Transforming Citizenships

Transgender Articulations of the Law

Isaac West

• Publisher: NYU Press
• Year: 2013
• ISBN:
  9781479820245
• Topic: Social Sciences
• Subtopic: Cultural & Social Anthropology
• Index: Social Sciences

“Offers a bold ‘impure politics,’ a new vision for queer understandings of the law.” – John M. Sloop, Vanderbilt University

1
Performative Repertoires of Citizenship

On November 14, 1955, Debbie Mayne, a male-to-female transsexual, started her lunch break with a walk through Los Angeles’s Pershing Square, a popular cruising area for gay men.¹ Dressed in men’s clothing, she entered the men’s bathroom. After exiting the bathroom, Mayne walked across the square and approached G. H. Nelson, a vice officer described in one newspaper account as “an old acquaintance.”² Mayne informed Nelson that she had undergone gender confirmation surgery and stated her intention to start dressing as a woman. Taking Mayne at her word, the vice officer arrested her for “masquerading as a man.”³ Less than a month later, on December 6, Mayne, dressed in women’s clothing, returned to Pershing Square to use the women’s bathroom. Upon her exit, Mayne searched out and found Nelson to ask him the following question: “Here I am. How do you like me as a female?” Nelson responded by arresting Mayne for “masquerading as a woman” and “outraging public decency.”⁴

Wanting to simplify an already complex situation, the city prosecutor combined the charges and scheduled one hearing. At the hearing, Judge Ben Koenig ordered Mayne to undergo a series of examinations with a county jail physician to help him determine Mayne’s sexual status. The physician’s report recounted Mayne’s medical history, but it stopped short of declaring Mayne a woman: “The examiner feels this defendant has made considerable strides in superficial transformation of secondary sex characteristics. However, surgery, electrolysis, hormones and apparel have not produced a woman but clearly an emasculated male.”⁵ After reading the physician’s findings, along with affidavits from other medical experts, Koenig rendered his decision on February 14, 1956. In an opinion crafted without the use of any pronouns, Koenig sidestepped the issue of Mayne’s legal sex, choosing instead to focus on whether or not Mayne “masquerade[d] as a member of the opposite sex for lewd purposes.”⁶ Failing to find any lewd intentions in Mayne’s actions, Koenig acquitted her.⁷

If treated primarily as a jurisprudential matter, Mayne’s trial is an interesting yet inconsequential anecdote. Mayne’s demand for legal recognition was not the first of its kind in the United States or even in the Los Angeles area.⁸ In fact, this was not even the first time Mayne demanded legal recognition as a woman. In mid- to late-November of 1955, Mayne requested and received a legal order to change her name and sex for the purposes of legal identification.⁹ Widening the lens from the particular case to the larger legal landscape similarly fails to provide sufficient cause to examine Mayne’s case. While reminding us of the harassment and violence trans people face, especially in public bathrooms, Mayne’s acquittal did not radically transform the legal status of trans people. Judge Koenig’s circumscribed reading of the facts of the case, limited to an interpretation of Mayne’s motives and therefore avoiding thornier questions about how sex ought to be legally determined, prevented his decision from having any precedential value. Finally, it is impossible to identify the direct and lasting public effects of Mayne’s actions. Therefore, at first glance, Mayne’s arrest and trial, a narrative composed exclusively from press reports and court documents, seemingly offers little more than fragmentary evidence of the legal problems of one transsexual at a historically specific moment.

At this point we face the limits of legal critique informed solely by public texts such as judicial decisions or legislative debates about statutes. As John Lucaites contends, confining our attention to state-based discourses “seldom seriously engage[s] the political and ideological implications of the relationship between rhetoric and law for life-in-society.”¹⁰ Put another way, our histories of legal effectivities rely almost exclusively on “public transcripts,” defined by James Scott as “the open interaction between subordinates and those who dominate.”¹¹ Limiting ourselves to the optics of publicity and visibility, Scott suggests, impedes our ability to recognize “the immense political terrain that lies between quiescence and revolt and that, for better or worse, is the political environment of subject classes.”¹² In order to gain a more accurate reading of the dynamic operations of power relations, we must seek out “hidden transcripts” or “discourse that takes place ‘offstage,’ beyond direct observation of powerholders” challenging contextually dependent configurations of cultural conventions.¹³ Attention to hidden legal transcripts, the dialectical and “silent partner of a loud form of public resistance,” illuminates the radical instability of legal language, institutions, and cultures and the corresponding opportunities for counterhegemonic articulations of legal subjectivities.¹⁴

