Gender Self-Determination Troubles
by
Ido Katri
A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto
© Copyright by Ido Katri 2021
Gender Self-Determination Troubles
Ido Katri
Doctor of Juridical Science
Faculty of Law University of Toronto
2021 Abstract
This dissertation explores the growing legal recognition of what has become known as ‘gender self-determination.’ Examining sex reclassification policies on a global scale, I show a shift within sex reclassification policies from the body to the self, from external to internal truth. A right to self-attested gender identity amends the grave breach of autonomy presented by other legal schemes for sex reclassification. To secure autonomy, laws and policies understand gender identity as an inherent and internal feature of the self. Yet, the sovereignty of a right to gender identity is circumscribed by the system of sex classification and its individuating logics, in which one must be stamped with a sex classification to be an autonomous legal subject.
To understand this failure, I turn to the legal roots of the concept self-determination by looking to international law, and to the origin moment of legal differentiation, sex assignment at birth.
Looking at the limitations of the collective right for state sovereignty allows me to provide a critical account of the inability of a right to gender identity to address systemic harms. Self- attested gender identity inevitably redraws the public/private divide along the contours of the trans body, suggesting a need to examine the apparatus of assigning sex at birth and its pivotal role in both the systemic exclusions of trans people, and in the broader regulation of gender.
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Looking forward rather than back, I turn to what I perceive to be the ‘future challenge’ of a right to self-attested gender identity, trans parental designations. I show that when people ask that their gender identity be recognized as parents, and especially when using their own bodies to conceive, they become inconceivable, exposing the gaps between what the law imagines as natural and the realities of lived experience. Theorizing the self-determination of gender through sex reclassification histories and practices of international law, and through its articulation within family law, suggests that all its elements, the individual self and its assumed ability for autonomous determination, and the formulation of gender identity as a self-evident right, require new imaginaries.
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Acknowledgments
When I entered Brenda Cossman’s office for the first time in 2014, freshly landed from Tel Aviv to Toronto, I had full conviction in what I wanted to research, but I did not believe in myself as a scholar. Throughout our endless conversations about theory and practice, at the office, in class, in conferences and around the dinner table at her home, Brenda taught me not only to open my thoughts against my own persuasions, but more importantly, through her never-ending support, encouragement, advice and feedback, she taught me to believe in my work and its impact. I could not have dreamed of a better supervisor, and am forever grateful to her for becoming the scholar I did not even know how to imagine.
Walking in the Washington woods, Dean Spade, whose pioneering activism and scholarship have shaped my own long before I met him, generously offered to serve on my committee as a special appointee to the University of Toronto. Dean continued this spirit of infinite generosity through his sensitive, generative and sharp feedback, providing first-rate theoretical and methodological advice, pushing me to think outside existing paradigms, helping me become a more critical scholar.
Dina Georgis, who is the farthest from this project in terms of discipline of all my other committee members, proved to be an ideal interlocutor, as she masterfully was able to distill my ideas and passions from any piece of experimental thought I presented my committee with over the years. Dina inspired me to go over and beyond imagined boundaries of discipline, theory, the self and its others. Throughout this project, Dina’s own scholarship and invaluable feedback felt like being at home.
Aeyal Gross was not on my committee, yet without him I would not have had the courage to undertake this project or to become a scholar. I am always stunned by Aeyal’s innovative thinking which serves as the foundation of my own work. Since I first met Aeyal in 2007 before starting law school, he has always had my back and has been unbelievably generous and encouraging, opening every possible door for me and welcoming me in. I am boundlessly indebted for his support not only of my work, but of many other emerging critical voices.
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I am also grateful to the wider community of academics and friends without which I would not be able to undertake this project. Robert Leckey, Paisley Currah, Vivane Namaste, Alexandre Jaunait, Samuel Singer, have all reviewed parts of the dissertation. Lihi Yona, Maayan Sudai, Reut Cohen and Fady Khoury became my intellectual and political family. Kyle Kirkup had given me the best career advices since day one and all other members in the House of Cossman provided academic kinship. Jake Pyne gave me a home far away from home and introduced me to the miracles of Christmas in between all the Jewish holidays we celebrated together. The Gila Project for Trans Empowerment never let me go, sticking together with our communities in grief and joy. Rabbi Levi Weiman Kelman edited the dissertation as I wrote it and is the best father- not-in-law anyone can ask for. Edo Kunrad and Madde Halupka edited chapters and added insights. Noki have been the best buddy anyone can ask for life, gym and random infographics.
