Naming Laws Their Reinforcement of the Gender Binary

NAMING LAWS THEIR REINFORCEMENT OF THE GENDER BINARY

“The segregation of the world into two sexes is, on a daily and systemic basis, a function of gender and its correlate sex category; and it is that fact that brings sexism, heterosexism, homophobia, and transphobia into existence.” Gilbert, 2009, p.109

Author: Hester de Boer Student number: 4161386 Email address: [email protected] Master Thesis

MA Gender Studies Faculty of Humanities Utrecht University, the Netherlands

Supervisor: Katrine Smiet Second reader: Berteke Waaldijk

Utrecht, 2- 7-2019

ABSTRACT This research focuses on the connection between naming laws and the reinforcement of the gender binary. Although naming practices have been studied extensively (Finch, 2008), it has received limited attention within feminist and gender studies. This research builds further on the article of Plicher (2017) in which she puts forename practices at the core of the production and reproduction of the gender binary. Using Foucault’s and Butler’s work on sexuality and gender, this research shows how naming practices produce gendered bodies even before one is born. By focusing on naming laws that encompass gender restrictions, i.e. when only ‘gender- corresponding’ names are allowed, a new perspective on the institutionalisation of the gender binary is given. Because these naming laws force parents to accept the gender binary as a ‘truth’, they lay at the centre of the reinforcement of the gender binary. Therefore it is of great importance to bring these laws under the attention of feminists who plea for a rejection of the dichotomy. Feminist legal theory and critical discourse analysis are used to analyse two case studies of naming laws that include gender restrictions: the German naming law and the Danish naming law. Both laws show different manifestations of the gender binary, which provide the opportunity to obtain more information. Throughout this study, it is argued that these naming laws, an often unrecognised institutionalised form of the gender binary, should be modulated, and idyllically, be repealed. To achieve this, possible starting points are given, while taking different feminist perspectives into account. Keywords: naming laws, gender binary, gender construction, Butler, feminist legal theory

CONTENTS

Introduction ...... 6 Gender and feminism ...... 11 Building a foundation ...... 16 What’s in a name? ...... 21 Naming practices and gender construction ...... 26 Case studies ...... 30 Germany ...... 30 Denmark ...... 36 Conclusion ...... 41

INTRODUCTION

“One is not born, but becomes a woman”, a famous statement by Simone de Beauvoir in 1949, signifies the fundamental rejection of biological definitions within feminism (de Beauvoir, 1973, p. 301). Although the concept of ‘gender’ was not yet introduced at that time, the quote reflects the body of thought behind its notion: that the division between men and women is a social one and that gender should be seen as a social attribute instead of a natural one (Rahman & Jackson, 2010). Since its introduction, gender has been an exceedingly important concept within feminist and gender studies. Many discussions have fixated on the meaning behind gender and its potential for feminist movements. One of the most influential views on gender has been given by Judith Butler, in her book Gender Trouble (1990). In her work, Butler contests the split between sex and gender, arguing that both are socially constructed. Butler expresses great criticism against the gender binary: the division of gender in man and woman. For Butler: “bodies cannot said to have a signifiable existence prior to the mark of their gender” (1990, p. 8). The two quotes given above, may leave the reader with an image of a baby. It makes you question if and when gender construction starts. Before someone is born, a sex is often already ascribed to their body. One could argue that an individual gender construction begins at that very moment. Parents are often socialised into constructing a babies gender before it is born. A relatively recent trend, gender reveal parties, makes an explicit example. Feminist scholars have made a connection between this trend and a reinforcement of the gender binary (Applequist, 2014). Furthermore, the process of naming a child, the choosing of a forename, can also been seen as a form of gender construction. An extensive amount of studies has shown the importance of forenames, through denoting ones individuality, but also marking ones social connections (Finch, 2008). However, little research has been done on the connection between forenames and gender construction. Plicher (2017) is the exception, she makes a strong plea in her article “Names and “Doing Gender” that forename practices are at the core to the production and reproduction of the gender binary. As she argues, forenames have important cultural work in ‘displaying’ sex and gender. Forenames help ‘creating’ gendered identities. Taking this back to Butler’s quote, forenames operate as ‘markers’. This research will focus on

forename practises and their reinforcement on the gender binary. Naming practices of parents do not exist in a vacuum, they are, of course, highly influenced by social construct. To follow a Foucauldian approach, gender is socially constructed and can be thought of as a result of discourse. Although Foucault’s work has mostly focused on sexuality (1978), his approach is also applicable to gender. A Foucauldian perspective will be used within this research, to illustrate how one comes to life within a constructed society even before one is born. Naming practices thus not solely reinforce the gender binary, the gender binary system is entrenched and institutionalised within society. There is no ‘start’ or ‘end’ in gender construction. Examples of the institutionalisation of the gender binary can be found in numerous laws. Besides discourse, laws influence and bound one’s identity possibilities. Laws help to establish normative and non-normative identities. Because laws restrict people to stay within the ‘norm’, it is important to start the research on forename practices and its reinforcement on the gender binary at the base: naming laws. Naming laws are laws that regulate naming practices within a country. Parents are obliged to follow the rules that are within these laws. A common law is that a child cannot have a swearword as forename. Most of the countries within Europe have this law. However, some naming laws are explicitly about gender. In this study, the naming laws of two countries, Germany and Denmark, will be analysed for its relation to the reinforcement of the gender binary. In the next short sections, I will discuss the methods that are used, shed light on my politics of location and introduce the following chapters.

Methods In this study, the research question will be: “How do naming laws in different European countries create and reinforce the gender binary?”. The sub questions will be “What is the relation between naming practices and the gender binary?”, “What are the consequences of naming laws on gender?” and “Which modifications could be suggested for the naming laws to minimalize the reinforcement of the gender binary?”. The aim of this research is to show how deeply entrenched the gender binary is in our lives, by means of laws that restricts one’s freedom in choosing another ‘truth’ than the gender binary. This research should be read as a plea to repeal these laws and subsequently tear down the gender binary system little by little. For this research I have conducted a literature analysis, a comparative law analysis and a content analysis. The chapters one, two three and four will discuss the outcomes of my 7

literature analysis. Gender and feminist studies have always been denoted by their interdisciplinary character (Hesse-Biber, 2002). This research is no exception, the literature analysis included works from criminology, feminist studies, gender studies, psychology and sociology. The academic search engines Google Scholar, WorldCat and Web of Science were utilised to gain access to literature. Words such as: “forenames”, “naming”, “practices”, “gender”, “performativity”, “binary”, “non-binary”, “genderqueer”, “parents” “doing gender”, “laws”, “institutes”, “European” were used to find the right bodies of work. I have tried to take Hemmings (2011) citation tactics into account, by what she calls ‘feminist recitation’. This citation tactics consist of acknowledging and citing feminist work that is used by other feminist scholars to build upon, instead of citing the most known, dominant works. In this way, the academic narratives will be re-written. Unfortunately, this became harder once I included more work from different disciplines. For the case-studies, I conducted a content analysis and a comparative law. For the latter, feminist legal methods have been used. In chapter Feminist legal methods (2012), Barnett distinguishes methods for feminist doing that creates feminist knowing. For the comparative law analysis, the perspective of the feminist critical legal movement is used. Feminist associated with this movement have “stressed both the indeterminacy of law and the extent to which law, despites its claim to neutrality and objectivity, mask particular hierarchies and distributions of power.” (Barnett, 2012, p. 878). Conforming to the feminist practices of this movement, I have tried to deconstruct the role of the gender binary in naming laws based in laws and legal assumptions. German and Danish laws, regulations and precedents regarding naming laws and gender have been used for this comparative analysis. I have chosen Germany and Denmark, as they differ from each other in their legal situations. This increases the chance of more insights. They do however, both have naming laws in which the gender binary is at its core, making them suitable for the aim of this research. As there is no previous research on naming laws that specifically focuses on the gender binary, I had to search the relevant laws, regulations and precedents myself. For the German case study, I have searched on google and on German jurisprudence websites such as bundesverfassungsgericht.de, dejure.org and research.wolterskluwer-online.de. For the Denmark case study, I searched on google, and on retsinformation.dk. Unfortunately there were no jurisprudence websites available. Furthermore, a critical discourse analysis is used to analyse the discourse produced in

these laws, regulations and precedents. Critical Discourse Analysis focuses on oppression and power structures within texts. CDA aims to analyse the links between text and society to expose these relations through interpreting the content and context in discursive practices (Fairclough & Wodak, 1997). Because this research aims to expose the oppressing nature of the gender binary, CDA fits the goal of the research well. Because the content of laws, regulations and precedents of different countries are analysed, I had to use translated discourse for my analysis. This is an important weakness of this research that needs to be taken into consideration. When language is removed from its original context, it is changed. Although I have tried to translate carefully, with the help of translation programmes and friends, I still consider this as a downside. I have tried to minimise this downside by providing the reading with the quotes in the original language, so readers can evaluate my translation. With a combination of the described methods, I want to raise more awareness on naming practices being a distinctive gendered process. I will now focus on my own positionality.