In Mayne’s case, archival materials present us with a public transcript of her ordeal via press reports and court documents. The public transcript, to varying degrees, flattens the complexity of the situation to a simple matter of a transsexual’s arrest for using a public bathroom. However, textual traces allow us access to hidden transcripts that paint a different picture. The hidden transcript, including Mayne’s correspondence with and between her friends and acquaintances, reveals a resistant rather than a passive subject, and one who actively sought out a confrontation with the law. Mayne’s correspondence provides concrete evidence of the operation of agency in a world of legal constraints, an especially fertile site for reconsidering the capacious flows of discourse and action that may go unnoticed when we assume public actions reflect an implicit agreement with the cultural codes of legibility. Taking this dynamic relationship into account, I suggest that agency must be understood as a “performative repertoire,” or as embodied practices enabled by and negotiated through the logics of subjective recognition.¹⁵ When formulated in this manner, in a way similar to Dwight Conquergood’s thinking on the subject, we can understand how performative repertoires allow “subordinate people [to] skirt patrols, elude supervisors, pilfer the privileged, and make end runs around occupying authorities.”¹⁶ The emphasis of performativity stresses these repertoires as embodied practices that have varying degrees of legibility. Accordingly, agency is not completely born anew in response to a rhetorical act and/or situation but is instead a psychic reservoir constantly and dialectically renewed against the accumulation of one’s experiences.

Exploring agency in this way is relevant especially for those of us interested in what it means to articulate one’s self as a citizen when legal recognition is not guaranteed or expected and where recognition might require more complex negotiations of one’s identity than can be encompassed by critical vocabularies such as passing, assimilation, or homo-/heteronormativity. Here, what Charles Morris terms an “archival queer” is a useful concept, defined as a critic who “utilize[s] the tools of rhetorical criticism and theory to enhance navigation of archives and produce rhetorical histories of archives that will warrant and arm our queer scholarship, pedagogy, and activism.”¹⁷ In this way, I mobilize Mayne’s case as an example of one of the means by which trans people negotiate the material conditions that constrain and enable their living of meaningful lives. Mayne’s public and hidden transcripts demonstrate the agentic navigation of trans people through the interpenetrating circuitries of medical, legal, and mass-mediated discourses. The resulting analysis challenges those who characterize (and chastise) trans people as passive subjects determined by forces beyond their control, and instead illustrates how their inventiveness allows them to manage their relationships as citizens with strangers. Hence, the law affords individuals agentic modalities that do not always start or end with recourse to the law as a final or determining arbiter.¹⁸

To these ends, the first section of this chapter outlines a Butlerian perspective on agency emphasizing the performativity of identity and performative repertoires as a way to mitigate concerns about the political and pedagogical effectivities of promoting quotidian practices of resistance. Upon laying this foundation, the second section returns to the scene of Mayne’s arrest to contextualize Butler’s rereading of connections among interpellation, recognition, identity, and agency. Implicating performativity and agency with public and hidden transcripts clarifies their symbiotic relationship. The third and fourth sections explore Mayne’s public and hidden transcripts to flesh out the concept of “performative repertoires” as an agentic practice. Reading Mayne’s letters provides clues about how Mayne negotiated the constraints of medical and legal discourses and leveraged them to her advantage. Finally, I summarize the importance of recognizing performative repertoires as valuable agentic resources to help citizens cope with and transform cultural conditions not of their own making. In the end, such a perspective allows us to better understand how legal discourses generate the conditions for unruly legal subjects, as well as reminding us that the most important site of legal change may not be in the courtroom, but in the practices of our everyday lives.

Contesting Agency

The study of everyday negotiation of citizen subjectivities with and against the law is often met with skepticism, if not outright hostility, especially when situated within discussions of agency and resistance.¹⁹ Michael McCann and Tracey Marsh suggest that the idea that “citizens can think for themselves is hardly pathbreaking.”²⁰ Their concern centers on “the claims of significance” made by resistance scholarship, as these claims tend to be “overdrawn, underdeveloped, and often unconvincing.”²¹ In their eyes, the valorization of individual and isolated actions risks “imped[ing] collective political action over time.”²² Jeffrey Rubin similarly claims that the celebration of everyday modes of resistance “risks uncritically equating forms of collective mobilization with linguistic, artistic, and ritual expression and placing considerable energy, on the part of both scholars and activists, in activities that do not foster far-reaching challenges to power.”²³ The primary opposition to studies of resistance, therefore, relies on the resurrection of deterministic readings of ideology and hegemony as well as the perceived zero-sum trade-off between everyday forms of resistance and large-scale political mobilization.²⁴