In addition to the home base of the University of Toronto Law School, I was also fortunate to have been affiliated with the Mark S. Bonham Centre for Sexual Diversity Studies and the Anne Tanenbaum Centre for Jewish Studies, where I was a collaborative graduate student. I had the privilege to be a part of the Pierre Elliott Trudeau Foundation community. I am particularly grateful to Josée St-Martin for her unwavering support. I am also indebted to the SSHRC for supporting my research with a Vanier Canada Graduate Scholarship.
This project would not have come alive without the love, encouragement and backing of my family. Eden Segev Simsolo and I have grown together the ideas that structure this dissertation within our love. I look forward to our future becomings. Zohar Weiman-Kelman has read, reread and rereread every part of this project, supported me over the past years, at moments of rage and triumph, stress and peace, and have been the best partner any doctoral candidate could ever hope for. They are the cornerstone of this project and of my life.
Lastly, this project is dedicated to my parents, Dina and Avraham Katri, their unconditional love, immanent belief, and unwavering support is my biggest privilege.
Ido Katri September 2020 תשרי התשפ"א
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Table of Contents
Acknowledgments...... iv
Table of Contents ...... vi
List of Figures ...... viii
Introduction ...... 1
Gender Self-Determination ...... 6
Methodology and Limits of Review and Analysis ...... 10
Chapter 1 From the Body to the Self and Back ...... 17
Introduction ...... 17
Sex Classifications 101 ...... 19
Review and Analysis of Laws and Policies ...... 28
Complete Ban ...... 28
Sterilization Requirements ...... 32
Bodily Modification Prerequisites ...... 37
Corroboration Schemes ...... 41
A Right to Self-Attested Gender Identity ...... 45
Conclusion ...... 54
Chapter 2 From Public International Law to Privatized Gender ...... 56
Introduction ...... 56
Self-Determination of Peoples ...... 62
A Critique of A Right to Gender Identity ...... 75
Chapter 3 From the Penis to the Phallus to the M ...... 83
Introduction ...... 83
Equality is a Problem ...... 84
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Administrative Performativity - Origin Stories ...... 93
Theories of Gender Acquisition ...... 104
The Ritual of Birth Assignment ...... 114
The Eugenics Strike Back ...... 125
Chapter 4 Parents ...... 128
Introduction ...... 128
Theoretical Stakes, or, Another Take on Performativity ...... 132
Nature, Nurture and the Voice of Biology ...... 147
The Child’s Best Interests ...... 160
State Desires...... 165
The Sexuality of Sex Classification ...... 181
Conclusion ...... 196
Dream About Things...... 204
Anywhere “I” Can Run ...... 212
References ...... 226
List of Legal Cases Mentioned ...... 247
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List of Figures
Map of Formal Self Determination at 7.
Chart of Classification Scheme at 27.
Chart of Public/Private Divide at 80.
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Introduction
In September 2013, I received an email from May Peleg, a leader in the Jerusalem trans1 community, the chairperson of the Jerusalem Open House for Pride and Tolerance, who championed the rights for health and dignity,2 among many things, through the fight for proper identification documents for trans people3 and support for people living with mental health conditions.4 She wrote to me:5
Hi Ido, BF said I should talk to you. I’m confused and desperate. I apologizes for the length of this email, but I do not know what to do. This time two years ago I broke up with my ex-wife. We jointly drafted a divorce agreement that was approved by the court […] In May I moved to Jerusalem […] Slowly [the ex] began to lure the girls6 to not come over to my house and their visits became rare […] In August I suffered a serve episode of fibromyalgia and since then I have been bed ridden and voiceless. I have asked her to bring the girls to me, but she refused, even
1 It is customary to explain the specific terminology used to describe trans, non-binary and other gender nonconforming people. Indeed, the terminology changes across time and space (and I myself used different terms at different times and context). One is not expected to define the terms ‘gay’ or ‘lesbian’ or ‘mother’ or ‘father’ or ‘Canadian’ or ‘Israeli’. Though these terms might have complex meanings we assume their meaning from the context in which they are used. I believe that transness has also reached a level of intelligibility that does not require further explanations. I apologize to anyone who might be offended by the terminology I use, it is not my intention to exclude you and if you recognize yourself in the issues I discuss, know that I aim to include you. ,I am Empty“] אני ריקה, ריקה, ריקה לגמרי’: ראיון אישי עם מאי פלג, הטרנסג’נדרית שהתאבדה‘“ ,Hilo Glazer 2 Completely Empty, a Personal Interview with May Peleg, the Transgender Woman Who Killed Herself]”, online: .