Politics of location Throughout this research, I have tried to be aware of my own positionality, by using Haraway’s concept of “situated knowledges” (1988). Haraway argues: “Objectivity turns out to be about particular and specific embodiment, and definitely not about the false vision promising transcendence of all limits and responsibility. The moral is simple: only partial perspective promises objective vision” (p. 190). Positionality rejects the objectivity of truth, and rather sees the truth as situated and partial (Barnett, 2012). This research is influenced by my strong belief that the gender binary system does injustice to everyone. Throughout my life, I have felt hindered by the consequences of this binary system: the separation of people in two categories, the gender roles and stereotypes. The gender binary is not only enforced through discourse, institutionalised gender policing, but also through affect. The front page shows art work I made from my experience on baby names websites. My motivation is grounded in these experiences as well as my fascination for names and their symbolic character. With this research, I want to provide a critical view on naming practices as a ‘gendered process’. Because of my Dutch background, I automatically evaluate some names as ‘female’, ‘male’ and ‘unisex’. Although I do not agree with this evaluation in general, as I want to refrain myself from putting a gender label on a name, it was interesting to see how I did it automatically and how influential my Dutch background was in labelling names in other cultures and countries. 9

Through my academic background in criminology I have realised how laws can be exclusionary and how laws have a tremendous influence on people’s lives. Therefore, I think it is important to make people aware of the specific institutionalisations of the gender binary within the law.

Layout In the next chapters, I will demonstrate how the naming laws uphold and reinforce the gender binary. In the first two chapters, I will try to take the reader with me in my thoughts prior to this research. In chapter one, Gender and Feminism I will give a short summary of how the concept of gender has travelled through time. In chapter two Building a foundation, I will explore theoretical reflections whilst building further on the literature in chapter one. In chapter three and four, I will focus on the meaning of names. In chapter three, What’s in the name, I focus on their symbolical meaning and in chapter four, I will focus on its meaning for ones gender construction, which is crucial in this research. In chapter five, I will analyse the two case studies: Germany and Denmark . After this chapter, a conclusion will be given.

GENDER & FEMINISM

“The Male and the Female are complementary, in no sense the same, in no sense equal to one another” Heape (quoted in Moi, 1999, p. 11)

This quote represents the biological determinism which fuelled the drive of feminists. It is no surprise that the concept of gender has been deliberated extensively throughout the history of feminist and gender studies. In this chapter, the ontology of gender will be reviewed, by addressing the most distinctive periods, paradigms and perspectives. The aim of this chapter is not to give an all-encompassing overview, this would simply prove too much of a challenge. Rather it wishes to leave the reader with a compact summary of the usage of gender.

The two-sex model and biological determinism In Making Sex, Thomas Lacqueur argues that the concept of ‘sex’, as we now understand it, was not invented until the eighteenth century (1992). Before this period, a one-sex model was in place that considered women’s anatomy as not fundamentally different than from men’s. Women and men were seen as different arrangements of the same parts. The anatomical differences were portrayed as hierarchical, instead of complementary. The shift to a complementary view, as illustrated in the quote above, is conceptualised by Lacqueur as the two-sex model (1992). In this model, the reproductive system of the Male and the Female are deemed so fundamentally different, that this influences ones every part. Thus, the Male and the Female are seen as opposites, divided in two different teams (Moi, 1999, p. 10- 15). One should keep in mind, by interpreting these models, that the concept of gender, not yet constructed at that time, is irrelevant in these two models. Sex and gender were not seen as distinct from each other. The two-sex-model formed the basis of the biological determinism that dominated in the nineteenth century. Its emergence coincides with the shift from theology and philosophy towards science. Science on the body, as an ideological recourse, was now used to put women in place (Rahman & Jackson, 2010, p. 16 - 19). Biological determinism theorists often follow similar arguments, including: 1. The characteristics of the reproductive cells saturate the adult human organism and 2. Biological facts justify social norms (Moi, 1999, p. 15 - 20). The 11

biological difference between women and men is used to make claims on how they would differ socially. For example, the ‘fact’ that sperm cell is the originating and the ovum the perpetuating factor1, would result into men being more active, passionate and women being more passive and conservative. In her thorough analysis in “The Egg and the Sperm”, Emily Martin (1991) expounds on this further. Because of the characteristics, the oppressed position of women is thus deemed ‘natural’. So, no distinction is made between sex and gender. Biological determinism has greatly shaped, and still actively shapes how people think about sex and gender. The foundation of many gender roles and stereotypes can be traced to its body of thought. In her book What is a Woman? Toril Moi demonstrates how biological determinism has compelled feminists to create a distinction between biology and social norms, also known as the sex/gender distinction. This essentialist way of thinking was still dominating the cultural values and beliefs around women and men during the 1960s and 70s, when the second wave feminism movement was developed.

Sex/gender distinction in the 1960s and 70s The sex/gender distinction can be traced back to this movement. However, as discussed in the Introduction, feminists before this movement, such as Simone de Beauvoir, were already separating biological differences from social differences. They showed that the social division between women and men was made by society. This was even before the concept of gender was introduced. The concept Gender was coined by John Money, a psychiatrist in 1955. To develop a theory on intersex infants, he introduced the term gender identity. Although gender was coined in 1955, feminist did not pick up on the concept until the 1970s. Two important feminist works helped to establish gender as a concept. The book Sex, Gender and Society (1972) of Ann Oakley, contained the strong argument that gender should be understood as a matter of culture, rather than a matter of biology. Gayle Rubin also made this argument in her essay “The traffic in women: Notes on the ‘Political Economy of Sex’” (1975). She writes about

1 The male-oriented view of female reproductive biology has influenced research greatly. The role that social construction has played and plays on research is unfortunately still not recognised more broadly. On this particular topic there has been some progression. The view on females as passive object within the fertilization has been challenged more, recent articles now view the egg as an equal and active player in reproduction (Nadeau, 2017). 12

the sex/gender system, which she define as “the set of arrangements by which a society transforms biological sexuality into products of human activity, and in which these transformed sexual needs are satisfied” (p.159). These works represent the sentiment that was held by most of the feminists around that time: that there is a strong difference between sex and biology. There should be a clear distinction, in which sex means biology, male and female, and gender means social norms. The social position of and hierarchical relationship between men and women can thus not be reduced to biological sex. Within this perspective on gender, the term cisgender was introduced by transactivists in the 1990s (Aultman, 2014). Cisgender can be used to describe “individuals who possess, from birth and into adulthood, the male or female reproductive organs (sex) typical of the social category of man or woman (gender) to which that individual was assigned at birth” (Aultman, 2014, p. 61). The term was used to change the unstated ‘naturalness’ of being cisgender. This term is clearly in line with the sex/gender distinction.

Women ‘differences’ Naturally, not all feminists agreed with this perspective. They disagreed, however, on different grounds. As not all can be discussed here, I will focus on the main approaches. First, there was a group of feminists who followed a body of thought that remained focused on the sexual difference between man and women. They did not take up the concept of gender but analysed the position of women within society through their biological differences while keeping an essentialist perspective (Rahman & Jackson, 2010, p. 40-42). As one can imagine this created challenges. After all, how can one challenge social norms when arguing that women’s position is fixed within biology. Some of them did call for social action to challenge their oppressed position, and thus opened up a window for social constructionism (see for example Firestone, 1972). The focus on biological difference is still relevant in some of today’s feminist theories and perspectives. Feminist who follow the ‘difference theory’, also remain focused on sexual differences, although with another premise and another goal (Braidotti, 2017). This theory is set up with the idea that the only reasonable way for women to resist sexual difference, is to assert sexual difference. So, in order to become equal, one has to work through these differences that create inequality between men and women. Luce Irigaray, an important ‘difference feminist’, has given examples of how the social position of women can change by

working through sexual difference (Irigaray, 1985). The critiques ‘difference feminism’ most often receive is that some feminist find the theory too essentialist (see e.g. Moi, 1985, p. 139 – 149; Plaza, 1980; Butler, 1990, p. 30).

A poststructuralist view Besides these feminist scholars, that did not incorporate the concept of gender in their analysis of the position of women, there were also feminists who critiqued the use of gender by second wave feminism discussed before. They did not agree with the use of sex as solely a matter of biology. They argue that this makes sex ahistorical and disembodied from historical and social meanings (Moi, 1999, p. 30 - 31). This critique was the base of the poststructuralist view on sex and gender. Their critique contained two broad aims: 1. To avoid biological determinism and 2. To develop a historical and non-essentialist understanding of sex. Moreover, they oppose the binary understanding of the sex and gender distinction. Judith Butler has provided one of the most important work for the poststructuralist view on sex and gender. Butler argues that sex is as culturally constructed as gender, both concepts are product of the same norms and that gender is a performance. Butler has received critique on the absence in her work on the materiality of the body. She has tries to show how the body can be material and at the same time be constructed in Bodies that Matter (1993). There are many different perspectives that fall under the poststructuralist view on gender, but they all have in common that they contest the clear distinction between sex and gender. This research takes a poststructuralist perspective on gender. The work of Butler will be used as a foundation to analyse the relation between naming practices and the gender binary. In the next chapter, Building the foundation, this will be addressed further.

