or female – poses special difficulties to those people born into sexual ambiguity, sometimes referred to as intersexuals, well illustrated by a December 4 decision by the Court of Appeals of Wisconsin in a case descriptively titled "In re the Modification of the Birth Certificate of Stephanie Tia Calewarts," 2007 Westlaw 4233759.

Stephen Thomas Calewarts was born in 1949 in Kenosha, Wisconsin, and the original birth certificated identified Calewarts as "male." At birth, Calewarts had "ambiguous genitalia," according to documents filed in the case as discussed by the Wisconsin State Journal in a December 5 article by Robert Imrie that is carried by the Associated Press. There was tissue for both a penis and a vaginal opening. Neither the news article nor the court opinion casts any light on how Calewarts lived with this condition for the next fifty years.

In July 1999, Calewarts had surgery to "correct some medical problems," including the removal of his testicles, performed by Dr. Pierre Brassard in Montreal. Brassard signed an affidavit indicating that he had performed gender reassignment surgery on Calewarts, and "she is now female. Any designation on her birth record and all official documents as male is [sic] incorrect." Brassard stated in the affidavit that its purpose was to "support her request to amend her birth record and all official documents to reflect her new name and female gender."

Using the Brassard affidavit as evidence, Calewarts petitioned in the Brown County, Wisconsin, Circuit Court in 2000 to change the birth certificate from male to female, and her name from Stephen to Stephanie, and on July 12 of that year, Circuit Judge John Dennis McKay granted the petition, ordering that a form be completed changing the sex designation on Calewart’s birth certificate as requested. Calewarts indicates that the name change was to honor a grandmother who use that name for the child, not to indicate female sex. Most of the time, Calewarts goes by the gender-indeterminate name "Steph."

Several years later, Calewarts met and fell in love with a woman from New Zealand and sought to marry. However, Brown County officials determined that Calewarts is legally female as a result of the 2000 birth certificate change, and voided the license that had been issued for the wedding. On October 13, 2006, Calewarts filed a new petition with Judge McKay, asking that the birth certificate be changed back to "male." In this new petition, Calewarts provided medical documentation from Dr. Chris Kordiyak, a Green Bay doctor, who characterized Dr. Brassard’s procedures as "reconstructive surgery." Kordiyak pointed out that Calewart has "a prostate, deep voice, facial hair, and bone structure consistent with being male." Although Calewart has "some female characteristics," said Kordiyak in his affidavit, overall Calewart has "predominantly male characteristics" with "surgical reconstruction done for health reasons."

Calewarts also submitted to the court a laboratory blood report showing a typical XY chromosome pattern.

But Judge McKay, insisting that legal rules must be followed, pointed out that there is a statutory one year time limit to appeal or challenge a judicial order of the type he had issued in 2000. A court is authorized to grant relief based on "mistake, inadvertence, surprise, or excusable neglect," but only if the motion to "correct" the birth certificate is made within one year.

The relevant statute creates an exception for "extraordinary circumstances," but, according to the court of appeals, "In her 2006 filings, Calewarts did not give the court an indication that it was being asked to decide whether extraordinary circumstances were present, or whether her motion was made within a reasonable time." Instead, wrote the court, Calewarts’s court papers argued that she is male and that the prior order changing her birth certificate was based on an misunderstanding between Calewarts and Dr. Brassard, and also on Calewart’s own failure to understand the legal ramifications of asking for the change in her birth certificate.

The court of appeals’ response to this sad tale is to state that the trial court correctly rejected the 2006 petition, in light of the papers before it, but that all is not necessarily lost. The court observes that Calewarts can file a new petition with Judge McKay, this time providing arguments in favor of finding an "extraordinary circumstance" justifying belated reconsideration of the appropriate gender designation on the birth certificate.

Meanwhile, however, Calewarts fears separation from the woman he loves. According to the newspaper report, Calewarts’ reaction to the court of appeals decision was to say, "Oh God, no. I am scared to death right now. I am not going to see my wife. She is the only thing that means anything to me. I am a nobody right now." Because the woman is not a U.S. legal resident or citizen and the marriage license was voided, she may not be able to stay lawfully in the United States while further proceedings take place, and there is no certainty that Judge McKay, who has already once rejected Calewarts’ petition to revert back from female to male, will be more receptive to an "extraordinary circumstances" argument.

None of these complications would matter, or course, if the state and federal governments would respect the right of individuals to marry regardless of sex. The whole thing seems baffling to Calewarts, who commented, "I thought I was going to have two birth certificates. One of each. Bit deal. I was born with two genders. I can’t have sexual intercourse because nothing works."

Calewarts points out that he lives as male, despite the birth certificate. He dresses as a man, speaks in a deep voice, and carries a driver’s license listing him as male, in accord with his appearance. Calewarts owns a local business called Tool Belt Divas (demolition and renovation work). And he has spent more than $2,000 so far to try to have his birth certificate changed back to what it was to begin with.

Comments

[Morgan]

I'm a personal friend of the wife involved and I still consider Steph a friend, though I'm not sure if she thinks the same.

I say she because she presented to me as female in 2005. She and Marie (the wife in this conundrum) helped me through a very rough time with a nasty breakup, and while I would nothing more like than to see the two of them together, I must say this tactic is distressingly detrimental to the cause of trans rights.

I'm an intersex woman myself. I know what it's like to be a gender outlaw (sic) as well.

I hope they can get together. I really do. And I know a way.

Get out of this gods forsaken country that thinks with its crucifix and not its brain. Canada is a great place to live, and since Miss Marie is a loyal subject of Her Royal Majesty Queen Elizabeth II, who happens to be monarch-in-right of Canada and of New Zealand, should have little trouble getting there.

As an American citizen, Steph should have little trouble getting there, either. I look forward to hosting a party for them in any Canadian city of their choice to celebrate their reunion, should they wish it.

And if Steph reads this, I hope she understands what a precarious position I was in the week before the last time we spoke. Marie had confided in me in great detail, and I felt a duty to hold that in confidence. I also felt a duty to the both of you to stop any mistakes that I could see that you couldn't.

I'll relate a story I once heard somewhere, though I don't remember where. A priest was hearing confession from people prior to a mass that evening, and among others, he heard confession from someone who said they poisoned the sacramental wine. He finished the confession as is customary, but once he was finished, he had a conflict- if he didn't say something, the entire congregation would die. If he did say something, he would be violating the sanctity of the confession. After a couple of hours of internal struggle about what to do, he came up with a simple solution- he drank the wine.

I did the only thing I could without violating any of the trusts I saw placed in me- what you spoke wasn't, to my knowledge, spoken in confidence. I did the only thing I could think of to fulfil what I thought of as my duty to be a friend to the both of you. If what I did was wrong, I'm sorry. I had to do something, though, so I drank the wine.

Drop me a line sometime. I'm sure you can find me. I think of you often and I miss talking to you. -Morgan.