To Challenge Trans Injustices, We Must First Understand Why They Exist

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Culture & Conversation Human Rights

To Challenge Trans Injustices, We Must First Understand Why They Exist

Paisley Currah

In his new book Sex Is as Sex Does, trans advocate Paisley Currah examines transgender identity politics, anti-trans legislation, and more.

I live in New York State. In 2003, when I changed the sex marker on my driver’s license, the state required applicants to “submit evidence of medical, psychological, or psychiatric evaluations, with a medical determination that one gender predominates over the other.” The only evidence the DMV would accept was a letter signed by a “physician” on official letterhead. I went in person to get the sex marker on my NY driver’s license changed from F to M, and I came prepared with a letter from a surgeon attesting to my gender. But the whole thing almost fell apart when the DMV agent at the window disputed the validity of the letter. “The policy says this letter needs to be from a physician,” the agent told me, “but this person says he’s a surgeon.” It took consults with two levels of supervisors and one phone call before the DMV workers could agree that a surgeon’s letter would suffice. Once that had been settled, the sex marker attached to my record and on my license was changed.

What happened to me at the DMV could be described as a mundane instance of what T. Benjamin Singer called the “transgender sublime.” During this transaction, the gender disorientation my application created was transposed onto confusion about medical credentials. Years ago, the presentation of a transgender figure—in a text, in person—would often induce a certain vertigo. In these moments, people unexpectedly confronted with a gendered figure who confounded everything they thought they knew about sex would find themselves at the edge of a precipice beyond which cognition fails: “The sheer variety of trans bodies and genders exceeds providers’ cognitive capacity to comprehend them.”

To illustrate this point, Singer—who spent years studying the provision of health care to transgender people, as well as training health care professionals about trans issues in the 1990s—recounted an incident involving a medical resident working in the emergency room of a large urban hospital. When a transgender woman with a broken arm came into the hospital’s emergency room, the resident took one look at her and announced that he could not set her arm because he hadn’t received any medical training on transsexuality.

For this resident, who undoubtedly had set and put casts on many broken limbs during his tenure in the ER, the gendered category crisis the patient triggered was so unsettling that it threw all that he knew into confusion, including the most routine of treatments. A broken arm is a broken arm regardless of a patient’s gender presentation or genitalia or secondary sex characteristics, but the perplexed MD had lost—one hopes only momentarily—his ability to see that.

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Readers habituated to assuming that gender depends on genitals at birth can also have a hard time making sense of accounts of people who move away from their assigned sex. At the very least, keeping track of who is a man and who is a woman can use up a lot of the brain’s processing power, power that might be needed to engage with the argument itself.

To illustrate: over a decade ago, a colleague in political science told me, over dinner, about an article he had recently reviewed for a journal and had recommended rejecting. He thought I would be interested in the topic since the article was about efforts to reform New York City’s policy of issuing amended birth certificates with no sex markers at all to people who had transitioned. “It was impossible to follow,” he told me. “From the very beginning, I couldn’t keep track of who was a man, who was a woman, if a transsexual woman was a man or a woman.”

As it turned out, and as I told him, the article had been written by me and a coauthor. It surely wasn’t perfect and perhaps it deserved to be rejected by the journal—as it indeed was. (It eventually found a home in a special issue of a feminist philosophy journal.) Our mutual chagrin dissipated after a discussion of the vagaries of academic publishing and more wine. But my colleague’s grappling with the most basic building blocks of that particular research piece—individuals whose gender identities do not correspond to the sex they were assigned at birth—meant that he had little cognitive capacity left to allow him to pay attention to our actual analysis. In it, we had looked at the shifts in the legal, medical, and commonsense logics governing the designation of sex on birth certificates issued by the city of New York between 1965 and 2006. Based on archival and ethnographic research, we found that, in the initial policy iteration, the stabilization of legal sex categories was organized around the notion of “fraud”; in later policy discussions, “permanence” was the indicium of authenticity. All that, though, was inaccessible to my reviewing colleague. We had lost him in the first paragraph, when the wheels of his brain began to spin out because of the strangeness of “transsexual woman.” (As I explain in more detail in the introduction, I use “sex” to refer to legal classifications.)

In the last few years, however, the gender competency of academics and the general public has improved dramatically. Moments of gender disorientation are becoming rarer. Even transphobic activists know the basic argot, although they may reference it only to dismiss the legitimacy of gender identity as a concept.

On the progressive side, there is a veritable industry of diversity trainers specializing in transgender issues; and, as a result, college students, school teachers, social workers, and employees at large corporations are much more likely now to have attended a training session on “what transgender is.” In my own history as an activist and educator, I have conducted such sessions and written advocacy briefs. In them, I would carefully and slowly present key terms, provide concrete examples whenever possible, and dispel some of the strangeness of transgender experience by identifying possible moments in audience members’ own histories when they transgressed gender norms. In introducing the terms, I would lay the groundwork for “transgender” by first defining “gender identity” as one’s deeply held internal sense of being either male or female. (Back in the early aughts, when I was doing this sort of work, non-binary had yet to emerge as a gender identity.) I would explain that most people have a gender identity that is traditionally associated with the sex assigned to them at birth—that is, that infants identified as male develop a male gender identity and those identified as female develop a female gender identity.