Political goals Discussed broadly above are some key perspectives on gender within feminist and gender studies. However, it has not become clear what feminist perspectives and scholars aim regarding gender: how do they see the future of gender? In Lorber’s article (2010) “Gender inequality” she categorises feminist movements and their aim for gender equality. She distinguished three forms. I will shortly discuss each form. Gender reform feminisms. These forms of feminism predominated the 1970s. As

discussed in the section ‘the sex/gender distinction’, the focus was on showing the different ways in which social norms in the society produces a gendered social order. Their political goal is to achieve gender balance. The gender binary is accepted, but the gendered social order has to be more equal. Gender resistance feminisms. These forms of feminism were developed in the 1980s. They moved away from the goal of gender balance, stating that the male dominance was too overwhelming. Therefore, they aim for women first, women should create their own spaces and places in society. This approach still accepts the gender binary, but not it gendered social order. The above discussed ‘difference theory’ is an example of gender resistance feminism. Gender rebellion feminisms. Feminist that fall under this approach, see gender as a social construct. As discussed above, poststructuralist feminists are in line with this approach. Their goal is to deconstruct gender categories, which would overturn the gendered social order, and this would make way for a non-gendered social order. This can be done by ‘queering’ categories. Furthermore, they try to undermine the boundaries between man and woman and to deconstruct the gender binary. For example, Fausto-Sterling (2000, p. 78 - 81) has called for more gender categories and a more open-ended understanding of the meanings of those categories. Although the gender rebellion feminists aim is to deconstruct gender categories, they often do accept the very existence of gender. Bornstein provides another perspective. In her book Gender Outlaw (1994) she calls for the end of gender and a new, alternative system of making sense of bodily differences. This research and its theoretical framework falls within gender rebellion feminism.

Concluding remarks It is exciting to read how gender has developed through all those years by feminist and gender scholars. The ‘end’ of gender seems a long way off, but it is useful to think beyond the constructed concepts. This thesis will take the perspective of gender rebellion feminism and of deconstructing gender, as it tries to argue for a possibility of social norms that do not include gender as a category. In this chapter, I have tried to give the reader a short summary of the way gender has travelled through feminist and gender theory. I shortly introduced Judith Butler’s perspective on gender that will form the base of this research. The next chapter will start from the aforementioned perspective, while discussing other important theories and concepts.

BUILDING A FOUNDATION

“The individual is the product of power” Foucault (1983, p. xlvi)

Butler’s body of work has inspired many feminist scholars over the years (Halberstam, 2014). Her work has formed the base for gender and queer studies (Rahman & Jackson, 2010, p. 128- 129 ), as she moved passed the sex/gender distinction. Her work is closely related to Foucault’s perspective on power and knowledge. Foucault’s body of work has inspired, although simultaneously agitated feminist scholars (Taylor & Vintges, 2004). The works of both scholars will serve as starting points for this research. In this chapter, theoretical reflections will be discussed. To introduce the reader further into the topic, key theories and insights will be explored and important concepts that are used subsequently are presented. This will build the foundation for the following chapters.

Foucault and gender Starting with Foucault, gender and queer studies have mostly engaged with his approach to sexuality (Rahman & Jackson, 2010, p. 42 - 44). In his four-volume History of Sexuality (1978), Foucault analyses sexuality in the Western society. Foucault approaches sexuality as socially constructed and as a result of discourse. This discourse does not reflect a ‘truth’ but creates meaning instead of the other way around (Foucault, 1979). Discourse is based on practices of power and knowledge (Rouse, 2005). In History of Sexuality, he gives an example of this process by discussing confessions. During confessions, a form of power, people must ‘tell truths’, a form of knowledge production, about their sexual needs and their emotions. Through this form of discourse, people came to think of sexuality as a core of the self, a form of being and thus as a form of knowledge. This identity then became something that needed to be monitored and controlled, which is a form of power. Foucault saw power not as a domination of the state on society, but as the multiplicity of force relations that operate within a certain context (1978). Rules regarding sexuality are permeated through discourse in the society. In this research, Foucault’s theory will be applied to gender, and will be used, more specifically, to contest the gender binary. An important concept that will prove useful, is Foucault’s notion of subjectification. This concept refers to the process in which the individual

is led to see herself as a domain of possible knowledge (Steward & Roy, 2014). Foucault writes “It operates as a form of power that applies itself to immediate and everyday life, which categorizes individuals and attaches them to their own identity, imposes a law of truth on them that they and others must recognize in them – a form of power that makes individuals subjects – and submits them to others in this way”(Foucault, 1983, p. 212). While reading this quote with a specific focus on gender, it seems to be closely related with gender construction, that will be discussed further later on. The use of the word ‘truth’ in this quote has a specific meaning. Foucault shows how power is a certain type of relation between individuals that is intertwined with a conception of ‘truth’ (1979). As Donna Haraway argues, ‘truth’ is culturally constructed and often takes on hegemonic forms (1988). The gender binary can be considered a form of ‘truth’ that is constructed in our society. From a Foucauldian perspective, because of this ‘truth’ and through discourse and subjectification, people identify themselves as belonging to one of the two genders. It is important to reflect on how suitable Foucault’s work is on gender. Feminists scholars have been trying to do so since 1980 (Turner, 2000). Because of his disregard to gender, and thus gender oppression, feminist scholars have been highly critical of his work (see Ramazanoglu, 2002). Indeed, some of Foucault’s argumentation are outright blind for the specific oppression women face under the deployment of sexuality. One example is his stated support for the decriminalization of rape as defined as a sexual crime in “Confinement, psychiatry, prison” (Foucault, 1977, p.200-202). This statement caused tremor among feminist scholars (Cahill, 2000), specifically because of his disregard in incorporating the power relation between men and women. However, as Turner argues in his Genealogy of Queer studies: “From both feminist and Foucauldian perspectives, the division of intellectual effort in literature, politics, philosophy and so forth seemed like the choice of a European "heterosexual" man- .. who takes his own identity as scholar for granted, using that identity as the basis from which to pursue dispassionately truthful accounts of the world.” (p. 104 – 105). Thus, Turner argues that despite of Foucault’s gender-blindness, feminists and Foucault share the same ground belief: ‘truths’ regarding gender and sexuality are based on the perspective of a heteronormative, white man. Foucault’s work is, besides lacking attentiveness towards gender oppression, most criticised for lacking a theory of agency, a theory that would give practical value to resistance

(Moussa & Scapp, 1996). This has also proven problematic for feminist scholars who want to use Foucault and, furthermore, proves problematic for this research as it contests its very aim. If the individual is a product of power and discourse, how come many try to resist the hegemonic ‘truth’ of a two-gender system? However, Foucault does recognise that there are other alternative or counter-discourses, that are marginalised. He first introduced the term counter-discourse in one of his conversations with Deleuze: “when those usually spoken for and about by others begin to speak for themselves, they produce a “counter- discourse” (Deleuze & Foucault, 1977, p. 209). When ‘former’ voiceless begin to produce such a counter-discourse, they start to resist the power that seeks to oppress them. The term counter-discourse should not be seen as another theoretical concept, but merely a “practical engagement in political struggles” (Moussa & Scapp, 1966, p. 89). Although it is important to bear these critical reflections in mind, Foucault’s work does provide some essential insights for this research.

Butler and gender Closely related to Foucault and to each other are the perspectives of Judith Butler and queer theory on gender. As this study focuses besides naming laws, including the influence of naming practices on gender construction, it is important to realise that before one is born, an identity category is often already ascribed, shaping it into a gendered body. Butler argues that sex is as culturally constructed as gender and that both concepts are product of the same norms (1988). Butler sees gender as a dramatic performance, created through constituted acts. Bodies actively enact gender through language, social signs and gestures (1990). Thus, gender is not prior to its acts, but becomes an identity through acts, which she calls ‘gender performativity’. Her work is based on the Foucauldian insight that gender is applied through disciplinary practices on bodies. Her concept of gender performativity is closely related to the concept of subjectivation, discussed above. These processes have a ‘naturalising trick’, in which gender and sex appear to be natural. Butler takes on Foucault’s view on how discourse produce identities (1990). An example is how people define a new born child as ‘girl’ or ‘boy’. Through the repetition of this discourse “it’s a girl/it’s a boy”, an effect is produced that makes the gender binary seem natural: “The action of gender requires a performance that is repeated” (1990, p. 140). Butler argues that a misreading of the gender ‘script’ results in social punishment. In order to create one’s own gender identity, to perform gender, individuals who are non- 18

normative gendered are rejected (1990). Some scholars call this reinforcement of cis-gender identities gender policing, when the gender binary is reinforced through practices such as social punishment or endorsement and discourse (Ward, 2013). However, as Butler would argue, everything what we do already involves gender, so there is no specific form of gender policing. As gendered is policed in every interaction, this research will only define explicit forms of social punishment as gender policing. In chapter four Naming practices and gender construction the concept will be discussed more thoroughly. Butler’s perspective on gender helps to understand how naming practices and gender construction are inevitable linked. In chapter four Naming practices and gender construction this will be analysed further. The theories and perspectives discussed above, all show that the gender binary influences everyone. Research on the gender binary often focuses on people who do identify themselves within this system, such as genderqueer, non-binary and intersex. However, this study aims to show that the gender binary system inhibits limited identity possibilities, making it an oppressive system for everyone. The perspectives within queer theory will proof useful for this aim. Queer theory holds a perspective that identity categories are homogenizing, will overlook differences between those categorized and can lead to problematic forms of politics (Valocchi, 2005). This research will take on these perspectives, by recognising the power categories inhibit.