Over and against this anxiety, a Butlerian understanding of agency can reframe the political effectivities of the identity work performed by such negotiations. Butler’s most important intervention is often reduced to gender performance and/or performativity; in the process, what is often lost is Butler’s larger project of envisioning nonstate-centered forms of agency, agencies activated in and by the performativity of identity.²⁵ Butler never explicitly defines agency, yet we can glean an operational definition from the following passage:

One might say that the purposes of power are not always the purposes of agency. To the extent that the latter diverges from the former, agency is the assumption of a purpose unintended by power, one that could not have been derived logically or historically, that operates in a relation of contingency and reversal to the power that makes it possible, to which it nevertheless belongs. This is, as it were, the ambivalent scene of agency, constrained by no teleological necessity.²⁶

In a seemingly paradoxical vision of agency, Butler’s Foucaultian parsing of agency from the aims of power nevertheless accepts the disciplinary formations of power relations as the constraining and enabling conditions of agency. Mayne’s actions allow for a fuller consideration of the possibilities for agency presented by this paradox and provide a potent rejoinder to those concerned about agency after the critique of the sovereign subject.

As Butler has argued in numerous places, the reduction of her work to ironic theatricality misses the point in that performativity is not a radically new project since “a theory of the performative is already at work” in the living of our everyday lives.²⁷ Butler’s politics of the performative navigates Althusserian conceptions of interpellation and Austinian speech act theory, both of which are typically theorized through public actions, to account for mundane enactments of subjectivity. In an argument I develop more fully in this chapter, Butler’s recuperation of interpellation embraces the importance of intersubjective recognition, real or imagined, without conceding the complete capture of the ideologically-infused hail. The hail, or the moment of recognition, then, does not present subjects with a take-it-or-leave-it choice of recognition restricted in advance by the logics of dominant ideologies. Instead, the hail unwittingly opens up subjective latitude to rearticulate prevailing logics as a tactical strategy for surviving otherwise uninhabitable spaces. Thus, the politics of the performative is not oppositional in the way that some would prefer but neither can it be characterized as resignation to one’s own domination. The reworking of interpellative discourses or “the unsettling of ‘matter’” is more than simply a “politics of textuality” when it is “understood as initiating new possibilities, new ways for bodies to matter,” which, in turn, is an especially salient point for those whose understanding of their bodies and gender identities lies outside of conventional legal and medical discourses.²⁸ The constant motion of performativity calls attention to the malleability of discipline, exposing it as a dynamic force rather than as a determinative foreclosure of agency. In opposition to claims about the disabling collapse of the material into discourse, performativity generates sufficient antagonisms to produce agency; discipline and domination are constantly reworked, from innumerable points and often in the operation of hidden transcripts, and expose structures as unstable sets of discursive formations in a perpetual state of undoing. This distinction is relevant to understanding the operation of law in everyday life especially if we want to avoid mistaking the public transcript for reality and obscuring the more complex, dialectical negotiation of dynamic discursive networks.

It may be the case that hidden transcripts embolden subjects to take public actions but we should not assign a necessary location or teleological destination to agency; put differently, the proper response to anxiety over the loss of a sovereign subject outside of discourse is not necessarily the requirement that agency take the form of publicity. To respond thus forecloses investigations into the resistant possibilities of our quotidian practices and effectively resituates rhetorical practice as being solely within the logics of influencing others, in a move that negates the complexities of our subjectivities beyond their public trafficking. Moreover, evaluating agency through public optics makes us blind to the ways in which agency is a constant, embodied process rather than an endpoint marked by the legibility of one’s actions. Here we should attune ourselves to instances of subject-negotiation that easily evade public detection as a way to account for the performative repertoire of hidden transcripts. To elaborate a Butlerian sense of agency, I now turn to Mayne’s arrest to demonstrate how she reworked her interpellation in an agentic manner.

Debbie Mayne’s Legal Transcripts

In a very literal sense, Mayne’s provocation of her own arrest allows us an opportunity to revisit Althusser’s exemplary scene of interpellation and, following Butler, to revise the relationship between recognition and agency. In the Althusserian rendering of subjectivity, subjects are constituted by the hailing of one individual to another. His primary example involves a police officer yelling, “Hey, you!” with the hailed subject turning around to accept the ideologically infused hail. For Althusser, “ideology ‘acts’ or ‘functions’ in such a way that it ‘recruits’ subj...