Body of the Law: Trans Bodies in Cis Law (Adventures in Transgender Studies, Part II)

As I engaged in the ritual striptease meant to appease the airline gods at Denver International Airport, standing at the bin that I had claimed as my own with an advert I paid no attention to staring at me from its bottom, a TSA agent walked up to me. I was depositing my grey blazer in the bin, my belt soon to follow, and I grew nervous, my throat tightening as it often does on security lines.

But all that the blue uniformed man did was smile at me and say “Good morning to ya, ma’am.”

At that moment I knew, as if a disembodied computer voice had said in my head “Conditional Cissexual Privilege Activated” that I was safe. For now. I escorted my belongings, the worn leather boots that could theoretically contain a bomb, the belt that could theoretically contain a trigger mechanism. Or cocaine. My handbag full of feminist literature (now there’s something explosive). That was when motion caught my eye and I saw something ominously towering over the old fashioned metal detector. The rounded slate grey hulk of an x-ray machine scanning men and women in a surrendering position, arms held unthreateningly high above their heads. I swallowed thickly wondering if the jig was up, if I would at last have to face transphobia at the airport, if I would have to sit in a room listening to impertinent questions about what was in my knickers.

As I approached the metal detector and drew nearer to the x-ray machine I felt cold and uncomfortable, as if I were approaching some tainted evil artefact from one of my fantasy games. The dread relic of a tyrannical lord. All prose of a purple hue aside, however, I came to realise that the scanner was only for people who rang the metal detector inexplicably. Thank Goddess I decided against those nipple piercings.

As I glided beneath the metal detector’s auspices I escaped the intensified gaze of the guards when the machine didn’t go off. I was waved past and sent to collect my freshly x-rayed belongings.

When people, from activists to academics, assert that the personal is political it is an injunction to reflect on the wider meaning of quotidian events such as this one. It is a call to recognise the event not as an isolated monad among multitudes, but linked to others by a web of societal relations that can ensnare us all (or liberate us). I knew that day as I submitted myself for screening that I was coming up against the great legal fiction of gender that exists in this country, the fact that the timid bulge an x-ray scanner might have revealed were I subject to it would have marked me as a deviant, a potential terrorist with plastic explosives in her knickers, or just someone to be publicly humiliated otherwise. The fiction that sustains the meaning which licenses such behaviour is the patchwork quilt of laws in the US that defines gender.

It is always with such things as this in mind that I read transgender legal scholarship. As dispassionate and ‘objective’ as I try to peruse the readings on law and trans people, I find again and again that I am simply unable to divorce my lived, and embodied reality from that reading. A while ago I simply decided I should stop trying to distance myself; this was my life, after all. What cis privilege refers to is precisely the fact that the above scene I described is something a cis person almost never has to deal with concerning airport security. Or anything else in their day to day life. The definition of cis privilege is precisely that one can live a life where their gender is legally recognised as being beyond reproach.

Few people know more about identity documentation than transgender people, precisely because the law makes it a rite of passage in every transition to ensure that your documents align with your gender. If you’re genderqueer, you’re simply out of luck. But for those of us who identify within the binary we become experts on the policies of every institution that publishes and distributes the documents of identity and control that establish our claims to identity. The Department of Motor Vehicles, the Department of Health, the Department of State, The Social Security Administration, your bank, your schools, past and present, your credit card company, your health insurance company (if you’re lucky enough to have it in the US), credit rating agencies.

Cis privilege is being able to take that for granted, being able to know that your birthright is precisely that all of the above will unflinchingly refer to you as a man or a woman simply because ‘it’s obvious’ and ‘you were born that way.’

The great struggle of trans people to change identity documentation is precisely something that arises out of a peculiar technology of gender power that is all but ubiquitous in the world today: the gendering of one’s documentation. That we single out ‘sex’ as an essential characteristic for identity that belongs on a state ID, driver’s licence, passport, birth certificate, and so on is a reminder of the astonishing level of importance gender is given in our world, and a reminder of the institutional need to mark and segregate gender in an ‘objective’ fashion in accordance with the dominant ideology. In the modern world, where a picture, name, and date of birth are firm establishments of identity, why do we include gender?

The simple answer is that it is a means of controlling access to the privilege of having a state-sanctioned gender identity. If you cannot adhere to one of the two approved genders, you become an outcast anomaly. If you dare to change, there are procedures for this. Secret, hidden, begrudgingly enforced and exercised, but they do exist. The standards of such procedures are, as always, something that says much more about the enforcing institution and society at large than it does about the person applying for the change.