Feminist legal theory As this study researches naming laws and their reinforcement of the gender binary, it is important to reflect on the power of laws. The work of Foucault and Butler mainly focuses on discourse. Especially Foucault sees discourse as power, that is produced within a society from the bottom up. This creates tension with the focus of this research on the power of naming laws. explain and illustrate the power laws impose on people, Feminist legal theory will be used. Feminist legal theory or feminist jurisprudence is a type of scholarship that “draws from the experiences of women and from critical perspectives developed within other disciplines to offer powerful analyses of the relationship between law and gender and new understandings of the limits of, and opportunities for, legal reform” (Bartlett & Kennedy, 2018). The first feminist legal theory movement started in 1960 and has since then evolved in various perspectives. They all share two things, an observation and an aspiration (Levit, Verchick, & Minow, 2016). First, they try to analyse the ways in which law plays a role in the subordinate position of women. Besides 19

that, they try to enhance the position of women by reworking the law and its approach to gender (Levit, Verchick, & Minow, 2016). Especially within the first pillar, it becomes clear how much power laws inhibits. As an institution it can reinforce and upholds certain ‘truths’. As Katharina Bartlett and Rosanne Kennedy put it: “Law is power” (Bartlett & Kennedy, 2018, p.4). Although the law is not solely responsible for the nature and the direction of social realities and change, it does create meaning and shapes lives on a big scale through its content and precedents. Within feminist legal theory there are different perspectives on gender. The perspective one takes upon gender, naturally influences how one thinks what the law should reflect. Various feminist legal scholars have analysed this and while some argue that the law should inhibit protection for victims of the gender hierarchy, others argue for a complete deconstruction of gender within the law (Bartlett & Kennedy, 2018; Williams, 2018). Joan Williams produced a different perspective (2018). In her work ‘Deconstructing Gender’ she rejects gender-neutrality and instead argues that gender should be ‘deinstitutionalised’. She advocates that gender-neutrality is the last thing we want in the law, as the focus on gender protects the very oppression people face through their gender stereotypes. The law should be made sex-neutral, so people can be protected by the reference to their social roles instead of their genitals.

Concluding remarks Because this research aims to show how naming laws reinforce the gender binary, it is important to realise that people are born within a system, where the individual is made and shaped by power. Foucault, Butler and feminist legal theory show different perspectives on these processes of power. In this chapter, theoretical reflections are discussed that helped build the foundation for this research. In the next chapter, the symbolic nature of forenames will be discussed.

WHAT’S IN A NAME?

“What is your name? Hester. Esther? No, Hester!” de Boer (repeatedly)

This interaction often plays out when I meet new people. All of these times, I felt the need to correct people, to let them know who I really was, Hester. Over the years, it happened so often, that I can play it out in my head. It has become a repetition. The identification with a name does perhaps not exists without this repetition, when you become one with the name that is ascribed to you. A name is so entrenched in ones being, that the question “Who are you?” is often followed by a given name. In this chapter, I will explore the symbolic meaning of names.

The definition of names First, it is important to note that this chapter will mainly focus on names within the European context. Although having a personal name is seen as a universal amongst humans, anthropologists have not yet found a society or community in which personal names are not used in some form, how these names are used differs greatly per culture (Bramwell, 2016). It would be a shame to disregard the fascinating variety by putting it all on one pile. Names have been used as indicators of identity, such as gender, descent and religion. Besides indicators of identity, names also serve as an indicator of biographical changes, such as adulthood, marriage and maternity (Bramwell, 2016). Within the study on personal names, Anthroponomastics, there are different perspectives on why we name people. Lévi Strauss (1962) has provided a perspective that is still one of the most influential and that will be used in this research. In his book The Savage Mind he reflects on names: “At one extreme, the name is an identifying mark which, by the application of a rule, establishes that the individual who is named is a member of a preordained class (a social group in a system of groups, a status by birth in a system of statuses). At the other extreme, the name is a free creation on the part of the individual who gives the name and expresses a transitory and subjective state of his own by means of the person he names” (1966, p. 118).

Lévi-Strauss sees naming practices mostly as a form of social classification, instead of a form of individualising people. In the next chapter, the concept of social classification will be discussed more in-depth.

In Europe, most people have a first name, a surname and sometimes a middle name. This naming system, however, has not always looked the same. In the earliest period researchers found record of names, in the pre-Christianity (BC), people were given only one name (Leibring, 2016). If there were too many namesakes, people would be given a byname, characterising their ancestors, homeland or events in life. The naming system became more complex during Roman times, around the seventh century BC. The name of a free male citizen would consist of three parts, the prænomen (firstname), the nomen gentilicum (the father’s family name), and the cognomen (surname or byname). Women had a prænomen that was a feminine form of a male forename, or a name describing one’s kinship. Subsequently this changed, giving the free-born women the same names as men (Leibring, 2016). The system introduced during the Roman times is still used in Europe today, although in a slightly different form. This research focuses on first names, also known as given names. A given name is defined by Bramwell (2016) as “the name (or those names) bestowed on an individual, in most instances a very young child, with the purpose of individualizing this child; to separate him or her as a person from other people in the vicinity. This purpose is combined with the aim of including the child in the family and in the (local) society. In many European languages, an equivalent to given name would be first name”(p.200). There are some typical European characteristics in this definition such as the name being bestowed on the child. This is in contrast to alternate cultures where people are expected to enter a name; the name will become clear during their lifetime and it will match their personality or social role (Maybury- Lewis, 1984). In Europe names are often given to babies, and names are expected to remain the same for a lifetime. It is also interesting to observe that European naming practices are often focused on individualising the child, especially when looking at trends such as naming practices of unusual names (Zweigenhaft, 2013). However, social classification does form the base of these naming practices.

The study of names The fascinating nature of names has led it to be the subject of research within anthropology, psychology, child development, sociology and so on. Both sides, the individualising and the social classifying side have been researched thoroughly. These sides also represented the dual

character of names (Finch, 2008). On an individual level, names have been brought in relation with physical attractiveness (Erwin, 1993), personality traits (Mehrabian, 2001), psychological well-being (Zeigenhaft, Hayes & Haagen, 1978) and self-identity (Dion, 1983). Especially the last one is interesting for this study. Personal names can express social values for the one how has been given that name, such as: “scripts for their lives, expression of the believes of expectation of their parents, clues to where they fit into society and what their duties are.” (Ashley, 1996, p.31). A name thus serves as an indicator for the development of a person’s identity. An example of how names and identity are closely related, is the practices of voluntary name changes (Emmelhainz, 2012). Name changes can occur after important life-events and can serve as a symbolic break with one’s identity or as a way to express a self-narrative. Name changes during gender identity transitions, probably both serve as a change in identity, but also as a tactic to show their social classification. On societal level, names have been research in relation to racism (Clifton, 2013), people’s socio-economic class (Tummala-Narra, 2016) and social labelling and exclusion (Galasiński & Skowronek, 2001). Names contain a lot of information about social order (Ashley, 1996). Especially within feminist studies, scholars have shown how names can be restricted in order to exclude (Bramwell, 2016). Feminists have been especially concerned about the practices of women taken up their husband’s surname, and children automatically receiving their father’s surname (Lamber, 1973). To achieve change within these naming practices, legal assumptions had to be analysed.

Names and the law For this research, it is important to explore the role law plays in names and naming practices. The United Nations Convention of the Rights of the Child declares in article 7 that every child has the right to a name from birth (OHCHR, 2019). The responsibility of naming a new-born, is in the hands of the parents and is a matter of personal right (Teutsch, 2016). However, the freedom of naming for parents is bound by legal constrains (Lawson, 2016). Through these restrictions, name conflicts can arise because of different reasons. One of them is “internationalization of naming, i.e. names that do not fit in a given legal system”. There are conflicts that emerge when there is a problem with identifying gender, when naming in countries that have a legal obligation to do so. Teutsch (2016) writes shortly about this in his chapter “Names and the law”. He evaluates the problems with gender identification and

multiculturalism, as it differs per culture and country if and/or when a name is deemed ‘female’ or ‘male’. However, he fails to identify the gender binary system within these conflicts as a root cause.

