Gender and Political Theory

Feminist Reckonings

Mary Hawkesworth

• Publisher: Polity
• Year: 2019
• Print ISBN: 9781509525829, 9781509525812
• eBook ISBN: 9781509525850
• Edition: 1
• Topic: Philosophy
• Subtopic: Political Philosophy

Western political theory typically incorporates certain assumptions about sex and gender as natural, unvarying and "pre-political."  This book critically examines these assumptions and shows how recent scholarship undermines the illusion that bodies exist outside politics and beyond the reach of the state.

Leading political theorist Mary Hawkesworth's cutting-edge intersectional account demonstrates how popular conceptions of human nature, public and private, citizenship, liberty, the state, and injustice relegate women, people of color, sexual minorities, and gender-variant people to inferior status despite constitutional guarantees of equality before the law. Hawkesworth argues that traditional political theory has contributed to the perpetuation of pernicious forms of injustice by masking the state's role in the creation of subordinated and stigmatized subjects.

The book draws insights from critical race, feminist, postcolonial, queer, and trans* theory to give a compelling, original, and highly readable introduction to historical and contemporary debates on gender and political theory for students.

1
Sexed Bodies: Provocations

The referent, “woman,” has no prior unity, no bundle of easily recognized characteristics, traits, dispositions. (Hartman 1997: 99)

In August 1995, Kimberly Nixon responded to a recruitment ad placed by the Vancouver Rape Relief Society. A feminist nonprofit collective that provided a hotline, counseling services, and a small shelter for women who had suffered sexual violence, Vancouver Rape Relief was seeking volunteers to be trained as unpaid peer counselors. To qualify for the training, volunteers had to stipulate that they agreed with four core beliefs: (1) violence is never a woman’s fault; (2) women have the right to choose to have an abortion; (3) women have a right to choose who their sexual partners are; and (4) volunteers must work on an ongoing basis on their existing prejudices, including racism. Nixon shared these beliefs. In addition, she was a survivor of sexual assault as well as physical and emotional violence inflicted by her male partner. After receiving personal counseling from Battered Women Support Services in Vancouver, Nixon had volunteered both at Battered Women Support Services and at a halfway house for women in crisis. She wanted to help women who had experienced the trauma of sexual violence and she felt well qualified to undertake the training offered by Vancouver Rape Relief, so she applied for the program. Following a telephone interview and a face-to-face interview, she was invited to join the training program. During a break in the training session, however, Nixon was taken aside by the training facilitator Danielle Cormier, who asked if she had been a woman since birth. Nixon responded: “I’ve been who I am since I was born. I am a woman. I was just born wrong.” She acknowledged that she had completed sex confirmation surgery in 1990. At that point, Cormier asked Nixon to leave, saying “a woman had to be oppressed since birth to be a volunteer at Rape Relief. Because Nixon had lived as a man she could not participate … men were not allowed in the training group” (Wall 2007).

The day after her exclusion from the training, Nixon filed a complaint with the British Columbia (BC) Human Rights Tribunal, which had been created by the provincial government to resolve discrimination cases involving race, color, sex, sexual orientation, religion, disability, and age. Due to its backlog of cases, the Tribunal did not hold hearings on the complaint until December 2000. In the intervening years, Vancouver Rape Relief offered to make a formal apology to Nixon and pay $500 in compensation for “hurt feelings.” It also offered to allow Nixon to participate in the Society’s work by joining the fundraising committee, but it refused to reconsider its decision to exclude her from the training program. Following hearings that lasted twenty-one days, and an additional eleven months of deliberations, the BC Human Rights Tribunal ruled that Vancouver Rape Relief had discriminated against Nixon and imposed a fine of $7,500—the highest damage award in the Tribunal’s history—as compensation for the injury to Nixon’s self-respect and dignity. The Tribunal concluded “that the actions of Rape Relief impacted on the dignity of Ms. Nixon and denied her the opportunity to participate fully and freely in the economic, social and cultural life of British Columbia” (Vancouver Rape Relief v. Nixon et al., 2003 BCSC 1936 [150]; here and hereafter, numbers in square brackets refer to the paragraph in the court decision).

Vancouver Rape Relief appealed the Tribunal decision to the British Columbia Supreme Court, arguing that its action did not constitute discrimination for several reasons: the BC Human Rights Code did not include protections for “gender identity, including transsexualism,” hence the Tribunal had exceeded its jurisdiction; “discrimination,” according to the Code, occurred only in the context of “employment” or “service provision” and did not cover volunteer activities; Nixon’s exclusion was not discrimination because it was due to her lack of a bona fide qualification for the training—having the life experience of being raised as a woman; and finally, the BC Human Rights Code included a special exemption (Section 41) that allowed historically disadvantaged groups to organize among themselves to promote their interests—as a matter of freedom of association (Namaste and Sitara 2013: 214–15).