when I was hospitalized, she refused to bring them to visit [...] Yesterday, we were in mediation with the social worker at the family court. At the beginning of the conversation, I said something about the girls and the social worker asked me- ‘wait are they girls or a boy and a girl?’ my ex immediately burst in and said “I want this resolved in court- she is using female plural form for the children and it confuses them.’ She claimed the boy is confused and distressed (lies! he and I talked about this issue many times. He is only seven but is smart enough to understand what is said). And then [the ex] shared all the hatred she accumulated toward me saying: ‘why does [May] want [the children] to sleep with her and her roommates, especially when there are lesbians and coccinelles7, the kids don’t want to go to her (another lie!), they are traumatized by her.’ The conversation ended with no practical solution, but I came out tired and angry. On the one hand I can and want to fight- to stand for my right to live my life according to my beliefs and not to give up on my identity. However, waging a war in courts will be a long process and in the meanwhile the girls will suffer, my health will take a toll and all that before thinking about the financial costs, which I cannot afford. Above all I do not know how this will all end. The system is conservative and when it will have to decide between the secular (she would say ‘I married an orthodox person’ and I would ask ‘what was orthodox about me’ and she would say ‘you wore a kippa’); the transgender (it confuses the girls, obviously, as I ‘choose’ it); the extreme leftist (the girls are not supposed to hate their nation); the polyamorous slut who sleeps with many women and even dares to be attracted to men; the person who lives in a commune with many people including another trans guy and trans girls and queers (who knows what they can do the girls- obviously anyone who is gender non-conforming is
7 Derogative term in Hebrew for trans people, equivalent to t****y.
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a potential rapist; the feminist who talks about her girls; the one suffering from fibromyalgia and all other oddities. [The ex] is orthodox[…], cisgender, living with man planning to have another child and it is all so wonderful. I’m afraid to lose everything. I am dealing with a square system- for example- at the ‘mediation’ the social worker voiced her opinion that the fact that I am trans is traumatizing the girls, and that living with roommates is wrong and that using female plural to address my girls harms my son. The child services officer in Efrat [a suburban West bank settlement] where my ex lives never hides her disgust of me. On the other hand, giving up. Meaning I will barely see my girls and will be economically ruined. I don’t know what to do.8
I asked May’s permission to consult an expert on family law and got back to her with a conclusive opinion that she is entitled to enforce her initial separation agreement. May did not write back. When I reached out again, she said her ex had completely cut her off from her children and that her health had deteriorated. She said she wanted to fight back and get justice but that she is mentally and physically weak and does not trust ‘the system’. I offered to arrange legal representation for her, but she was skeptical if she would be even able to pay the court fees. I told her I would try to think about what to do. This was the end of our conversation.
Like her, I did not think she stood a chance. Not for my expertise in family law, but because of my experience with ‘trans’ law, I thought the court would not be able to hear her complex voice, which they would take as incoherent and unstable. Soon this all became less relevant. May’s mental and physical health deteriorated rapidly, she went in and out of hospitals. I watched over Facebook how she moved from leading the trans community to the border zone of social exclusion, between those destined for life and those destined to premature death. I supported her from afar when she ran a public campaign, planning a hunger strike to fight for her
8 E-mail from May Peleg (September 11th 2013) (on file with author)
4 rights as a fight for her life,9 but I thought her demands were confusing and too personal and that no one with power would take them seriously.