Gendered names When the meaning behind names is established “names are full of historical, cultural, and sociological information” (Ashley, 1996, p.31), it is interesting to look at the various names that are actually used in today’s society. Naturally, it is not possible to go into depth about all these different forms. The use of gendered names and unisex names will be discussed shortly. What do people consider ‘female’ or ‘male’ names? In the past, ‘women’s’ names usually originated from ‘men’s’ names such as Julia from Julius (Leibring, 2016). Nowadays the difference between gendered names is usually ascribed to custom. Some researchers have explored differences within linguistics. In American names, ‘female’ names are found to inhibit more sounds, more syllables and vowels than ‘male’ names (Slater & Feinman, 1985). However, this differs per culture and language, although through globalisation names are becoming more accessible (Leibring, 2016). The introduction of unisex names was, besides popularity, also seen as a means to put an end to the division between ‘male’ and ‘female’ names. A study in America found an increase in the use of unisex names from 1960s onwards (Lieberson, Dumais & Baumann, 2000). This increase is often ascribed to feminist movements (Barry & Harper, 1993). However, multiple studies have shown that the popularity of unisex names is usually brief (Barry & Harper, 1993; Lieberson, Dumais & Baumann, 2000). One possible explanation is that the names usually tend to evolve from masculine to unisex to feminine. However, the acceptance towards unisex or androgynous names have been increased among parents (Lieberson, Dumais & Baumann, 2000). In chapter five Case studies the use of unisex names will be discussed further.

Concluding remarks In this chapter, the meaning behind names within a European context is explored. This information is important for the next chapter, as it will connect naming practices with gender construction. Names reflect not only individuality, but also the belonging to social classes, such as gender. A name ascribes gender more frequently than any other characteristics of a child

(Lieberson, Dumais & Baumann, 2000). The next chapter will focus more specifically on gender and names.

NAMING PRACTISES & GENDER CONSTRUCTION

“Names are human artefacts that tell us much about … how the members of the society regard the world in which they live.” Ashley (1966, p. 31)

Many parents start to think about possible baby names during the pregnancy process, or even before. Most parents view the sex categorization of a child as the primary determinant of the forename choice (Larkin, 2006). When searching for names online, pink and blue colours are all over the websites, dividing the names into what most members of the society regard to be ‘true’: the gender binary. The relation between naming practices and gender construction will be discussed in this chapter. Although it is interesting to look at naming practices of parents who are adopting children at a later stage in life, this chapter is solely looking at naming practices of parents within a short period of time after birth.

A gendered body With the introduction of contemporary reproductive technologies, such as sex ‘determination’ through ultrasound, prenatal gendering is intensified (Larkin, 2006). These practices result in an increasingly early moment in which bodies are being gendered. Prenatal gendering seems to be increasing these days, with trends such as ‘gender reveal parties’ growing in popularity. The ‘gender reveal parties’ posted on Youtube, introduce you into a world full of binarism; female/male, girl/boy, pink/blue and cowboys/princesses: only two options are available. By ‘revealing’ a gender, the emphasis lies on the difference between the two options, as it is not the same to have a girl or a boy. Other possible identities, such as intersex and transgenders, are not considered. In her article, Nahata (2017) argues that these parties, as well as other prenatal gendering practices, are a symptom of society’s overemphasis on gender. People’s increasing interest in gender is an interesting outcome, as parents, although mostly white, middle-class women, claim to have no preference (Larkin, 2006). Partly because of this prenatal gendering, babies are brought into the world with a gendered body. Before or after birth, a sex is imposed upon the baby’s body, by using socially agreed biological criteria (Pilcher, 2017). The body is classified as female or male, which is mostly determined by looking at genitalia. After a sex is imposed on the body of the child, 26

parents have to choose a name. As stated before, gender has the biggest influence on name picking (Larkin, 2006). Names are used for social classification, mostly to describe index aspects of identity (Leibring, 2016), “the act of naming has the potential to implicate infants in relations through which they become inserted into and, ultimately will act upon, a social matrix” (Lévi- Strauss, 1966, p. 118). The name thus becomes a marker for a child’s gender. As seen in the previous chapter, a personal name is closely related to someone’s identity (Finch, 2008). During one’s life, a personal name is going to be the marker of one’s gender classification. One becomes a domain of possible knowledge, also described in the concept of subjectification of Foucault. A law of truth reads: a gender, is imposed on them that themselves and others must recognise (Foucault, 1983).

Gender construction Butler’s approach on gender (1990) is very useful to apply on naming practices and gender construction. She argues that through discourse, gendered identities are produced. Gender is constructed through repetition of discourse. This applies to ‘it’s a boy/it’s a girl’ discourses but can also be applied to the repetition of gendered names. These names are essential for gender performativity. For example, growing up with a gendered body and the gendered name Hester, my name became part of an act of gender. As a name is mostly ‘female’ or ‘male’ identified, it classifies children early on and becomes an inherent part of gender construction. In the United States, 97% of ‘female’ names are given to children who are gendered as women, furthermore, 97% of ‘male’ names are given to who are gendered as men (Lieberson, Dumais & Baumann, 2000). The practices of applying ‘female’ and ‘male’ names, reinforces the gender binary and makes the gender binary seem natural. These practices limit identity possibilities and the flexibility of overcoming gender classifications. What about children who do not receive a name that is viewed appropriate for their gendered identity? Butler (1988) did see possibility of gender transformation, by breaking the repetition of gender, proposing a different sort of repeating. These so called ‘parodies of gender’ is a form of resistance. Naming practices, in which parents do not conform to gendered name, could be seen as a form of a parody of gender. These parodies, however always seem to come at a great loss. In Figlio’s study (2007), boys who received a ‘female’ first name were more disruptive in school. On the other hand, girls who received ‘male’ first names, gain some

advantage. Because of their name, the likelihood of studying science and mathematics increased (Bryner, 2010). The name is thus so powerful as marker for gender, that it evokes gender roles and gender stereotypes. One could state therefore, that, in this case, the parody of gender does not come at a loss. Also, with unisex forenames, girls gained a bigger advantage and boys faced disadvantages (Lieberson, Dumais & Baumann, 2000). Lieberson and colleagues explained these differences by pointing out the power differences between women and men, “the advantaged group [boys] have more to lose in symbolic terms when their distinctive features are merged with the less advantaged population, that is, girls.” (p. 1285). The oppressed position of women in the society, also works through in naming practices.

Gender policing and naming practices Although parents are the main actors in naming practices, their practices cannot be seen apart from practices and dogma’s in society. The gender binary is a system so powerful, that it entrenches not only social practices, but also legal practices. Giving children ‘gendered names’, is enforced through gender policing. Online baby names websites show how gender policing influences naming practices. When parents go online to search for names a name outside the gender binary is often not even deemed possible. Although not direct, a form of indirect enforcement is certainly visible. My interpretation of these websites is given in Appendix 1, where I try to show how one can be overwhelmed by these website, by the constant ‘reminder’ of the gender binary system. Online communities are often dominated by hegemonic discourses, while alternative voices are excluded (Witschge, 2008). That gender non- conformity is met with suspicion, discrimination and violence (Pilkington & D’Augelli, 1995; Horn, 2007) does, unfortunately, not come as a surprise. After all, naming practices are a great example of the insistence on gender conformity. Therefore, online websites also represent this discourse. An example of how the insistence on gender conformity can play out online, is the website “the gender checker”(www.genderchecker.com). When there is even the slightest possibility of not knowing someone’s gender through their name, this is solved by the gender checker, in which the name runs through a system and comes out gendered Institutionalised gender policing, is not another form of indirect enforcement. Because of gender policing by institutions, people often have simple no other option. In some countries, parents are bound by law to make sure that a name “allows a clear gender assignment”

(Teutsch, 2016). The social classification of gender is so deeply rooted in our society, that any ‘confusion’ must be ruled out by law.

Concluding remarks In this chapter, the relation between gender construction and naming practices is analysed. Through ‘gendered’ naming, a gender is already ascribed to a body of a child before it is born. Throughout one’s life, a name is seen as a marker for someone’s gender identity. The significance of identifying an individual’s gender is reflected in naming law practices. In the next chapter, I will analyse two countries in which these laws exist. I will explore the discourse used in these laws and what and who is left out. Moreover, it will show how far the gender insistence reaches.

CASE STUDIES

“Consciousness of exclusion through naming is acute. Identities seem contradictory, partial, and strategic.” Haraway (2006, p.5) Because of the individualising nature of names, they are subject to personal rights (Teutsch, 2016). To protect these personal rights, naming laws are in place. On the other hand, names are also used for social classification, hence the restrictions within the laws. In Denmark and Germany, the name has to give a clear gender identity. This is not unique, there are more countries in the world with a gender restriction in the naming law. However, within Europe, only Iceland and Hungary also know these restrictions. This research focuses on Denmark and Germany, as the legal situations within these countries differs greatly, but the reinforcement of the gender binary becomes clear in both case studies. In this chapter the two case studies will be discussed and I will show how these situations can be complex and ever changing. The aim is not to show how ‘bad’ or ‘relatively good’ these situations are, but to convince that these institutionalised forms of the gender binary need attention.

Germany: bounded by law or by customs?

