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The Stakes in Sex: a Comparative Study of the Civil Status of Trans Persons1 Isabel C

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The Stakes in Sex: a Comparative Study of the Civil Status of Trans Persons1 Isabel C GENERAL REPORT The stakes in sex: a comparative study of the civil status of trans persons1 Isabel C. Jaramillo Sierra2 Table of Contents INTRODUCTION 2 A NOTE ON TERMINOLOGY 3 PART I. PRACTICES IN THE SUBTLE ART OF REPORTING 6 OPPORTUNITIES AND LIMITATIONS IN FUNCTIONALLY DRIVEN COMPARISONS 8 FROM EUROPE TO THE WORLD 12 PART II: THE RIGHTS OF TRANS PERSONS IN COMPARATIVE LAW LITERATURE 15 PART III: MODELS TO DEAL WITH SEX MOBILITY 18 GROUND ZERO: NON-RECOGNITION OF SEX MOBILITY 20 SEX REASSIGNMENT SURGERY AS A REQUIREMENT FOR CHANGES IN BIRTH CERTIFICATES 22 POWER TO DOCTORS: THE SOFT MEDICALIZATION MODEL 24 SELF-DETERMINATION AS A LEGITIMATE SOURCE OF SEX 25 CHANGES IN NAMES: NOT ALWAYS A SMALL SOLUTION 27 FAMILY LAW EFFECTS 30 NON-BINARY SEX REPORTING: DEALING WITH EARLY SEX AMBIGUITY AND MOBILITY 31 CONCLUSIONS: THE IDEAL MODEL FOR SEX MOBILITY 33 PART IV: GENDER MODIFICATION INTERVENTIONS AND SEX MOBILITY 34 SURGERY AS DEFILEMENT: THE NEED FOR JUDICIAL AUTHORIZATION 35 NO DOCTORS TRAINED TO PROVIDE GENDER MODIFICATION SERVICES 35 1 Report prepared for the XVIII General Congress of the International Academy of Comparative Law. This report is based on the work of national reporters from twenty six different countries. For detailed information see Annex 1. 2 Full Professor of Law, Universidad de los Andes, Bogotá. The author wishes to thank Emilio Lehoucq and Guillermo Estupiñán for their extraordinary research assistance, and the Law School and Office of the Research Provost at Universidad de los Andes for providing the necessary funding to complete the project. Most importantly, she is indebted to the national reporters, most of whom were unknown to her before starting this Project, for their great work. 1 INSURANCE COVERAGE IS NOT ENOUGH OR REIMBURSEMENT IS NOT TRANSPARENT 36 INFLUENCES DRIVING PATHOLOGIZATION AND TRANSPHOBIA 37 PART V: ANTI-DISCRIMINATION ET AL 37 CONCLUSIONS 39 Introduction For the last two hundred years, feminists have struggled to show us that sex is a marker for discrimination, exclusion and violence.3 The unapologetic fierceness the modern state would deploy in policing the boundaries of sex was hard to predict, though. The high costs of the fragile promise contained in belonging to the “right side” of the male/female binary were difficult to anticipate even for trans persons themselves. This report seeks to illuminate the map of legal responses to gender mobility, including sex and name registration, access to gender modification interventions and anti-discrimination regulation. It will show the importance of background rules in understanding the operations of law for discrimination, exclusion, and violence, as well as the stickiness of nature as a reason to introduce biology in the regulation of human relations and to justify pain and suffering. For this, the report has been divided in six parts. The first part provides an account of the way in which the report was produced. It explains the particularities of the process of production of national reports and highlights some of the resulting biases. It proposes ways to deal with these biases and methodological insights that may influence comparative work in the future. The second part contains a review of the literature on the rights of trans persons. It reveals the importance of functionally driven analysis and the existing consensus on the model of self-determination for sex change. It emphasizes how this work includes cases not available for English and French speaking readers and problematizes the functional approach for not seeing the gap between the proposed model and lingering stigma and 3 The report systematically uses sex to refer to the principle of classification of individuals into males and females, men and women, that is based on some external/visible features related to their role in reproduction. Gender, on the other hand, is used to refer to the set of characteristics socially attributed to males and females because of their sex. Eventually the report might also refer to sex as the practices of gratification that are defined by their relation to intercourse. Feminism is the political position that identifies oppression along the binaries resulting from sex and gender, in particular, that advocates for women as the subject of such oppression. Please consult the note on terminology for a fuller explanation of the conceptual framework underlying the choice of words in this report. 