In the first decade of the twenty-first century, Canadian courts were asked to resolve a host of complex questions about sex as a classificatory scheme, a legal status, a personal qualification, a subjective identification, and an object of knowledge. The ruling in Vancouver Rape Relief v. Nixon et al. (2003), crafted by the Honorable Mr. Justice E.R.A. Edwards, indicates the sweeping power of the state to regulate bodies and the questionable criteria it deploys to determine sex. Although Kimberly Nixon was anatomically female and held a birth certificate granted by the government of British Columbia indicating that she was legally female, the provincial Supreme Court ruled that anatomy and legal status were insufficient to establish her womanhood: “The presence or absence of a birth certificate indicating Ms. Nixon is female cannot determine the outcome of this case” [44].

To support this remarkable position, Justice Edwards suggested that there was an omission in the law passed by the British Columbia legislature (Section 27 of the Vital Statistics Act) which authorized the issuance of revised birth certificates to those who had sex confirmation surgery. The provincial law pertained only to those born in British Columbia. Because the provincial legislature did not claim the power to control birth certificates from geographic sites beyond its borders, the court concluded that BC birth certificates were both geographically limited and temporally constrained. Birth certificates register name, parentage, sex and date of birth, but in the case of transsexuals, the court claimed they identified sex only after sex confirmation surgery. The court’s logic accords the provincial legislature a power it does not have—to make laws governing citizens in other political jurisdictions. It suggests that birth certificates convey information they do not contain—sex before and sex after body modification. In addition, the court decision makes the objective status of a legal document—the birth certificate—conditional on the subjective appraisal of those who view it: “It did not provide that such proof must be accepted by all persons as determinative of the sex of a person whose birth certificate has been changed” [50, emphasis added].

According to Justice Edwards, Kimberly Nixon’s sex was neither a matter of physical embodiment nor a legal status documented by an official birth certificate; it was a matter of subjective determination by the Vancouver Rape Relief Society, which holds a “political belief … as an article of faith that persons who have not lived their lives entirely as girls and women are unsuitable as peer counsellors” [54]. Rather than considering that Kimberly Nixon’s experience of sexual violence might count as a special qualification for a peer counselor, the court accredited Rape Relief’s transphobic judgment that transwomen are not women: “There is a significant danger that a male counsellor, someone who may still have some male characteristics though dressed as a female or a man disguised as a woman will be disturbing to someone already extremely disturbed or afraid” [29]. Because Rape Relief “promotes the interests and welfare of women as an ‘identifiable group’ pursuant to s. 41 of the Code,” the court accorded them a special status in determining who is a woman [84].

“Identifiable group” has a particular meaning in the context of the Canadian Constitution, which includes three equality provisions mandating nondiscrimination against Canadian citizens. Yet Canadian law also makes special provision for “identifiable groups” such as First Nations, who have been subjected to systemic disadvantage since the arrival of European settlers. By invoking section 41 of the BC Human Rights Code, the court suggested that any possible discrimination against Kimberly Nixon must be considered in relation to the competing rights of historically disadvantaged groups to organize to promote their interests:

In this respect Rape Relief is in the same position as any other nonprofit organization under s. 41 of the Code, making the inevitably fine distinctions necessary to determine which persons are within an “identifiable group” defined by race, religion, ancestry, color and so on. What distinguishes this case is the fact that “sex” has been conventionally viewed as a binary concept but is no longer, whereas race, religion, ancestry and certainly color have subgroups, sects, combinations and hues which are long established or more or less obvious. [93]

The court struggles with language as it tries to grapple with the possibility that an “identifiable group” is not readily identifiable. In the past, the court suggests, a binary classification seemed to facilitate sex identification, but this is no longer the case. How then is the court to know what the defining characteristics of a woman (or man) might be and which individuals possesses them? In the absence of binary constructions of sex that had governed social conventions in earlier eras, the court deferred to Vancouver Rape Relief to define “women.” It accepted Rape Relief’s basic claims “that ‘women’, defined as those persons who have lived their whole lives as females, constitute an ‘identifiable group’ and that Ms. Nixon can be identified as a person who is not part of that group” [88]. Thus the court held that Kimberly Nixon’s exclusion did not count as discrimination.