The legal situation in Germany regarding naming practices and gender is complex. In the Grundgesetz für die Bundesrepublik Deutschland (Basic Law), there is no mention of names or gender (2019). Nor in the Gesetz über die Änderung von Familiennamen und Vornamen (2019), the naming law, gender is mentioned. One can search high and low, but a specific law that bound parents to pick a name that “allows a clear gender assignment” is nowhere to be found. However, the gender-specific naming rule does apply and is based on precedents. The legal situation in Germany is interesting for this chapter, because of two reasons. First, the omission of gender in the naming law perhaps creates the very complex situation. Secondly, there is a lot to learn from the German history of the legal naming situation and gender. Before these reasons will be further discussed, a little background information will be given. When a baby is born, parents have to register the baby at the Ministry of Interior. The registrar has to register the baby by name and gender in the birth register. Instructions for the registrar are given in Allgemeine Verwaltungsvorschrift zum Gesetz über die Änderung von Familiennamen und Vornamen (2019), General instructions for the naming law. Based on article 30

13 of the naming law, the registrar is allowed to refuse a name, although this is not legally binding. Parents can go to court to appeal this decision. In 1995, an important court case OLG Frankfurt am Main 20 W 411/93, ruled that foreign names (see: Nicola, Italian) were allowed in Germany, even though they were ‘destined’ for the opposite gender in the German language. When this case was carried out, the rule ‘for persons of male sex only male, and for persons of female sex only female given names are allowed’, was based on precedents (BVerfG StAZ 1983, 70 & BGHZ 73 239) and, sadly ironic, the Transsexual Law (Transsexuellengesetz) §8 paragraph 2. In these precedents, parents appealed against the registrar’s decision that their chosen name was not acceptable. In these law cases, parents used article 2(1) of the Basic Law: “Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.”2 By not having the freedom to choose their child’s name, they are limited in their right of personality. However, in BVerfG StAZ 1983, the court decided that “By rejecting the request to enter the first name "Heike" as the sole first name for a girl, the parents are not affected in their right to free development of the personality”3. The court ruled in ‘favour’ of the child’s right, as article 2 (1) can be limited when it violates the right of others. The ruling in favour of the child’s right of personality is an important theme that will be discussed later on. In the quote, the court mentions ‘sole’ first name, as in OLG Dusseldorf StAZ 1989 was decided that, in the case of a gender-neutral or regionally different first name, a second ‘gender-corresponding’ first name must be attached. Over the years, the legal situation changed and the legal naming situation regarding gender became less strict. Migration and globalisation seemed to be the main reasons for these changes (Teutsch, 2016). More and more conflict arose regarding the nationalistic rules that were applied to assess if the name was ‘gender-corresponding’ (Nübling et al., 2012). After all, ‘gendered’ names are culturally specific. Two cases created more leniency towards ‘non- corresponding gender names’. One example is already mentioned above, with the Italian name Nicola in OLG Frankfurt am Main 20 W 411/93. As the name is perceived in the German

2 Original: “Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, soweit er nicht die Rechte anderer verletzt und nicht gegen die verfassungsmäßige Ordnung oder das Sittengesetz verstößt.”. Translation by Bundesministerium der Justiz und für Verbraucherschutz. Retrieved from: https://www.gesetze-im-internet.de/englisch_gg/ 3 Original: “Durch die Zurückweisung des Antrags, den Vornamen "Heike" als alleinigen Vornamen für ein Mädchen einzutragen, werden die Eltern nicht in ihrem Recht auf freie Entfaltung der Persönlichkeit beeinträchtigt”. Translation by HdB 31

language as ‘female’, the couple was first denied registration. The court ruled in favour of the parents, arguing that, from the first name, in combination with the family name: “it cannot be assumed that the chosen forenames are causing a wrong assignment of the child to the opposite sex.”4. Furthermore, they argued that “apart from this, government entities (such as civilian service authorities) are no longer dependent on the first name to identify a person, especially since they have enough other documents from which the gender results anyway.”5 This ruling, could have changed the legal situation of gendered naming practices drastically. Unfortunately, this ruling has not been used in further court cases. Another example of a precedent that created more leniency, is BvR 576/07 in 2008. This case involved the name Kiran, an Indian name. The parents wanted to ascribe this name to their daughter. In the German language, names that end on -an, are usually ascribed to males and as the name in India is both ascribed to females and males, it did not fall under the precedent of Nicola. The court ruled in favour of the parents and decided that Kiran as sole name for a female was allowed. They argued that the first name is important for the child’s personality, because it helps the child to find his identity and to develop his individuality. The well-being of a child is best secured, “if the chosen first name provides the child with a clear and non- contemplative opportunity to identify himself with his gender.” 6 The name Kiran poses no ‘threat’ against a ‘female’ gender identification. As the court also ruled that are is no German law that limits the parental name choice to a gender-corresponding name, many have seen this court case as the precedent that gender-specific first name were no longer legally obligated. Unfortunately this was not the case. Although the gender-specific first name rule was removed from the Transsexual Law and from the General Administrative Regulation on the Civil Status Law (PStG-VwV), today it can still be found in the General Instructions on the Naming Law (section 3, 67th). Although the law case of Kiran could have been used as a precedent in favour of a free choice for gender-related names, it was not interpreted that way. A recent law case, BVerwG 6 B 38.15 in 2016, made the gender binary essential again within naming

4 Original: “Fall kann nicht davon ausgegangen werden, daß die gewählten Vornamen offensichtlich eine fehlerhafte Zuordnung des Kindes zum anderen Geschlecht veranlassen.” Translation HdB 5 Original: “Hiervon abgesehen sind staatliche Stellen (etwa die Wehrersatzbehörden) längst nicht mehr auf die Vornamen zur Identifizierung einer Person angewiesen, zumal sie über genügend andere Unterlagen verfügen, aus denen sich ohnehin das Geschlecht ergibt.” Translation HdB 6 Original: “wenn der gewählte Vorname dem Kind offensichtlich und nach keiner Betrachtungsweise die Möglichkeit bietet, sich anhand des Vornamens mit seinem Geschlecht zu identifizieren.” Translation HdB 32

practices. It also showed how institutionalised the gender binary is. This case involved the law on name changing, which sets this case apart from the law cases discussed before. However, the court’s argumentation makes it an important case. This law case was about adding a ‘female’ middle name, while having a ‘male’ first name, when identifying both as man and as woman. It is important to note that this case is solely about gender, there is an absence of a cultural motive that is there in the Kiran and the Nicola cases. The court ruled that: “The legal system is based on the dichotomy of the sexes. It applies the epistemological principle that the first name must in principle correspond to the natural order of the sexes. The notion that men could fully adopt women's names or women's full male names would create unacceptable ambiguity and confusion, especially in legal relations.”7 They went further arguing that “not even for the so-called intersex people, who are neither clearly male nor clearly female biologically, the right exist to give themselves names of both sexes.”8 The freedom of picking a name is thus still limited by the need for a clear gender expression in the first name. The court answered for this with the argument that a name has to fulfil a social function; the need for a distinguishing feature. In this case, “the fact that the gender of a person coincides with the gender expressed in the first name corresponds to expression of one's gender in the name protected by the general right of personality.”9 The claim of the defendant for a name change by adding a female middle name, was thus rejected based on that the general right of personality was already fulfilled. Above I have tried to give a brief outline of the legal situation. I will now go further into the main themes and concepts that can be found in the discourse used in the precedents, law cases and regulations. Four themes can be distinguished.

7 Original: “Die Rechtsordnung gehe von der Dichotomie der Geschlechter aus. Es gelte der namensrechtliche Grundsatz, dass der Vorname grundsätzlich der natürlichen Ordnung der Geschlechter entsprechen müsse. Die Auffassung, Männer könnten uneingeschränkt Frauennamen führen oder Frauen uneingeschränkt Männernamen, würde zu untragbarer Unklarheit und Verwirrung insbesondere im Rechtsverkehr führen.” Translation by HdB 8 Orginal: “Nicht einmal für die sog. Intersexuellen, die biologisch weder eindeutig männlich noch eindeutig weiblich seien, existiere das Recht, sich Namen beider Geschlechter zu geben.” Translation by HdB 9 Original: “Dass die Geschlechtszugehörigkeit eines Menschen sich mit dem im Vornamen ausdrückenden Geschlecht deckt, entspricht dem vom allgemeinen Persönlichkeitsrecht geschützten Ausdruck der eigenen Geschlechtlichkeit im Namen.” Translation by HdB 33

The grip of the gender binary The legal situation in Germany regarding naming practices, is dominated by the insistence on the gender binary and simultaneously on ‘clear’ gender expression. Besides the rules of a gender specific name, that matches the ‘gender’ (read: girl/boy) of the name bearer, parents are only limited by names that are offensive (NamÄndVwV, section 3, 66th). The gender binary is posed as an objective truth, that cannot be contested. The discourse used in the precedents, such as “natural”, “order of sexes”, “dichotomy”, create the ‘naturalising trick” Butler (1990) writes about, that make gender and sex appear to be natural. This is also reflected in the discourse used by the court in 2016, in which they say “not even for the so-called intersex people”. The adding of ‘so-called’ represents a form of distancing, in which a power relation between ‘gender binary identified people – natural’ and ‘intersex- unnatural’ is showed. This is also the case in the argumentation of why men cannot choose for ‘women’s names’ or vice versa. The court argues that this “would create unacceptable ambiguity and confusion”. The wording of ‘unacceptable’ shows how far the insistence for clear gender expression (women/men) goes. It reminds me of Haraway’s quote in the beginning of this chapter. In the rest of her quote she writes how gender-consciousness is “an achievement forced on us by the terrible historical experience of the contradictory social realities” (2006, p.5). The dichotomy of ‘sex’ creates strategic and contradictory identities, that are forced upon people because of ‘confusion’ that must be avoided frenetically.