In November 2015 May committed suicide. In the letter she left she blamed the ministry of social service, the ministry of health and the ministry of justice for her death and asked forgiveness from her children for not winning her war to get them back.10 May knew that her ultra-orthodox mother11 would want to bury her according to Jewish law and under her birth name.12 To ensure that she was buried according her wishes, she left a detailed last testimony with her lawyer supported by an affidavit signed just a day before her death.13 Her mother did fight May’s last wishes all the way to the Supreme Court of Israel. In its decision the court sided with May, 14 recognizing, post-mortem, her right to self-determination over her body and self.15
When May died, I was already living in Toronto and had just started my first year as a doctoral candidate at the University of Toronto, planning this dissertation. I woke up to the news of her death and immediately thought of the time that she asked for my help and how I did not believe that she stood a chance. I remembered that while I had been willing to help her, I had, in effect, kept silent. This dissertation is a belated attempt to break that silence. In her death, May, like other trans women, and especially trans women of colour, became a symbol of the local
:The Campaign To Commemorate May Peleg]”, online ] מטה המאבק לזכר מאי פלג“ 9
5 trans movement. Her death sparked outrage and was extensively covered by the media.16 In her death she was not ill or disabled or Mizrahi or queer or against the state. Instead, she was made legible and coherent to the movement and the public,17 marked again as belonging to the trans community, to the LGBT community and to the society that failed to protect her.
In July 2020, as I was wrapping up this project, I received a phone call from Dorin Bilia, another trans woman I worked with in a trans campaign against the Israeli Prison Service.18 She asked me to make sure that she would not be buried ‘as a man.’ In response I told her we should finally have a standardized legal affidavit for all trans people to use to protect their right for a gender respectful burial, and I contacted a lawyer to help us draft the document. Two days later I received a call from her mother informing me that Dorin had attempted suicide and was hospitalized, sedated and on a respirator. Because Jews are buried within a matter of hours of their death, I feared that we needed to move fast in case she did not survive. I called up the lawyer and asked if our conversation would be enough to secure her last wishes. It probably would not have been. Thankfully, she pulled through. As I came toward the conclusion of this dissertation, she called to tell me that she regained the “trans drive for immortality.” We still plan to draft the standardized affidavit for gender respectful burial.
I open this dissertation with these stories in order to situate its narrative in relation to the narratives of the many lives not deemed worthy of mourning or telling, to bind my work to others who make and undo me, implicating me in stories that are not my own, irreversibly and irresistibility. 19 From the visceral feeling of fear and of loss, bodily experiences of interconnected immanence, I will attempt to deconstruct what has come to be known as legal
מאי פלג נולדה כזכר ומתה כאישה שחלמה “ ,For example: Zerrik, supra note 4; Glazer, supra note 2; Shir Nahcmias 16 18) המקום הכי חם ”[May Peleg Born Male and Died as the Woman She Dreamt to be: Free] להיות: חופשייה November 2015), online:
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‘gender self-determination,’ questioning the construction of a legal right to innate gender identity, the individuating idea of the autonomous self and the fantasy of determination.
If I am to do some justice20 to the passions and rages of May, who knew the legal system was not on her side, and to all those embroiled with her in the border zones of life and death, I must look at the complexities that constituted them, “at the multiple transitions (or movements) they [were/are] engaged in.”21 Along the lines of flight drawn by May’s life, this dissertation will look at how the assignment of sex at birth becomes an indispensable part of one’s legal entity, throughout life and even in their death, and how it perpetually haunts gender nonconforming existence.