2 persecution. The third part engages the models of sex and name registration recounted. Here the report offers a series of indicators to classify registration as following a medical or declaratory approach to sex identification, and a community or individualistic approach to naming. It evidences the “surprise” of sex mobility and the importance of the medical and religious communities in producing the “natural” and “dignified” for the effects of population control through identification. It also underscores, using the Argentinean case, the possibilities of destabilizing the power of medical and religious discourses by opposing the “real” to the “natural” as the only possible redress for the collective trauma of having been “erased” or disappeared. Part four presents the challenges and paradoxes faced by trans persons in accessing gender modification services. It starts by explaining the health approach to gender modification and the ways in which the dogmatic construction of the right to health has helped to elucidate what can go wrong in providing treatments for trans persons. Thereafter it foregrounds the paradox involved in using the health approach to access gender modification services and rejecting the health approach for identification. It explains that this very paradox may be crucial to showing us the limits of the health approach in general. The ensuing part five of the report addresses the reforms of antidiscrimination statutes to include sex identity as a source of discrimination, exclusion, and violence. This part shows the excesses of transphobia and the efforts deployed to reduce it by recourse to criminal and constitutional law. Though the literature has been very skeptical about the impact of these efforts, sometimes even attributing to them heightened risks to trans persons, the reforms express a concern for the construction of sex diversity as exceptional and dangerous that are much worth attention. Here the reforms are organized with an eye to their potential to normalize sex diversity. Finally, in part six, the report concludes by summarizing the main findings concerning method and substance. It specially tackles the impact of sex on families and family law exceptionalism as the realms of identification become settled and issues of parenting, child custody and social security become the frontier for debates about the “natural” in sex. A note on terminology 3 Feminists have invested a lot of energy in the struggle over representation, the written word being one of the scenarios were this battle has taken place but not the only one.4 Normalizing the use of “gender” to refer to the characteristics which are socially assigned to individuals on the basis of their “sex”, has probably been one of feminism’s most important achievements. As noted by Joan Scott in her famous article “Gender as a useful category for historical analysis”, “gender” was key to protect research units from accusations of bias and could have had as a consequence the depolitization of research, but also allowed taking distance from arguments based on “nature” and introducing questions about the construction of males and men as correlates of females and women. 5 In this fight, however, sex became stable, uncontested, and uninteresting, as “nature”, while gender was carefully scrutinized in its binary operation hoping to unmask the injustices it produced and to discover ways to redress or transform them.6 The binary nature of sex and gender was regularized in working through the oppression of women; no oppression may be described if the “sides” cannot be somehow fixed.7 4 Isabel C. Jaramillo, “Más allá de la libertad y la expresión: las luchas por la representación” en Revista de Jurisprudencia Argentina, año 2007, pp. 16-23. On the role of language in producing the world, I find MacKinnon’s and Butler’s work most appealing. Catharine MacKinnon, Only Words, Cambridge, Harvard University Press, 1993; Judith Butler, Gender Trouble, New York, Rutledge, 1990. 5 Joan Scott, “Gender: A useful category for historical analysis” in The American Historical Review, vol. 91, No. 5, pp. 1053-1075. 6 Moving away from sex, as Scott explains, was essential to stop having to answer to every claim about brain size, influence of hormones on behavior, and social behavior observed in animals. Many resisted this move within feminism. MacKinnon, for example, argued that sex was as socially constructed as gender and actually that legal categories flowed from male interest and investment in the system. She also emphasized that legal categories had to do with penetrability and therefore with sex as a practice of gratification. In this sense, sex as a practice of gratification would produce sex as a legal category and gender as a way of making sex inteligible socially. Catharine Mackinnon, “Feminism, Marxism, Method and the State: And Agenda for Theory” in Signs, vol. 7, No. 3 (1982), pp. 515-544. French feminists also have resisted the sex/gender difference arguing that all descriptions are socially constructed and therefore embracing such difference is as much as embracing an euphemism. They will argue for the expression “social relations of the sexes” to emphasize that it is about power and not asceptic knowledge of reality. Daune-Richard A.-M. et Devreux A.-M. 1992. "Rapports sociaux de sexe et conceptualisation sociologique" Recherches féministes, vol. 5, n° 2, 1992, p. 7-30, Delphy, C., 1970, "L’ennemi principal", in Partisans, n° spécial Libération des Femmes, n°54-55, juillet – octobre, article reproduit dans Delphy (C.), 1998, L'ennemi principal : économie politique du patriarcat (Tome 1), Éditions Syllepse, Coll.
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