Heteronormative Identities as Property: Adversely Possessing Maleness and Femaleness

I. INTRODUCTIONLegal scholars associated with Critical Race Theory ("CRT") argue that racial "whiteness" emerged as a form of property when the legalized subordination of people of color intersected with property law.1 According to this theory, though the meaning of whiteness changed over time, it retained the characteristics of property and was "ratified and legitimated in law as a type of status property."2 This paper exports CRT's status property theory to the realm of sexuality and gender identity, arguing that certain heteronormative identities3 developed as forms of status property- similar to whiteness-through the legalized subordination of women and lesbian, gay, bisexual, and transgender ("LGBT") persons. Further, this paper will demonstrate that, like whiteness, heteronormative identities retained the characteristics of property despite the law's formal renunciation of subordination. This article then builds on that premise, arguing that LGBT individuals can access rights reserved for dominant groups through adverse possession.Section II begins by describing the historical establishment of heteronormative identities (hereinafter "maleness" and "femaleness") as property, and comparing that history to the roots of whiteness as explained by CRT's status property theory. Section III defines the scope of these dominant identities, identifying and describing maleness's and femaleness's physical, behavioral, familial, and sexual dimensions. Section IV demonstrates that maleness and femaleness retain the characteristics of property despite subsequent changes in law. Section V delves into adverse possession by first explaining the doctrine and its potential application to identity generally, and then discussing three cases where courts denied marital or parental rights to LGBT persons. In Kantaras v. Kantaras,4 a Florida Appellate Court invalidated the marriage of a female-to-male transsexual5 to a heterosexual woman. In In Re Marriage Cases,6 a California Appellate Court invalidated the marriage of a lesbian couple (along with those of 3,999 other same-sex couples) by upholding a law that defined marriage as between a man and a woman. And in Liston v. Pyles,7 an Ohio Appellate Court denied a lesbian visitation rights to the child her former partner conceived via artificial insemination. The section concludes by demonstrating that, in each of these cases, the LGBT claimant could have changed the outcome by arguing that he or she adversely possessed a heteronormative identity-in Marriage Cases and Liston by making "use" of its sexual dimension, and in Kantaras through utilizing its behavioral dimension.There are three caveats to this theory. First, like the CRT scholarship before it, this paper does not argue that maleness and femaleness should retain the characteristics of property to the subordination of women and LGBT individuals; rather, this paper identifies a new strategy for advocating within the existing legal framework. Second, adverse possession claims will be strongest where an LGBT individual has either "come-out" or transitioned, though this strategy may still be effectively utilized where an individual has not. Third, while one might worry that adverse possession requires LGBT individuals to claim an identity opposite their biological sex-a proposition that would be problematic for those homosexual and bisexual individuals who do not identify in that way, or those who reject all gender identification-under this adverse possession theory, the LGBT person is not claiming that he or she "is" female or male, but that his or her use of the characteristics of a dominant identity entitles him or her to the rights associated with it. Further, it bears emphasis that this adverse possession theory does not require an LGBT individual to relinquish rights in any other identity he or she claims and only increases the rights to which he or she is entitled.One final point-while the three case studies presented herein all turn in some respect on the ability of LGBT people to marry, an area of law currently in flux, this theory's usefulness is not limited to these circumstances. …