Gender Self-Determination
This dissertation explores the growing legal recognition of what has become known as ‘gender self-determination.’ These are laws and policies allowing for reclassification of sex from M to F, or F to M and often also to non-binary designations, based on the applicant’s self-attestation. Unlike other policies for reclassification, self-attestation laws and policies do not require the applicant to undergo any medical intervention, nor to acquire a medical diagnosis or other kind of external corroboration of their experience of themselves and their body. To achieve this level of autonomy, these laws and policies formulate a right to gender identity,22 understood as an “inherent and internal”23 feature of the self. Over half a billion citizens worldwide have gained access to these laws and policies since gender self-attestation was first legislated by Argentina in
20 “Justice is a continual balancing of competing visions, plural viewpoints, shifting histories, interests, and allegiances. To acknowledge that level of complexity is to require, to seek, and to values multiplicity of knowledge systems, in pursuit of a more complete sense of the world in which we all live” (Avery Gordon, Ghostly matters : haunting and the sociological imagination (Minneapolis: University of Minnesota Press, 2008) at 121. 21 Trystan Cotton in Tom Boellstorff et al, “Decolonizing transgender A roundtable discussion” (2014) 1:3 TSQ: Transgender Studies Quarterly 419–439 at 431. 22 Paisley Currach have noted that the formulation of this right is long goal of mainstream trans advocacy: ““The goal of what might be called the mainstream trans rights movement is to install gender identity as the basis for sex re-classification, rather than the sex assigned at birth or on the surgically modified body. This would do much to improve the day-to-day lives of transgender people.” (see: Paisley Currah, “The state” (2014) 1:1–2 Transgender Studies Quarterly 197–200 at 197. 23 Ley No. 26.743 identidad de género (2012) [Law No. 26.743 Gender Identity] (Translation available at: https://tgeu.org/argentina-gender-identity-law/) §1(a)(Argentina) [Hereinafter: Argentinian Gender Identity Law]
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2012.24 Adopting a definition of formal legal identity “as one that comes into being through the execution of a formality by the parties laying claim to a particular identity,”25 these laws and policies are often understood as allowing for gender self-determination.
Insofar as formal gender self-determination laws and policies are limited to providing legal recognition, they present a conception of self-determination which differs significantly from more radical visions of gender self-determination. Radical gender self-determination calls for broader redistribution of life chances and centres resistance to state violence.26 Radical gender self-determination does not deny the need for reducing barriers to accessing sex reclassification. Within a radical vision of gender self-determination, legal recognition is not a liberatory goal in
24 Id. 25 Jessica A Clarke, “Identity and form” (2015) 103 Calif L Rev 747 at 770. 26 Dean Spade, Normal life: Administrative violence, critical trans politics, and the limits of law (Duke University Press, 2015) at 160; Boellstorff et al, supra note 21 at 21.
8 and of itself; it is considered part of a broader move to dismantle regimes of surveillance and confinement while acknowledging the need to support those living in the here and now.
Though formal self-determination is primarily geared toward sex reclassification and thus could better be described as self-attestation or self-identification, the term gender self- determination is already prevalent among institutions27, scholars,28 and in legislation.29 In order to distinguish between formal and radical deployments of the term gender self-determination, I will describe laws and policies that allow for self-attestation reclassification as ‘self- identification’; I will refer to ‘laws and policies known as gender self-determination,’ or by addressing the ‘self-attested gender identity.’
The domestic legal framework for self-identification has a genealogy rooted in international legal principles that deploy the specific terminology of gender self-determination.30 As self-identification removes all harms to bodily integrity and individual autonomy, it does provide a certain level of sovereignty over sex classifications for trans legal subjects, as the international legal right to self-determination of peoples provides sovereignty to nation-states. Radical visions of gender self determination are derived from an abolitionist anarchist
27 “Protecting Human Rights of Transgender Persons”, online: Council of Europe Publishing
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31 perspective rooted in broader postcolonial demands for redistribution sovereignty. As I will argue, sovereignty simultaneously holds the revolutionary promise of gender self-determination, radical and formal, and encodes their limitations. The dissertation will explore the limitation of self-determined legal recognition while taking a non-monolithic position regarding either the law or the state, looking from a trans perspective at the becoming of legal arrangements.
Chapter one reviews sex reclassification policies from over a hundred jurisdictions worldwide. The chapter maps the current terrain of access to proper identification documents for trans and non-binary people by examining five legal schemes: complete ban on reclassification, sterilization requirements, bodily modification prerequisites, external corroboration, and self- identification. Exploring the shift from focusing on the medicalized trans body to the autonomous self, I argue that all current reclassification policies affirm the stability and coherence of sex classifications.
Chapter two turns to international law to situates the emerging right to gender identity within a genealogical framework of international human rights law. The chapter provides a review of histories and practices of the international legal right of self-determination of peoples by way of a comparative reading with laws and policies known as gender self-determination. Looking at the limited ability of the collective right for sovereignty, the chapter provides a critical account of the inability of a right to gender identity to address systemic harms. I show how the current push for autonomous recognition fails to address the fact that sex is legally employed in the unequal distribution of resources and life chances. Thus, laws and policies known as gender self-determination inevitably redraw the public/private divide along the contours of the trans body, suggesting a need to examine the apparatus of assigning sex at birth.
