Beyond Trans

Does Gender Matter?

Heath Fogg Davis

• Publisher: NYU Press
• Year: 2017
• ISBN:
  9781479824120
• Topic: Politica e relazioni internazionali
• Subtopic: Diritti civili in politica

Goes beyond transgender to question the need for gender classification. Beyond Trans pushes the conversation on gender identity to its limits: questioning the need for gender categories in the first place. Whether on birth certificates or college admissions applications or on bathroom doors, why do we need to mark people and places with sex categories? Do they serve a real purpose or are these places and forms just mechanisms of exclusion? Heath Fogg Davis offers an impassioned call to rethink the usefulness of dividing the world into not just Male and Female categories but even additional categories of Transgender and gender fluid. Davis, himself a transgender man, explores the underlying gender-enforcing policies and customs in American life that have led to transgender bathroom bills, college admissions controversies, and more, arguing that it is necessary for our society to take real steps to challenge the assumption that gender matters. He examines four areas where we need to re-think our sex-classification systems: sex-marked identity documents such as birth certificates, driver’s licenses and passports; sex-segregated public restrooms; single-sex colleges; and sex-segregated sports. Speaking from his own experience and drawing upon major cases of sex discrimination in the news and in the courts, Davis presents a persuasive case for challenging how individuals are classified according to sex and offers concrete recommendations for alleviating sex identity discrimination and sex-based disadvantage. For anyone in search of pragmatic ways to make our world more inclusive, Davis’ recommendations provide much-needed practical guidance about how to work through this complex issue. A provocative call to action, Beyond Trans pushes us to think how we can work to make America truly inclusive of all people.

1

The Sex Markers We Carry

Sex-Marked Identity Documents

Lauren Grey, a white transgender woman living in suburban Chicago, had obtained a new driver’s license that showed her new name and a recent photograph that reflected her current feminine appearance. But the sex marker on her license was still male because Grey had not had the “gender reassignment” surgery that the state of Illinois required at the time in order to change the sex marker on her license from male to female. Grey, a thirty-eight-year-old graphic designer, recounted the many awkward and embarrassing questions that she was subjected to while attempting to carry out everyday public transactions. She became acutely aware of just how often the average person is asked to present a driver’s license as proof of personal identity. The list ranged from getting into a bar to getting a job, renting an apartment, and navigating airport security checkpoints. When she tried to test-drive a new car, she handed over her driver’s license to the salesperson. He noticed the male sex marker and began asking Grey a series of invasive questions. “They are like, ‘This doesn’t match.’ Then you have to go into the story: ‘I was born male, but now I’m not. And they are like, ‘What does this mean?’”1

Making it possible for Grey to change the male sex marker on her driver’s license to female might seem like a solution to this problem. If the sex marker on her license matched her self-definition as female, then perhaps the car salesperson would not have made her “go into the story” of being born male. The primary strategy of the mainstream transgender civil rights movement has been to make in possible for transgender people to have the sex markers on our identity documents match our felt or lived sex identity. Through lobbying and lawsuits, the movement has been very successful in bringing about this reform in the bureaucratic administration of the mandatory sex markers on passports, birth certificates, and driver’s licenses.

In the wake of Grey’s story being picked up by the press, Illinois joined many other states in making it easier for transgender people to change the sex markers on both their birth certificates and driver’s licenses.2 Grey has now changed the sex marker on her license to female.3 As a gender-conforming transgender person, I have benefited from being able to change the sex markers on my identity documents to reflect my lived sex identity as male. At the same time, I recognize that this strategy of assimilation does not solve the identity document problem for all transgender people.

What Are You?

People whose appearances and voices “out” them as transgender will still have public encounters in which they are forced to explain their sex identities. And these individuals will still be vulnerable to having their statements and therefore their identity documents rejected in public transactions. This discretionary power is precisely what made the sex stickers on Philadelphia’s public transit passes inherently discriminatory. It’s why activists called for their removal instead of their adjustment. As previously discussed, that was the radical political meaning of Charlene Arcila’s “gender identity” discrimination complaint against the Southeastern Pennsylvania Transportation Authority (SEPTA).

When she purchased and tried to use a female-marked pass, it was rejected. And when she purchased and tried to use a male-marked pass, it too was rejected. Changing the sex marker did not resolve the sex-identity discrimination that she faced. Nor did it put an end to the invasive questioning and humiliation she routinely experienced as she tried to use city buses to get around her city. When Christian A’Xavier Lovehall tried to use a female-marked transit pass as a sixteen-year-old self-described “butch lesbian” before he transitioned to male, the bus driver called him back, and asked loudly so that everyone on the bus could hear and take note, “What are you?”