In the United States, in a widely heralded change, the Department of State loosened its restrictions on passport gender changes. One was once required to provide proof of sexual reassignment surgery. The ideological message was: real men have penises, real women have vaginas. It is an odd extension and externalisation of the basic standard for an attending physician to assign gender at birth. Now, however, the DoS has rescinded that requirement. Real men can have vaginas, and real women can have penises. All of a sudden. The requirements remain somewhat stringent, of course. One has to submit a letter from a doctor verifying that you are transgender and have received treatment for your identity.

Still, what happened here calls attention to something very significant, particularly when set against the standards for birth certificates in my home state which still require extensive proof of surgery to change a birth certificate’s gender marker. The discontinuity between the State Department’s old policy and its new policy, between its current policy and the policies of prisons, and various departments of health nationwide, lays bare the fundamental arbitrariness of legal gender.

Had I been harassed at the airport, I would have been tumbling into the breach of another discontinuity: that of my state ID, which says F on it, and what might have been visible to the TSA agents had they scanned my body. Yet what would have caused that discontinuity was not so much a policy as a ‘common-sense’ idea about how to define gender, through the use of genitalia and little else. It is this vexing, and indeed childish assumption that bedevils trans people throughout their lives.

I’ve made precious little reference to the law as of yet, save for vague gestures towards contradictory rules regarding identity documents. There is a reason for this, however. All I’ve discussed hitherto amounts to the basis for what law does exist, and what legal reasoning has been used in the oppression of transgender people through juridical mechanisms.

This feels oddly familiar...

In Paisley Currah’s Gender Pluralisms Under the Transgender Umbrella, ensconced in his historic Transgender Rights anthology, the two cases of schoolchildren he cites to give examples of case law bearing on trans people illustrate the arbitrariness and the types of appeals that are often required of trans people in order to obtain civil rights. As Currah points out, litigant Pat  Doe’s legal team was able to convince a judge that she should be allowed to wear “girls” clothes at her primary school because she was, in fact, a girl and could ‘prove’ this through an appeal to Gender Identity Disorder. Nikki Youngblood’s case centered on the fact that she as a young woman wanted to appear in her high school yearbook wearing a shirt and necktie, an outfit prescribed only for boys. But her sex discrimination appeal was denied by the courts.

Currah argues that these two court cases show the fundamental difference between two particular types of appeal: one to fixed and innate identity, and one to choice. He argues, largely correctly, that appeals to free choice are legally unintelligible and that rights claims must be predicated on fixed categories of identity that a court can objectively identify and elect to protect. However, I would argue- similarly referencing case law- that like so much else in the meting out of legally sanctioned, protected gender, these rulings are arbitrary.

Later in this same volume, Professor Kylar Broadus, a trans man who himself fought a discrimination case against State Farm and lost, quotes fairly recent case law that was- surprisingly- not brought to bear in the defence of Ms. Youngblood. In the 1980s Ann Hopkins was denied a partnership in her accounting firm, the famed Price Waterhouse Cooper, because everything about her was deemed insufficiently feminine. Like Ms. Youngblood in her refusal to wear a feminine, revealing drape for her yearbook photo, Ms. Hopkins abjured most of the stereotypical trappings of Western femininity. She was told by her bosses that if she wanted a partnership she would do well to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have [your] hair styled, and wear jewellery.”

However, the Supreme Court ruled that the Title VII anti sex-discrimination provisions did indeed protect Ms. Hopkins from what activists would call ‘gender policing.’ It did indeed prohibit employers and other institutions from acting as enforcers of normative gender. Thus Ms. Hopkins was protected by the law and had suffered sex discrimination: because she was a woman who was acting in a way her bosses felt women should not act, and because they made a executive decision based solely on that ideological belief, she was the victim of discriminatory practise for which she was entitled to redress.

As with many cases regarding gender, it simply depends on which judge is assigned to hear one’s case.

Broadus shows that despite using Hopkins v. Price Waterhouse as part of his defence, he was denied simply because “in Price Waterhouse the plaintiff was not a transsexual”- an eerie echo of Ulane v. Eastern Airlines when Karen Ulane’s challenge to her firing was shot down by a court because she was “transsexual and not a woman.” It seems, at first blush, (despite Ms. Youngblood’s loss) that the sex discrimination title exists only for cis people; trans people constitute a third category of person outside the law and beyond its purview or protection. But Broadus goes on to argue that in more recent years, courts have been making that distinction less and less.