The third chapter critically analyzes birth assignment of sex. Turning the pathologizing gaze onto the state, I offer a psychoanalytical interpretation for the distribution of legal status (M/F) at birth. I argue that birth assignment of sex is not reflective but productive, it is not about bodily truth but about truthmaking. The chapter demonstrates how sex classification is achieved by the mechanism that supposedly only records it. Situating birth assignment within the
31 Eric A Stanley, “Gender self-determination” (2014) 1:1–2 Transgender Studies Quarterly 89–91.
10 historical development of the administrative state as a biopolitical technology of governance, this chapter reads birth assignment as a site for producing difference and signification upon and through the sexed body. The chapter thus reads birth assignment as a performative act which the administrative state repeats with every registration of birth. Administrative gender performativity charges the legal category of sex with pre-legal meaning and sex itself with pre-social signification.
Exploring the practical the limits of a right to gender identity that does not question birth assignment of sex, the final chapter provides a critical review of legal cases addressing gender identities of trans parents. Analyzing case law from Canada, the US, the UK, Germany, France and Israel, I show how biological arguments and the child’s best interest are mobilized to protect the desires of the state. When trans people ask that their gender identity be recognized as parents, and especially when using their own bodies to conceive, they become inconceivable, exposing the gaps between what the law imagines as natural and the realities of lived experience. I suggest that the barriers encountered by trans parents point to the law’s regulation of gender through birth assigned sex, and thus to the limits of self-identified gender identity.
Methodology and Limits of Review and Analysis
Following Paisley Currah,32 my method in critically engaging with gender nonconformity in the law places as its object of analysis the legal-administrative state apparatuses themselves. I am less interested in how people experience their gender identity, which I take to be an essential part of subjectivity, and more interested in how the state, as a locus of authorities and institutional arrangements, reacts to gender identity as a legal category. In this context, I do not consider the state to be a monolithic power and consider its unity to be a collective fiction.33 However, I do focus on the specific apparatus of sex classifications, currently deployed in all domestic legal systems around the world.
Much of the legal writing about gender nonconformity has focused on trans people themselves, examining the legitimacy and validity of their legal claims at best, 34 and using them as theoretical
32 “Sex is as Sex Does: Transgender Identities, Sex Classification, and the State” Paisley Currah, c 1. 33 Currah, supra note 22 at 197. 34 For example: Gail Brent, “Some legal problems of the postoperative transsexual” (1972) 12 J Fam L 405; Susan Etta Keller, “Operations of Legal Rhetoric: Examining Transsexual and Judicial Identity” (1999) 34 Harv CR-CLL
11 placeholders for abstract inquiries of the law at worst.35 Instead of looking at trans people through the law, I wish to look at the law from a trans perspective. I do acknowledge that there is no singular gender nonconforming perspective, but rather that these are highly stratified communities, as stratified as identity itself. To this end, I take sex and gender citizenship norms to be interlocked with race, ability, class, education, geographical and geopolitical location and all other intersecting differentiating systems that structure access to resources and life chances.
The question of relevant authority, who has the power to order sex reclassification, the court or administrative officials, affects the accessibility to proper identification documents. A process in which one must only provide “self-certification of their chosen gender category”36 to a relevant low-level clerk is significantly less burdensome than one in which the applicant is asked to obtain a court order and a doctor’s certification attesting to “sex reassignment”.37 It is beyond the scope of this dissertation to provide a detailed analysis of the difference in relevant authority. Instead, I will look at laws and policies in relation to the burden they place on the applicant, in an attempt to analyze another battleground of conflicting authority: that between the administrative state and the individual. Mapping this conflict will provide insights on law’s understanding of the purpose and rationale of sex classification, as they are reflected in reclassification policies.