Asking a person “What are you?” is very different from asking someone “Who are you?” The second question is relevant to the confirmation of our personal identities. The first question is not. When someone asks another person “What are you?” and “What do the sex stickers on your identity documents mean?” that asker is baiting the person being asked to share a story that is both awkward and humiliating. This is true even when the person being questioned has adopted sophisticated psychological coping mechanisms to mitigate and hide the hurt. Arcila’s strong words were full of hurt. Amid the stares and taunts, she said, “I found myself locked in that protective zone of blackening everybody around me out of my vision.”4 Whether one is trying to board a city bus, test-drive a new car, rent an apartment, open a bank account, or buy beer, sex identity is wholly irrelevant.

The power to inspect our government-issued identity documents is the power to inspect the sex markers on these documents. In this way, sex markers offer institutional cover for administrative agents, be they police officers, car salespeople, teachers, or hospital staff, to express transgender animus. As transgender scholar-activists Paisley Currah and Dean Spade correctly point out, “the real impact of discrimination against transgender individuals is to be found in the cracks and crevices of the modern regulatory state, in the agency rules administered by particular state actors that exclude trans people” under the pretense of gender fraud.5

This is not to say that all or even most of the people who inspect our identity documents will use their administrative power to challenge or deny our sex-identity statements. I am optimistic enough to believe that most people do not wish to give transgender and gender-nonconforming people a hard time, or deprive us of our civil rights. Many SEPTA bus drivers chose not to hassle riders about the sex stickers on their transit passes. And I believe that there are many car salespeople, doctors, nurses, teachers, election monitors, and other administrative agents who will treat transgender and gender-nonconforming people with dignity and respect. The problem lies in the discretionary leeway that sex markers grant to administrative agents. For that leeway creates the “cracks and crevices” that we can fall into.

I argue that because the sex markers on our identity documents enable sex-identity discrimination and are not rationally related to the legitimate policy goal of personal identity verification, they should be removed. I make it sound easy. But I know that it’s complicated. Sex markers have been attached to our birth certificates, driver’s licenses, and passports from their inceptions. And these documents explicitly or implicitly predicate just about every other sex-classification policy that organizes US public life.

For instance, North Carolina’s controversial “Bathroom Bill” is anchored by reference to the sex markers on our birth certificates. The 2016 law, also known as House Bill 2 (HB2), requires people to use the sex-segregated restroom that matches their “biological sex” in public schools and agencies throughout the state of North Carolina. The law defines biological sex as “the physical condition of being male or female, which is stated on a person’s birth certificate.”6 Even when our sex-marked identity documents are not explicitly invoked, they are often implicitly invoked.

The North Carolina Republican-dominated legislature explicitly invoked birth sex designation because they believed that such evidence is implied in other sex-segregated bathroom policies across the nation. And when it comes to most sex-segregated sports, there is often an assumption that one’s appearance matches the sex marker on one’s identity documents. So there is no need to ask for the actual presentation of a birth certificate for proof of sex. I explore both of these policy venues (bathrooms and sports) in the chapters ahead.

The Meaning of Sex and Gender

The government agencies that issue and administrate our sex-marked birth certificates, driver’s licenses, and passports never define the terms “sex” and “gender.” The wording of recently adopted instructions for how transgender people can “correct” the sex markers on these documents offers some clues as to what various government agencies mean by “sex” and “gender.” However, these ad hoc sex-marker-amendment policies falsely imply that the original decision to include sex markers on our identity documents “goes without saying,” and need not be explained. It is ironic that socially and bureaucratically important concepts such as sex and gender are so poorly defined by the agencies that use them.

Gender theory scholars, by contrast, have had a lot to say about the terms “sex” and “gender.” When I began teaching courses on feminist political theory in the early 1990s, I followed the feminist pedagogical norm at the time of drawing a distinction between the terms on the first day of classes. I taught my students, just as I had been taught, that “sex” referred to the biological categories of female and male, and that “gender” referred to the socially constructed norms that we, as a society, construct and attach to the sex categories of male and female. Primary physiological sex differences such as genitalia and reproductive organs, along with secondary biological characteristics such as muscularity, fat distribution, breasts, body and facial hair, and tone of voice, were the telltale, “obvious” markers of being a male or being a female.

