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Transforming Citizenships
Transgender Articulations of the Law
Isaac West
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eBook - ePub
Transforming Citizenships
Transgender Articulations of the Law
Isaac West
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“Offers a bold ‘impure politics,’ a new vision for queer understandings of the law.” – John M. Sloop, Vanderbilt University
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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 Angelesâs Pershing Square, a popular cruising area for gay men.1 Dressed in menâs clothing, she entered the menâs bathroom. After exiting the bathroom, Mayne walked across the square and approached G. H. Nelson, a vice officer described in one newspaper account as âan old acquaintance.â2 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 âmasquerading as a man.â3 Less than a month later, on December 6, Mayne, dressed in womenâs clothing, returned to Pershing Square to use the womenâs bathroom. Upon her exit, Mayne searched out and found Nelson to ask him the following question: âHere I am. How do you like me as a female?â Nelson responded by arresting Mayne for âmasquerading as a womanâ and âoutraging public decency.â4
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 Mayneâs sexual status. The physicianâs report recounted Mayneâs medical history, but it stopped short of declaring Mayne a woman: âThe 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.â5 After reading the physicianâs 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 Mayneâs legal sex, choosing instead to focus on whether or not Mayne âmasquerade[d] as a member of the opposite sex for lewd purposes.â6 Failing to find any lewd intentions in Mayneâs actions, Koenig acquitted her.7
If treated primarily as a jurisprudential matter, Mayneâs trial is an interesting yet inconsequential anecdote. Mayneâs 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 Mayneâs case. While reminding us of the harassment and violence trans people face, especially in public bathrooms, Mayneâs acquittal did not radically transform the legal status of trans people. Judge Koenigâs circumscribed reading of the facts of the case, limited to an interpretation of Mayneâs 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 Mayneâs actions. Therefore, at first glance, Mayneâs 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 âseldom seriously engage[s] the political and ideological implications of the relationship between rhetoric and law for life-in-society.â10 Put another way, our histories of legal effectivities rely almost exclusively on âpublic transcripts,â defined by James Scott as âthe open interaction between subordinates and those who dominate.â11 Limiting ourselves to the optics of publicity and visibility, Scott suggests, impedes our ability to recognize âthe immense political terrain that lies between quiescence and revolt and that, for better or worse, is the political environment of subject classes.â12 In order to gain a more accurate reading of the dynamic operations of power relations, we must seek out âhidden transcriptsâ or âdiscourse that takes place âoffstage,â beyond direct observation of powerholdersâ challenging contextually dependent configurations of cultural conventions.13 Attention to hidden legal transcripts, the dialectical and âsilent partner of a loud form of public resistance,â illuminates the radical instability of legal language, institutions, and cultures and the corresponding opportunities for counterhegemonic articulations of legal subjectivities.14
In Mayneâs 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 transsexualâs arrest for using a public bathroom. However, textual traces allow us access to hidden transcripts that paint a different picture. The hidden transcript, including Mayneâs 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. Mayneâs 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 âperformative repertoire,â 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 Conquergoodâs thinking on the subject, we can understand how performative repertoires allow âsubordinate people [to] skirt patrols, elude supervisors, pilfer the privileged, and make end runs around occupying authorities.â16 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 oneâs experiences.
Exploring agency in this way is relevant especially for those of us interested in what it means to articulate oneâs self as a citizen when legal recognition is not guaranteed or expected and where recognition might require more complex negotiations of oneâs identity than can be encompassed by critical vocabularies such as passing, assimilation, or homo-/heteronormativity. Here, what Charles Morris terms an âarchival queerâ is a useful concept, defined as a critic who âutilize[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.â17 In this way, I mobilize Mayneâs 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. Mayneâs 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 Mayneâs arrest to contextualize Butlerâs 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 Mayneâs public and hidden transcripts to flesh out the concept of âperformative repertoiresâ as an agentic practice. Reading Mayneâs 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 âcitizens can think for themselves is hardly pathbreaking.â20 Their concern centers on âthe claims of significanceâ made by resistance scholarship, as these claims tend to be âoverdrawn, underdeveloped, and often unconvincing.â21 In their eyes, the valorization of individual and isolated actions risks âimped[ing] collective political action over time.â22 Jeffrey Rubin similarly claims that the celebration of everyday modes of resistance ârisks 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.â23 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. Butlerâs most important intervention is often reduced to gender performance and/or performativity; in the process, what is often lost is Butlerâs 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, Butlerâs 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. Mayneâs 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 âa theory of the performative is already at workâ in the living of our everyday lives.27 Butlerâs 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, Butlerâs 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 oneâs own domination. The reworking of interpellative discourses or âthe unsettling of âmatterââ is more than simply a âpolitics of textualityâ when it is âunderstood as initiating new possibilities, new ways for bodies to matter,â 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 oneâs 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 Mayneâs arrest to demonstrate how she reworked her interpellation in an agentic manner.
Debbie Mayneâs Legal Transcripts
In a very literal sense, Mayneâs provocation of her own arrest allows us an opportunity to revisit Althusserâs 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, âHey, you!â with the hailed subject turning around to accept the ideologically infused hail. For Althusser, âideology âactsâ or âfunctionsâ in such a way that it ârecruitsâ subj...