To shore up this logic, the court turned to a decision by the Canadian Supreme Court, R. v. Powley (2003 SCC 43), which attempted to define historically disadvantaged groups subject to special protection under the Canadian Constitution. Powley involved the Métis people, descendants of First Nations people and European colonial settlers. Justice Edwards suggested that, like the Métis, “women” were members of “an identifiable group” whose characteristics were not well established [94]. Powley established a three-part test to determine identity: “self-identification, ancestral connection, and community acceptance” [96]. In applying this test, however, the court did not give equal weight to each criterion. Justice Edwards rejected Kimberly Nixon’s self-identification, claiming it was contradictory: “In this case with respect to the first criterion, Rape Relief acknowledges Ms. Nixon self-identifies as a female, but the evidence shows she also identified herself to Ms. Cormier as someone who had not always lived exclusively as a female” [97].

Ancestral connection has a fraught history in settler colonial societies, where it was frequently used by courts to dispossess Indigenous peoples and sever ties to “white” forebears. In an attempt to avoid these racist legacies, in Powley, the Canadian Supreme Court asserted that claimants must “have a real link to the historic community whose practices ground the right being claimed. We would not require a minimum ‘blood quantum’, but we would require some proof that the claimant’s ancestors belonged to the historic Métis” [32]. In drawing an analogy between the Métis and women, Justice Edwards reinterpreted the meaning of ancestral connection to move “sex” back toward a biological ground:

The Court rejected “blood” or genetics as the sole basis for meeting the ancestral connection criterion, by acknowledging ancestral adoption or “other means”, but left undecided what might be an alternative objective requirement. If genetic characteristics are a legitimate criterion which must be objectively proved, it would seem that absence of pre-transsexual surgery male characteristics is at least arguably an objective basis for determining membership in an “identifiable group” of women. [99]

Justice Edwards aligned the views of Vancouver Rape Relief not only with biological determinism, but with long-standing misogynist constructions of women as “male-minus,” as those who lack certain male characteristics—whether those characteristics are framed in terms of rationality, strength, courage, or physical properties (a penis, testes, facial hair)—a view that feminists had repudiated for centuries.

In discussing women as an identifiable group, Justice Edwards accorded the greatest weight to “community acceptance,” suggesting that this provides the most objective legal foundation for membership in an identifiable group. “The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a … community’s identity and distinguish it from other groups” [102]. In Powley, the Canadian Supreme Court recognized the Métis community in Sault Ste. Marie as the legitimate group to determine membership. By contrast, Justice Edwards designated the Rape Relief collective, one of the litigants in the case, rather than the women of Vancouver or the transfeminine community of British Columbia, as the community with the power to determine who is accepted as a woman and who is not: “If the Rape Relief collective is analogous to a community, quite clearly Ms. Nixon did not meet Rape Relief’s community membership criterion” [103].

In overturning the decision of the BC Human Rights Tribunal, the BC Supreme Court allowed Vancouver Rape Relief, which it characterized as “a small relatively obscure self-defining private organization” [145], to do what the legislature of British Columbia could not do—define “women.” Contrary to the explicit language of Section 27 of BC’s Vital Statistics Act, Vancouver Rape Relief defined women as “those who have always lived exclusively as girls and women” and used that definition to exclude Kimberly Nixon from its training program. Ironically, the court claimed that this small group of feminist activists could exercise this power precisely because it was a private organization. Indeed, the court insisted that exclusion from a small self-defining group could not rise to the level of discrimination: “Exclusion from a self-defining ‘identifiable group’ is in no objective sense equivalent to legislated exclusion from a public program of benefit entitlement” [155]. According to Justice Edwards, “Exclusion by state action has a potential impact on human dignity which exclusion by a self-defining organization like Rape Relief never could have. Legislated exclusion is there for all to see. Rape Relief’s exclusion of Ms. Nixon was private … it was not a public indignity” [147].

Contrary to the findings of the BC Human Rights Tribunal that Rape Relief had injured Kimberly Nixon’s dignity and denied her the opportunity to participate fully and freely in economic, social, and cultural life, the BC Supreme Court stated:

Rape Relief provides access to only a tiny part of the economic, social and cultural life of the province. By reason of Rape Relief’s selfdefinition, perhaps reflected in its small number of members, exclusion from its programs is quite evidently exclusion from a backwater, not from the mainstream of the economic, social and cultural life of the province. It may b...

Table of contents

• Cover
• Front Matter
• 1 Sexed Bodies: Provocations
• 2 Conceptualizing Gender
• 3 Theorizing Embodiment
• 4 Refiguring the Public and the Private
• 5 Analyzing the State and the Nation
• 6 Reconceptualizing Injustice
• Bibliography
• Index
• End User License Agreement