Right of personality In the regulations and in the law cases that are analysed, the parental right to name their child is opposed to the best interest of the child. Having a first name that corresponds to the expression of one’s own gender is seen as a right of personality. A name that is in line with one’s gender, would help the child find ones identity and to develop ones individuality. Gender is thus deemed central for one’s name, personality and individuality. This is closely related to Foucault’s concept of subjectification (1983) and Butler’s perspective on gender construction. (1990). Gender is something that becomes attached to the child. That gender, and simultaneously a ‘gendered’ name is seen as part of someone’s personality, is an adequate example of how far the power of the category of gender reaches. Everyone is a subject to gender, as it is a law of truth “that they and others must recognize in them” (Foucault, 1983, p. 212). To be legally bound to have a ‘woman’s’ or a ‘man’s’ name, is thus framed as a ‘right’. The 34

framing of having the ‘right of personality’ is used to conceal the clear social classification purposes, after all you are also bound to pick a gender specific name. The right of personality only exists when one accepts the gender binary as ‘truth’. People who do not want/can accept the gender binary as ‘truth’, do not get to have this right of personality.

Change at the surface, not at the core The precedents that changed the legal situation in Germany for naming practices and gender, seem positive from the outside. Indeed, the exceptions that are formulated give more leniency to move a bit further away from the gender binary. However, when having a closer look, it becomes clear that change is only happening on the surface, but not at the core. The leniency for the gendered name rule is motivated by multiculturalism, not by a more flexible way of looking at gender and gender expression. It seems that the intersection of gender and culture allowed for an opening, as we can see in the Nicola and Kiran cases. However, this opening is absent for parents who do not have another cultural background. In in 2016, there was no cultural motive behind the appeal, it was only gender related. In this case, the leniency that was set up in the cultural motivated cases, did not apply. This is in line with the work of Teutsch (2016), in which he mentions cultural conflicts with the gender restriction rule, but fails to include to assess the gender binary in these conflicts. Perhaps BVerwG 6 B 38.15 was used for strategic ligation, which “aims to bring about broad societal changes beyond the scope of the individual case at hand” (ECCHR, 2019). If it were, it only showed the lack of regulation, unfortunately it did not create leniency regarding the gender restriction rule. The insight that gender expression within names differ per society and culture, has not led to an insight that gendered names are thus socially constructed. Even the court’s ruling in 2008 that there is no dependent on first names to identify a person, as there enough documents were the gender can be found, has not led to further change. Naming practices remain the critical spill in gender identification. Furthermore, this argument still shows how ‘unclear’ gender identification, not knowing if someone is a ‘man’ or a ‘woman’, carries on to be unacceptable. There is thus change in the legal situation, but unfortunately not at the core: the gender binary.

Lack of regulation The German legal situation is characteristic, because of its lack of clear regulation. Also said by the court in 2016: “It is up to the legislator to shape the legal system in such a way that the

requirements that human dignity places on the right of self-determination of the transsexual involved in connection with the fundamental right to protection of the personality.”10 This particular quote involves the request to have a ‘man’s’ name and a ‘women’s’ middle name, but is applicable for the whole situation regarding naming practices and gender. Because of the lack of a law, judges have to base their decision on precedents. Now the Ministry of Interior holds the most power, resulting in poverty discrimination. Only people who can afford court costs, are able to appeal to the decision of the registrar. When the legislator would provide more clarity to the situation, ideally stating the freedom of picking a name without gender identification as positive right, it would open up the possibility of change. The case study of Germany shows how entrenched the gender binary is within the legal situation of naming practices. I will now analyse a different case study: Denmark, to see the differences and similarities.

Denmark: clear from the outside, not from the inside The legal situation regarding naming practices and gender is in Denmark, in contrast to Germany, clearly embedded in the law. Article 13 and 14 in the Bekendtgørelse af navneloven, Naming Act (2019), denote the rules regarding naming practices for first names. Interestingly, this law does not enforce parents to give their child a ‘gender-correct’ name, it forbids them to give a ‘gender-incorrect’ name. Article 13(2), states that “A first name must not denote the opposite sex in relation to the one who bears the name.” 11 The current Naming Act was established in 2006 (Nielsen & Farmakis, 2008). Further regulations that apply to this law are established in Vejledning om navne, Guidance on names (2019) and Bekendtgørelse om navne, Commandment on names (2019). The rules stated in these documents are legally binding. First, some background information on the Danish naming practices is given. It is important to note that Denmark is not a secular state (Nielsen & Kühle, 2011). There is a strong relationship between the Danish state and the Evangelical Lutheran Church In Denmark. Naturally, the naming practices have been shaped heavily by Christianity. Because of the state religion the birth certificate and thus name registration, is not done by the municipality, but by

10 Original: “Es obliegt dem Gesetzgeber, die Rechtsordnung so zu gestalten, dass die Anforderungen, die die Menschenwürde in Verbindung mit dem Grundrecht auf Schutz der Persönlichkeit an das Selbstbestimmungsrecht des betroffenen Transsexuellen stellt.”Translation by HdB 11 Original: “Et fornavn må ikke betegne det modsatte køn i forhold til den, der skal bære navnet.” Translation by HdB 36

the local Lutheran Church (Borger, 2019). Even when the parent are affiliated to another religion or when they do not attend church, the name registration has to be done at church (The city of Copenhagen, 2019). Danish naming practices are unique, as the government uses a list of ‘approved’ names. On the last day of the month, the Ministry of Church Affairs forwards the list to the Family Court House, which publishes the list online. Parents are encouraged to select a name of this ‘approved’ list, in which case the name is automatically accepted, if Article 13 (2) is met. It is thus no surprise that the list distinguishes between approved ‘female’ and approved ‘male’ names. The list can be found on the website of the Board of Appeal, Ankestyrelsen (2019). There are in total 39392 names, including 18195 ‘male’ names and 22251 ‘female’ names. The list also approves 1054 unisex names, that can be given to either boys or girls. These latter names do not fall under names that ‘denote the opposite sex’. The list of approved names was first made by the Ministry of Church Affairs (Nielsen & Farmakis, 2008). After the birth registration is done at the local parish, the parish has to assess if the first name can be approved. Although most parents pick a name of the approved list, there is also an option to ask for permission for a name outside the list (Borger, 2019). Rules regarding names outside of the list are embedded in Article 13 (2) and in chapter 5, Guidance on names. I will specifically focus on the rules regarding Article 13 (2). Other than in Germany, were parents have to give a ‘gender-correct’ name, a positive obligation, parents in Denmark have to refrain from ‘gender-incorrect’ names, a negative obligation. Unisex names are not seen as ‘gender-incorrect’ names in Denmark. However, the question remains when is a name considered unisex? The answer can be found in section 5.4.1., Guidance on names and in section 18 of the Commandment of Names. In these paragraphs is stated that children are allowed to bear a name of the opposite gender, when that name is carried by 25 or more people of the corresponding gender. Thus, when parents want to name their son Nikita, the parish has to check if there are more than 25 men in Denmark that bear the name Nikita. If so, the name is seen as unisex and thus allowed. It is important to note that in Denmark, all children are allowed to have a ‘gender-incorrect’ name as middle name (Article 11 (4), Naming act). When the parish is faced with an application that falls outside the rules of the law, it must be forwarded to the Family Court House for consideration. This is where the law becomes less clear. In section 5.4.2., Guidance on names,

applications for ‘not-corresponding gender’ names are discussed. When the parents want to give the child a name that is a gender-corresponding name abroad, the application is approved. However, no guidelines are given for other situations. In this section the statement “boys must have boys’ first names and girls must have girl names.”12, seems to be the final decision. However, there is an explanation of the procedure that is followed when the ‘non- corresponding gender’ name is accepted. This creates leniency, but the law is not clear on when such exceptions are made. The legal situation is described punctuality within the Danish law, but insight in precedents and regulations used by judges in family law court is not given. Information is very hard to find, as rulings and judgements are not made public in Denmark. Only a selection of rulings by the Supreme Court are published, a selection that is self-made. As little as 20% of the rulings are published by estimation (CBS library, 2019). Unfortunately, no ruling regarding the Naming Act has been published (The Supreme Court's decision database, 2019). Because of the lack of information, one cannot find how often the Family Court House rules in favour of a ‘non-corresponding gender name’. One can conclude, however, that before a ‘gender-specific’ name is labelled as unisex, the Family Court House has to rule the same in 25 court cases. The legal situation of Denmark is thus very clear, except for the rules regarding the application of ‘non-corresponding gender names’ for the Family Court House. The situation in Denmark is, in comparison to Germany, much more controlled by the legislator and less controlled by precedents and regulations. The steps the parish has to take to assess the acceptability of a name, are written out extensively. It is important to note that most of the parents choose a name from the list (Nielsen & Farmakis, 2008). The above described analysis of the legal situation regarding naming practices and gender was analysed using a critical discourse analysis and a comparative law analysis. I will now discuss the main themes and concepts that I found during this analysis. Three themes can be distinguished.