Gender norms concerning masculinity and femininity were socially constructed, and not born into our bodies. Most liberal feminist theory and jurisprudence focuses on changing specific normative gender stereotypes of masculinity and femininity, namely those stereotypes that are used to deprive someone of equal opportunities because she is female, or because he is male.7 The assumption in this formulation is that the “biological” sex categories of maleness and femaleness that anchor gender stereotypes are immutable personal characteristics that we are born with and cannot alter. Some radical feminists argue that gender socialization is so strong that we experience the “demands of femininity” and masculinity as the very definition of what it means to be a woman and what it means to be a man.8 The implication here is that socially constructed sex categories are immutable because they are drilled into us by parenting and socialization to the point that we cannot personally change them.9

But historians of science and postmodern gender theorists challenged this assumption about the immutability of biological sex in the 1990s. They argued that the categories of male and female are not, in fact, as stable as conventional feminist wisdom had believed. Medical and psychological discourses were steeped in stereotypes of female inferiority, and these prejudices were interlaced with racism, classism, and heterosexism. Historians of science such as Anne Fausto-Sterling and Thomas Lacqueur exposed the masculine-biased frameworks used by scientists and physicians to “determine” and “fix” misogynistic renderings of female sex identity.10 Think for example about how clitorises and labia are often described as variations of penises and scrotums, instead of the other way around.

Feminist psychoanalytic theorists highlighted the misogyny in the works of Sigmund Freud and other patriarchs of Western psychology who used terms such as “hysteria” to describe female but not male patients with the same symptoms.11 Western medical discourse produced the notion of binary sexual difference and hierarchy out of a world of physiological and endocrinal sexual variation. Critical race feminists such as Dorothy Roberts highlighted the intersectional racist-sexist dimensions of these authoritative descriptions of maleness and femaleness.12

Postmodern theorists deepened this critique of medical sex by giving a fuller account of how contemporary conceptions of sex and gender are mutually constructed by seemingly discrete discursive institutions, such as law, science, and popular culture. Gender theorist Judith Butler introduced the term “sex/gender” to indicate this mutuality and the term “performance” to theorize how our ideas of sex/gender are produced and reproduced. Butler rejected the liberal presumption that we have or possess sex/gender identities, and theorized instead that each of us does or performs sex/gender in our actions—how we dress, speak, and otherwise behave.13

The verb “perform” connotes the role of repetition in generating and sustaining social norms that create such momentum in our day-to-day lives that we often mistake them for something a priori to human experience, something “natural” or “God-given” that exists outside of history and beyond our personal control. The fact that sex/gender norms are subject to historical and cultural change reveals the constructed nature of our sex/gender performances. At the same time, the repetitive and compulsive nature of our sex/gender performances means that sex/gender norms are deeply ingrained and highly regulated social customs that we experience as if they were unchangeable. Postmodern gender theory has shed important light on the fact that when we speak of sex we implicitly speak of gender norms, and vice versa.

The problem with collapsing the terms “sex” and “gender,” however, is that doing so robs us of a language with which to differentiate between the sexism of sex-based disadvantage and the sexism of sex-identity discrimination triggered by sex-classification policies. Most of our social practice has not absorbed Fausto-Sterling’s or Butler’s claims. Indeed, even many of us who teach and write about these interventions do not consistently use them to alter our self-conceptions and perceptions of others. This is evident in a great deal of feminist research and teaching, where transgender and intersex experience is still often explained as exceptional, instead of being used to fundamentally challenge the idea that the terms “man” and “woman” imply particular body parts.14

Sex discrimination jurisprudence has exacerbated this problem by using the terms “sex” and “gender” interchangeably as synonyms without acknowledging the constructed nature of our sexed bodies, and our basic right to say who we are in relation to the categories of male and female.15 Just because we perform sex/gender simultaneously, and both are socially constructed, does not eviscerate the conceptual distinction between sex and gender. Gender stereotypes are at the heart of traditional sexism, which focuses on sex-based disadvantage, or “artificial constraints” on a person’s opportunities “because of sex.”16 Sex-identity sexism envelops traditional sexism, but goes further to assess who is permitted to be in the categories of male and female.

Birth Certificates

The first sex-marked identity document that we acquire is a birth certificate. All people who are born in the United States are issued birth certificates by the state or territory in which they are born, and every state and territory requires that the birth certificates they issue include a “male” or “female” sex designation. When prenatal development is monitored via ultrasound, a medical technician determines the baby’s sex identity prior to birth. At twenty weeks into a pregnancy, a penis or vagina is typically visible on the ultrasound monitor. Parents are given the option of learning this information, or waiting to hear “It’s a boy!” or “It’s a girl!” at the moment of birth. The delivering physician makes that announcement based upon a quick visual inspection of the baby’s genitalia.

When a baby is born in a hospital, a sex marker of male or female is entered into a birth certificate application form, which is then passed along to the “mother” to complete. “She” is asked to fill in additional information about herself and the baby’s “father.” I use quotation marks here because not all delivering parents self-identify as “mothers,” and not all s...