Rev 329; Vivienne Muller, “‘Trapped In The Body’—Transsexualism, The Law, Sexual Identity” (1994) 3:1 Australian Feminist Law Journal 103–116; Jerold Taitz, “A Transsexual’s Nightmare: The Determination of Sexual Identity in English Law” (1988) 2:2 International Journal of Law, Policy and the Family 139–154; Katherine O’Donovan, “Transsexual troubles: The discrepancy between legal and social categories” (1985) Gender, Sex and the Law 9–27; C Mary Anne, “Disaggregating gender from sex and sexual orientation: The effeminate man in the law and feminist jurisprudence” (1995) Yale Law Journal 1–105; Noa Ben-Asher, “The necessity of sex change: A struggle for intersex and transsex liberties” (2006) 29 Harv JL & Gender 51; Jessica A Clarke, “They, Them, and Theirs” (2019) 132 Harvard Law Review 18–61; Peter Dunne, “Legal gender recognition in Europe: sterilisation, diagnosis and medical examination requirements” (2017) 39:4 Journal of Social Welfare and Family Law 497–500; Scherpe, supra note 28; Dylan Vade, “Expanding gender and expanding the law: Toward a social and legal conceptualization of gender that is more inclusive of transgender people” (2004) 11 Mich J Gender & L 253; Ben- Asher, “The necessity of sex change”, supra note; Zhan Chiam, Sandra Duffy & Matilda González Gil, “Trans Legal Mapping Report” (2017). Abigail W Lloyd, “Defining the human: Are transgender people strangers to the law” (2005) 20 Berkeley J Gender L & Just 150; Vade, “Expanding gender and expanding the law”, supra note. See on this point at: Dean Spade, “Documenting gender” (2007) 59 Hastings LJ 731 at 748–749. 35 See for instance Jay Proser critique of Judith Butler Jay Prosser, Second skins: The body narratives of transsexuality (Columbia University Press, 1998) c 1. And Vivian Namste critique of postmodernist invisibility of the needs of transsexuals in Viviane Namaste, Invisible lives: The erasure of transsexual and transgendered people (University of Chicago Press, 2000). 36 Cal. Health & Safety Code § 12800 (2018)(US) 37 Wis. Stat. Ann. § 69.15(4)(b) (2006)(US)
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Specifically, with respect to US laws and policies, I will only focus on laws and policies pertaining to the reclassification of sex on birth certificates. There are many more policies and laws in place than the number of US states, since different policies regularly exist within one state implemented by various agencies. 38 Given that in the US, birth certificates are the fundamental piece of governmental issued evidence of one’s identity, and they are required in the issuing of other pieces of identification.39 I am aware that other forms of ID, especially state- issued driver’s licences, are used far more frequently in daily interactions and often easier to reclassify than birth certificates. However, as I provide a global survey of laws and policies mostly from jurisdictions in which a centralized public registrar exists, and given that much focus will be given to the process of birth assignment of sex, I have chosen in the US context to focus on birth certificates. In other jurisdictions, unless stated otherwise, I will address reclassification on the centralized public registrar of the jurisdiction.
Questions of accessing name changes are intertwined with questions of sex reclassification. The issue of a name change is often considered together with sex reclassification, as names are also gendered. Many policies addressing reclassification also deal with name changes, and the process is often joined. In some jurisdictions, including some addressed in this dissertation, there are gendered rules on the naming of children. That is, names also provide an administrative site for the regulation of gender norms. Some jurisdictions historically also prohibited name changes in cases where the chosen name was incongruent with the applicant’s assigned sex at birth. I have chosen to aim my attention on reclassification of sex, as its focus is the administrative state investment in stability and coherence of sex classification, that is, gender categories. Names, albeit gendered, are allocated by parents rather than the state.
Another issue that will not be addressed in this dissertation is the interests of trans and gender nonconforming minors. In almost every jurisdiction, minors face a heavier burden in
38 Spade, supra note 34 at 733–734. 39 Complaint at 10-11, Nyla Foster et al., V. Jeff Anderson, Secretary of Kansas Department of Health and Intonement et al. (2:18-CV-02552) D. Kan. R.
13 accessing sex reclassification,40 if they are even allowed to access it at all. As institutions such as schools and clinics are a part of children’s and adolescents’ daily lives, and as many of these sites include gender segregated spaces and activities, sex reclassification is as important for young people as it is for adults. Minors asking for reclassification face a double bind: their ability to make an informed decision is questioned because they are young and because they are gender nonconforming. While adult trans people, as I argue, have been forced to render themselves infertile in different ways as precondition for recognition, gender nonconforming children are barred from affirmative care in the name of saving their reproductive capacities.41 Still, it is beyond the scope of this dissertation to address the unique challenges faced by young people asking to reclassify their sex.