In 2001 the First Circuit court ruled, in Rosa v. Park W. Bank & Trust Co. that a male dressed in “traditionally feminine attire” could seek redress under Price Waterhouse for discrimination if it could be shown that the discriminatory act arose from the fact that his “attire did not accord with his male gender.” That same year, the Ninth Circuit Court drew on Price Waterhouse to rule in favour of Crystal Schwenk, a trans woman who was suing under the Gender Motivated Violence Act for being assaulted by a prison guard. When the guard appealed the Ninth Circuit ruled against him saying:

“The initial judicial approach taken older cases… has been overruled by the logic and language of Price Waterhouse. In Price Waterhouse,… the Supreme Court held that Title VII barred not just discrimination based on the fact that Hopkins was a woman, but also discrimination based on the fact that she failed to ‘act like a woman’- that is, to conform to socially-constructed gender expectations… The evidence offered by Schwenk tends to show that the Defendant’s actions were motivated, at least in part, by Schwenk’s gender- in this case, by her assumption of a feminine rather than a typically masculine appearance or demeanour.”

Professor Broadus quotes several more cases in the US and Europe adhering to a similar logic. The lesson to be deduced from this seeming trend, however, is precisely that the specific discourse surrounding sex and gender changes from year to year and for more or less arbitrary reasons. The logic of courts like the Ninth Circuit is assuredly sound, but it rests on a willingness to accept the belief that discrimination based on gender identity is wrong. They illuminate the possibility of winning cases on the basis of preventing institutions from policing gender norms.

Currah’s argument is complex yet pivots off of the lesson he deduces from the comparison between Doe and Youngblood. As I’ve just demonstrated, while he is correct to assert that there is an ideology that claims of innate identity are more legally tenacious than claims of protecting individual practise or choice, that has not always been reflected in the courts. Price Waterhouse rested on the charge that Ms. Hopkins had a right to express her gender however she chose. The Supreme Court ultimately agreed with this assertion, despite the fact that in the choice/immutability (or conduct/identity as Currah would have it) dichotomy her circumstances clearly ascribe her to the former.

I have discussed elsewhere why the assertion of such a dichotomy is deeply problematic and rests on terms that are not grounded in peoples’ lived realities. To be sure, Ms. Hopkins likely had no biological imperative to avoid the use of makeup, but it would have been psychologically painful for her to be forced to dress and comport herself in a way not of her choosing due to her ascribed sex. This reality, as well as the reality that such enforcement would constitute discrimination on the basis of Ms. Hopkins’ sex, was what motivated the Supreme Court to rule in her favour despite the fact that any opponent of hers could lambaste her for ‘making a choice’ that she could easily undo and save everyone much trouble.

"And girls should just do what I tell them, amirite, Your Honour? This isn't about sexism!"

Currah persuasively argues that transgender people have rarely made the “black analogy”- that is, an analogy to the oppression of people based on an immutable race characteristic- in regards to their own legal defences. Despite this, he seems to argue, they are winning because there is a nuance to the tactic of immutability they have employed in courts: “significantly, they reverse the traditional idea that gender is an expression of sexed bodies and instead identify gender identity as the presocial fixed category.” He frames this as a ‘best of both worlds’ argument that plays within the rules set out by American civil rights discourse (organisation around a fixed category that constitutes an inflexible class of persons) but nevertheless destabilises that discourse as well by unmooring gender from its sexual referent.

It is at this point that I identify an unintended convergence between Broadus and Currah’s arguments. What they are both strongly suggesting is that courts should be convinced to adjust their arbitrary standards regarding the enforcement of gender to be predicated upon gender performance rather than sexual physiology. We see this evolution of thinking in regards to the State Department’s decision to change their passport application policies. The new standards emphasise a lived gender but no longer require an operation that proves one has an approved set of genitalia. The sexual referent is marginalised here.

Though Currah might not entirely agree, the emphasis is increasingly on what one does rather than what one is. This is, indeed, in defiance of popular trends regarding normative discussions of LGBTQ people, where many (particularly cis and hetero liberals) are quick to emphasise that each letter in the acronym constitutes an immutable characteristic. While many suggest that cis LGBQ people are “born that way” and a few people are also willing to grant T people that boon, Currah notes a crucial difference in the legal framing of that errant T. Whither transgender as a constitutionally protected category? It is both present and not present, implied and gestured to vaguely but with ramifications going well beyond itself.

