No One Told the U.S. Court System that the X-Men are Human

Back in 2003, the US Court of International Trade handed down its decision in the case of Toy Biz Inc. v. United States that declared the Uncanny X-Men were not human. The decision may have made sense from a purely legalistic perspective, but it paid no attention to the history of the characters or the fandom. By legally declaring mutants to be non-human, the court undid, symbolically at least, decades of narrative intended to demonstrate that they are indeed human. If anything, the Court served only to validate Magneto’s position that mutants would be forever treated as inferior.

The decision rests on the question, for tax purposes, of whether or not the X-Men action figures counted as human or not. When imported, human “dolls” were taxed at a higher rate than non-human “figures.” At the time, the difference was a tariff of 12% versus 6.8%. Yes, the law makes that distinction so collectors of action figures can now feel validated. The case is also of legal note because, despite beginning in 1994 and being decided in 2003, it was the first test of the 1989 Harmonized Tariff Schedule of the United States. Toy Biz, which brought in their figures from China, was attempting to pay lower import taxes by calling their product “figures” representing non-humans. In fairness, many of the X-Men and their associated characters do indeed have wings, claws, and various powers putting them outside the common run of humanity, but one can doubt the purity of their motives.

This, however, completely ignores the narrative universe in which the X-men exist. Marvel itself tried to shrug off the decision when asked about it, but the authors themselves were almost universally aghast. They had spent decades in various story arcs and alternate universes trying to show that not only are the X-Men human, but that their suffering was a very real reminder of what outsider status could mean in the real world. For good measure, Spider-Man and the Fantastic Four are included by name in this decision, but it’s the X-Men who demonstrate the legal blindness the best (except possibly Ben Grimm, aka The Thing, who is arguably the most human member of the Fantastic Four with his quiet patience and overt Jewishness). The Court admits that they have the power to “according to their common and commercial meaning” which clearly admits of the possibility of paying attention to narrative and popular context of the items in question. To assert a power and then use that power in a way that is contradictory to its clear intent is not only hypocritical it is offensive.

So, due to a mix of Toy Biz wanting to save some cash and the Court not having read any comics ever, “the [X-Men and other] figures represent creatures other than humans, and possess features characteristic of non-humans.” The decision is absurd. Consider Dr. Xavier, Jean Grey, or any of a dozen other characters. They are included despite not having any overt “non-human” features, unless of course one counts being Sir Patrick Stewart to be a superpower, and one could make a solid case. But, in all seriousness, their powers aren’t something one can include as accessories for the toys but they’re counted as “non-human” all the same. If even those who appear like the rest of us can be so denigrated, what does that say of the rest? Is anyone safe?

How Does This Affect Me?

From one perspective, it doesn’t, not any more. From another, it means you won. Because of a series of court decisions that specifically reference fan concerns and narrative tropes within the X-Men universe, the distinction was removed between “figures” and “dolls.” I’m not going to pretend that a nerdy judge or Congressional staffer is the sole reason for the change, but it was part of it. Though indirectly, and mixed in with other reasons, fannish sensibilities won out. It didn’t even change the cost of the action figures at the store because the tax savings were never passed on to consumers in the first place. This was a purely moral victory, but one where the highest courts and legislatures of the land sided with the fans in the long run.

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J. Holder Bennett spends his time in the “real” world, whatever that means, as a history professor in North Texas. The rest of the time he focuses on his real love: fandom. For the past fifteen years he’s helped run A-Kon, an anime and manga convention in Dallas, and recently organized the Fandom and Neomedia Studies (FANS) association to bring together fans and academics for the better understanding of their mutual love. He has also done work on historical fiction and collaborated on analyses of science in cinema. Yes, he’s that guy.

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  1. Caio Marinho says:

    Hi, J.

    Great article! Very informative and fun. It’s weird to see the consequences of the, uhm, non-initiated when they take a look at comics cuture. For the fans, it’s obvious that the X-Men are human.

    However, if one were willing to expand the discussion further, one might argue that precisely because their powers arise from their genetic make-up, mutants are, indeed, humans, if of a different species. Several people, many times in the comics, refer to mutants as Homo Superior.

    That aside, I’m more interested in how the decision was reversed. You said a “nerdy judge or Congressional staffer” wasn’t the sole reason, but “was part of it”. Well, who was this enlightened figure? I wanna know! Wikipedia doesn’t help (

    Anyway, thanks for a great article.

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