12 Original: “Drenge skal have drengefornavne og piger pigefornavne.” Translation by HdB 38

The grip of the gender binary

Although less motivated and outspoken as the German case-study, the Danish naming practices are gendered through legally binding rules. The state obligates parents to stay within the gender binary, making naming practices a gendered process. Although there are options for unisex names, without the need for a ‘clear corresponding gender name’ as middle name, as is the case in Germany, the gender binary system still forms the base of names. Afterall, the unisex names only form 2,6% of the ‘approved’ names. The creation of new unisex names is also discouraged as parents have to go through a process of approval. The state recognises that names and gender can be seen as apart from each other, as names can correspond with ‘both’ genders, but remains to uphold the need for a name that this “must not denote the opposite sex in relation to the one who bears the name.” The use of the term ‘opposite’ within this law, reflects that the gender binary is at the very core of the naming practice. The concept of subjectification of Foucault (1983) and the perspective of Butler on gender construction (1990) can thus also be applied to the Danish case study.

Christianity As stated before, Christianity has influenced the naming practices in Denmark heavily. Although this is also the case in most of Western-European countries (Leibring, 2016), Denmark is not a secular state. Christianity, in the form Evangelical Lutheran Church is the state religion. The role that is still ascribed to the Lutheran Church in relation to naming practices today, makes Denmark an unique case. Within Christianity, the gender binary is an important part of God’s creation: only two genders were created (Sullivan-Blum, 2004). A majority of Christians holds a binary view on gender, and wants to preserve the gender binary (Farme, 2006, Kanamori et. al., 2007). As Denmark often stands out as having a liberal social culture regarding gender equality and neutrality, the influence of Christianity on naming practices might create tension. However, as Anne Larsen (2005) shows in her research on re-doing gender within Denmark, progressiveness on gender equality does not necessarily deconstructs the gender binary. Further research on the role of the Lutheran Church in naming practices and the gender binary would give more insight in the possible relation between the two.

No transparency The legal situation regarding naming practices provides no transparency regarding the role of the gender binary. The legislator does not motivate Article 13 (2) anywhere in the law. Perhaps insight in the court rulings and precedents would provide one with a motivation, however, there is also no transparency provided by making these documents public. The state thus neglects to inform people why this law is imposed on them. This lack of motivation shows how institutionalised the gender binary is. When a law is not even motivated, the clear ‘need’ for this law is seen as explicit. Although there seems to be changes, more unisex names are put on the ‘approved’ list, the core base has not changed. Although not motived, the need for a ‘gendered’ name, is still deemed insurmountable.

Concluding remarks In this chapter, I have discussed two case studies: the German legal situation regarding naming practices and gender, and the Danish legal situation. I have discussed the main themes found during the analysis of these case studies. Although the situations in these countries are very different, they illustrate that naming laws, including precedents, operate as a form of power that categorises people and imposes a law of truth on them. They impose an identification within the gender binary (man or woman), that they and others must recognise in them. The naming law is thus “ a form of power that makes individuals subjects – and submits them to others in this way” (Foucault, 1983, p. 212). I have tried to show how the legal naming situation forms the spill in the creation and the reinforcement of the gender binary.

CONCLUSION

This research has tried to give more insight in the relation between naming laws and the gender binary. As the gender binary influences everyone, in every day practices and interactions, it is important to gain more insight in how this oppressive system, that is seen as ‘truth’, operates in our society. Many feminist scholars have produced important work regarding the gender binary, but have not linked this system with naming practices, except for Pilcher (2017). In this research, I have tried to expand the knowledge build by Pilcher, by not only linking the gender binary with naming practices, but by focusing on its entrenchment within the law as institution. By showing how institutionalised the gender binary is in our society, I have tried to raise awareness. The research question used in this research was: “How do naming laws in different European countries create and reinforce the gender binary?”. The sub questions were “What is the relation between naming practices and the gender binary”, “What are the implications of the naming laws on gender” and “Which modifications could be suggested for the naming laws to minimalize the reinforcement of the gender binary?”. In the previous chapters, I have tried to answer the first two questions. In this conclusion, I will shortly revisit works and laws that I have used to establish my argumentation throughout this research. By doing this, I will try to answer the third question. I hope by this time, I have convincingly made my main argument, that naming laws are the institutionalised spill of the gender binary, utilised to create and reinforce this very system. To make this argument, I used established works that capture social constructivism, power, oppression and gender. Therefore, Foucault’s work on sexuality, power and knowledge was discussed, as well as Butler’s perspective on sex and gender. The theoretical reflections were explored, to build the foundation for my argument. A short summary of the role of gender within feminist and gender studies, was given to provide the reader with the relevant background information. Unfortunately, no comprehensive summary could be given. In the following chapters, I have tried to link naming practices with gender construction. As done before by Pilcher (2017), I have showed that names are closely related to someone’s individuality (Finch, 2008), but they are simultaneously used for social classification (Lévi- Strauss, 1966). A name can be seen as part of discourse, that is used in gender performativity.

Through repetition of a ‘gendered’ name, it becomes essential for gender construction. Not only the practices of applying ‘female’ and ‘male’ names, reinforces the gender binary and makes the gender binary seem natural. The practices around the actual ‘naming’, such as searching for a name online, is even so a gendered process. I have showed the example of indirect gender policing on baby names websites. In the following chapter, I turned my attention towards the actual naming laws. In my opinion, the reinforcement of the gender binary in an institutionalised form, has further consequences than the reinforcement on micro level. Therefore, I wanted to show the importance of including naming laws as element of the gender binary. By using two case- studies, the legal situation in Germany and in Denmark, I wanted to shed more light on the interaction between naming laws and the gender dichotomy system. Through these case studies, I have concluded that naming laws operate as an important spill in the reinforcement of the gender binary. Babies are not only being put in to separate camps when they are born, they also receive a ‘marker’ for their gender: their name. As parents are obligated to by the naming laws, these laws form the very core in which the gender binary is further enforced. For the third question, which modifications could be suggested for the naming laws to minimalize the reinforcement of the gender binary? I would like to revisit the categorisation of Lorber (2010) discussed in chapter one. She discusses three feminist movements and their aim for gender equality: Gender reform feminism, gender resistance feminism and gender rebellion feminism. As gender reform and gender resistance feminists do accept the gender binary, at first side, it might seem they would not argue against the gender restrictions in the naming laws. However, gender reform feminists want gender balance. As discussed in chapter three, names influence how people are received. Not only on individual level, but also on societal (Finch, 2008). Therefore, ‘female’ names might be perceived differently than ‘male’ names, as women are below in the gendered social order. The possibility for women to receive ‘male’ names and vice versa, as modification of the gender restriction could therefore be in their interest. Gender resistance feminists want to put women interests first, in order to transform the gendered social order. As woman gain advantage when they have ‘male’ names (Lieberson, Dumais & Baumann, 2000), they could argue for a recreation of ‘female’ and ‘male’ names and more unisex names as modification of the gender restriction. However, gender rebellion feminists, who reject the gender binary, would especially argue for modifications. Their aim to

deconstruct the gender categories and to make way for a non-gendered social order, is in line with the aim of this research. Although it would be in all feminists interest to change these laws, I want to discuss the modifications from this perspective further. From the perspective of gender rebellion feminists, it is clear that a modification would mean the repeal of the gender restrictions in naming laws. To fully minimalize the reinforcement, the laws should be altered and changed into examples of other European countries. However, as I showed with the two case studies, this is not easily done. The complicated legal situation in Germany and the Christian influence in the Danish legal situation makes a repeal complex. By using these two cases studies, I have tried to distinguish important elements and themes that can help stimulate change or helps to deepen our knowledge on the reinforcing relation between naming laws and the gender binary. The case-studies can thus be used to tearing down the gender binary and its naming laws. To invoke social change and legal reformation, I suggest that rebellion feminists should do the thing they excel in: asking questions that go against hegemonic perspectives. In the case of Germany and Denmark, we should be asking further questions regarding the ‘right of personality’ for people who reject the gender binary. We should point out the lack of transparency and motivation when it concerns the gender binary in laws. We should evaluate the influence of Christianity. The themes distinguished in chapter five, could form the base for further activism and strategic litigation. Without the gender restriction in naming laws, parents are released from an institutionalized form of the gender binary. These laws are at the core of gendered naming practices. Laws influence the society, but the same counts for the other way around. For gender rebellion feminists, activism against the gendered naming practices should also focus on the non-institutionalised forms. With this research, I have tried to plead for a rejection of the gender binary and the related naming laws. In my opinion, the gender binary is a prolific tool of oppression impacting everyone and needs to be deconstructed. I have tried to distinguish instruments to put this into practices, but further research is necessary to formulate clear elements that can be used by feminist to reform the legal situation.

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