His argument here is at its most compelling. Laws that are designed to protect transgender people are often laws that add “gender identity” to a laundry list of protected characteristics under equal opportunity laws (race, creed, sex, sexual orientation, etc.). Yet, Currah, argues, rarely is the word ‘transgender’ or ‘transsexual’ mentioned in the laws themselves, meaning that they apply to everyone. What has happened with the passage of gender-identity legislation is the backdoor enshrinement of everyones gender, whether cis or trans. It is Hopkins v. Price Waterhouse canonised in the legal code as a law unto itself.

The term ‘transgender’ is situated strangely in this debate, relative to the way other identities are deployed in our legal discourse. In advocacy work it is a word one hears routinely, the flag around which I and others rally in the face of hate crimes, the central plinth of our reverse discourse against discrimination. But in the laws we help shape to better ensure our protection and citizenship we use far broader language that helps to destabilise the very principles that people have used to discriminate against us. The language protects gender identity both as an immutable characteristic and as a choice, and as I have already demonstrated the precedent for such ambiguous consideration exists in case law as well. Currah quotes the 2003 Boston protection ordinance and its description of ‘gender identity’:

A person’s actual or perceived gender, as well as a person’s gender identity, gender related self-image, gender-related appearance, or gender-related expression whether or not [all of the above] is different from that traditionally associated with a person’s sex at birth.

Despite the problematic conclusion that Currah drew from his quoting of case law, he arrives at an amenable follow-up conclusion which suggests very strongly that trans people are actually disrupting the conduct/identity dichotomy in legal practise. What I would add to his argument, which suggests that this is only happening in the mostly local legislation that trans activists have helped to pass, is that the arbitrary nature of individual judges’ concepts of gender has enabled this to be an effective strategy in courtrooms as well, allowing precedent to accumulate precipitously, particularly over the last fifteen years, that shows that an appeal to an immutable sex can be resignified dramatically.

The reason this is important is quite simple: it creates an effective two pronged strategy that neutralises traditionally transphobic arguments in court. As a trans woman, my opponents would be keen to identify me as a man and thus as a deviant whose choices and conduct should not be protected. Using Price Waterhouse, however, such an argument backs them into a corner. Even if a court rides roughshod over my womanhood and declares me a man, that simply means they will see me as a man whose rights to free gender expression are being violated and I’ll still win. If the argument of my manhood is rejected, then I need only appeal to gender identity legislation and say that my unique womanhood is under attack unfairly. In either scenario I can come out ahead.

Granted, this particularly rosy scenario relies on innumerable variables aligning perfectly in order for me to be protected in precisely that way. But my point is that the ingredients that could produce it are very much in evidence and are proliferating by the day as a result of a multitude of factors conspiring to disengage an understanding of gender from a presumed sex.

As I have argued throughout this piece, how the law decides on sex and how it deploys power to enforce sex is fundamentally arbitrary. Our goal should be to adjust those definitions such that they are more equitable, more just, and produce the least harm.

Then just maybe I can walk through the airport without fearing that I might have to attach my own name to a court case not too long after.

6 thoughts on “Body of the Law: Trans Bodies in Cis Law (Adventures in Transgender Studies, Part II)

  1. Paisley Currah May 1, 2011 / 5:01 am

    Hey, love this piece, your writing and your analysis. And at this point in time, I do agree with your reading of the law about employment discrimination. Gender is a practice, a belief, a performance (for all, not just for trans people), and courts are beginning to move that way. When it comes to gender classification on identity documents, though, I think policymakers and judges are still interested in assertions of gender permanence, of “is-ness” even if surgery is not required in every case. I have another piece, about the debate changing NYC birth certificates, that you might be interested in. I can email it to you, or post it temporarily (copyright being what it is) somewhere for you to download. And I’m rushing to finish an article about gender in TSA security stuff, if you’d like to read it,

    • Quinnae Moongazer May 1, 2011 / 10:01 am

      Mr. Currah, a pleasure to have you here! Thank you for your kind response!

      I was delighted to see you speak, in person, at the New School conference The Body and the State none too long ago and I’m so glad you saw fit to comment on my analysis. I’d love to read the materials you suggested. I’ll email you at the address you provided for this blog with more.


  2. Jonathan May 7, 2011 / 9:14 pm

    It strikes me that taking those two rulings to their logical conclusions pretty much destroys the whole concept of gender altogether. If people have the right to identify as either male or female and also have the right to express their chosen gender however they se fit, then gender essentially becomes meaningless. Which, on reflection, is probably a good thing.

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