Then I would cite transgender activist and scholar Jamison Green to explain that “gender expression refers to all of the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, speech patterns, and social interactions.” Following in the footsteps of so many others, I would say that transgender is usually defined in both broad analytic strokes and in reference to particular constituencies and practices. In its abstract sense, I would explain, transgender describes anyone whose gender identity or gender expression is not traditionally associated with the sex assigned to them at birth. To elaborate further, I might have cited Susan Stryker’s influential 1994 definition of transgender as “an umbrella term that refers to all identities and practices that cross over, cut across, move between, or otherwise queer socially constructed sex/gender boundaries.” Sometimes, I would add, the terms “gender non-conforming,” “gender different,” or “gender variant” are used instead of “transgender,” or as descriptive terms supplementing it. (I would probably feel compelled to add, parenthetically, that the older term “transsexual” emerged from medical discourses as a label, a pathologizing one, for people whose gender expression or identity is perceived to conflict with the sex assigned to them at birth, and who may want to undergo a process of “gender transition” that may or may not include gender-affirming medical interventions such as hormone therapy and different types of surgery.)

Finally, I would talk about “cisgender” and “cissexual.” The neologism “cissexual,” Julia Serano explains, refers to “people who are not transsexual and who have only ever experienced their physical and subconscious sexes as being aligned,” while “cisgender” refers to “people who are not transgender.” These terms were introduced to name the previously unmarked normative category of non-transgender—some would use the adjective “accidental” here—men and women. Were I to do such trainings now, there would be a lot more words and definitions.

This book doesn’t deliver a “Trans 101.” I certainly don’t want to befuddle readers unfamiliar with the ins and outs of gender non-normativity and gender transition, but neither do I want to clear up the confusion by providing pat accounts of clearly limned categories like transgender, cisgender, and non-binary. And for those very familiar with transgender issues, I want to make the category’s coherence, even intelligibility (the assumptions about community, identity, and the categories of both transgender and cisgender) a bit more strange and unfamiliar. If we decide in advance what male, female, and X (non-binary) mean before turning to the empirical situation—regardless of whether we imagine sex as referring to gender identity or to the sex assigned at birth or to current genital configurations—it becomes harder to concentrate on why distinct state actors define sex differently, and to figure out what those differences make possible. Moreover, placing so many different ways of failing to conform to gender norms under a conceptually smooth category of transgender gets in the way of identifying specific forms of exclusion that affect people under the “umbrella” differently.

Similarly, if we begin with the assumptions that there is this singular entity called the state and that it often misclassifies transgender people because of transphobia, it will be more difficult to understand at a more granular level the differences between state actors—for example, New York State’s Department of Motor Vehicles and its Department of Corrections. Working on this book has required holding off the move from the specific, apparently anomalous, case to a generalized theory of states and sex classification. An empirical case might be a particular application of a policy on sex definition at a particular agency at a particular moment in time; a general theory might attempt to set out a globalizing account of the relation between the more conceptually coherent categories of sex and the state. Because coming up with a generalizable theory could get in the way of understanding the policy differences, I stay close to the details and defer turning to these larger analytical categories and coming to theoretical closure for as long as possible.

The work of states is to make distinctions among people, objects, and actions. Governments pass statutes, executive agencies create formal or informal rules and policies for enforcing those statutes, and courts decide if a statute contravenes a state or the federal constitution, or if a regulatory policy adequately adheres to the meaning of the statute. Often, the distinctions seem unfair to some—bailing out banks but not individuals, for instance. But the charge of unfairness depends on assuming that the particular people, institutions, or actions share an important commensurability, or sameness.

But that commensurability, that sameness, is not a “truth,” but an argument. If justice as equality means, as Aristotle suggested, that like cases ought to be treated alike, the question begs another question. What cases, situations, individuals are alike? Or, as Aristotle put it, “inequality or equality of what?” Much of the stuff of politics is taken up with challenging those dis- tinctions, with asserting that two things, people, events share a certain whatness in the relevant characteristic, or at the very least an equivalence. Or that they don’t.

There is something about sex classification that make different sex reclassification policies seem not just unfair, but contradictory, even paradoxical. Perhaps because sex is thought to be prior to or outside of politics, unearthing its production as a legal classification seems qualitatively different than thinking through the politics of many other sorts of classifications. Or maybe because M and F have been defined in relation to one another, as each other’s constitutive opposite, the different rules for classification appear paradoxical. Even people not cognizant of or interested in transgender recognition claims find it absurd that two “alike” individuals—both assigned male at birth, with female gender identities and identical histories of body modification—end up with opposite sex classifications from different agencies. Or when the same individual has Fs on some state-issued documents and Ms on others. Most trans rights advocates would argue that it’s not only inconsistent but unjust when two individuals who have the same gender identity—regardless of the state of their body or the history of its modification—are assigned different sex markers.

In this book, however, I don’t center arguments about what the state ought to do for sake of consistency and fairness in sex designation. (If we’re talking shoulds—of course, state actors should classify sex according to gender identity, including non-binary gender identities. Of course, governments should get out of the business of defining, classifying, and recording Ms, Fs, and Xs. But states are not moral beings, they are mobile technologies for arranging difference, distributing pain and pleasure.) The approach is not to focus on the injustice of the inconsistencies but on why they exist in the first place.

Ultimately, I hope the arguments I present won’t just better our understanding of states’ decisions about sex, but also inform a politics that challenges these injustices.

Reprinted with permission from NYU Press.

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