An emerging topic in relation to sex classification is non-binary designation. For instance, all laws and policies in the US that allow for self identification in the process of sex reclassification include a non-binary option, other than male or female. There are even more jurisdictions offering non-binary classification than those recognizing other self-attested gender identities. While there is much to be discussed in the context of non-binary classifications, it is beyond the scope of this dissertation to fully account for their potential and limitations.42 The issue of non-binary classification will be addressed in relation to laws known as gender self- determination and the idea that sex classification reflects internal and subjective truth of the autonomous self.
40 For instance while the Argentinian Identity Law suffice with self-attestation of gender identity as precondition for sex reclassification for adults , minor are required to obtain a court order (see: Argentinian Gender Identity Law, Supra note 23, at §3 and §5). 41 Indeed as Paisley Currah notes ‘anti sterilization’ is a trope of anti-trans campaigns. See for example: Joani Walsh and Sian Griffiths | The Sunday Times, “Parents battle ‘state‑sponsored sterilisation’ of trans children”, online:
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In addition, non-binary sex designations are of importance and controversy within intersex communities and are often implemented to address their needs.43 Intersex people are frequently conflated with trans and gender nonconforming people and do share some struggles with them.44 The topics of birth assignment and sex reclassification are a prime example of that. Nevertheless, intersex interests might differ drastically and at times be overshadowed by trans advocacy.45 Some have voiced concern that the trans movement’s push toward a recognition of a right to gender identity ignores the reality in which intersex people suffer because of normative conceptions of the sexed body.46 While aware of conflicting interests, this dissertation does not attempt to represent a specific intersex perspective. To fully account for the needs of intersex people in relation to sex reclassification, extensive research is needed.
Reforms in formal recognition of trans and gender nonconforming people come about in various ways. They can be the result of deliberate legislation, administrative regulations, judicial process, or direct legal challenges in the form of petitions, lawsuits and human rights complaints. This dissertation relies on legal decisions, legislation, and administrative policy relating to sex classification of trans and gender nonconforming people as its primary sources. Where these legal texts are not publicly available, or are difficult to access because of language barriers,47 this dissertation relies on secondary sources such as reports, books, journal articles, and case comments addressing the issues discussed.
I choose to focus on trans perspectives on the broader issue of gender regulation through the category of sex, instead of looking at trans and gender nonconforming cases in comparison to other groups (such as gays and lesbians, non-trans women, etc.). As this dissertation makes an
43 Lena Holzer, “Sexually Dimorphic Bodies: A Production of Birth Certificates” (2019) 45:1 Australian Feminist Law Journal 91–110. 44 Sagit Mor, Maayan Sudai & Or Shai, “From Absence to Presence: A Critique of Intersex Surgeries” (2013) 44:1 Mishpatim, The Hebrew University Law Review 89–157. 45 Maayan Sudai, “Revisiting the Limits of Professional Autonomy: The Intersex Rights Movement’s Path to De- Medicalization” (2018) 41 Harv Women’s LJ. 46 Mauro Cabral Grinspan, The Yogyakarta Principles Plus 10: Articulating Intersex Issues in The Languge of International Law (2018). 47 In certain places I have collaborated with other scholars, Zohar Weiman-Kelman, Eden Segev Simsolo, Coco Guzmán, and Blas Radi, who are fluent in German, French and Spanish to understand and translate relevant materials.
15 argument against individuation through categories, it thus is more interested in observing the attempt to categorize trans “in-betweenness”48 than to analyze how trans appeals are treated as category in relation to other categories.
This dissertation deploys comparative literature methodologies in refusing to be confined to any specific disciplinary route for reading the law or to understanding what law is. Instead, each chapter takes a different approach, from analyzing policy, to a comparative reading of international law, through psychoanalysis and back to critical legal study of cases. This dissertation relies heavily on critical scholarship that challenges binary presumption and differentiating logics foremost in the field of trans studies, and also in the fields of queer theory, feminist critique, postcolonial studies and critical race theory.
I use a few theoretical frameworks throughout the dissertation. The first framework is the ‘wrong body,’ the pathologizing idea that gender nonconforming bodies require alignment to medical logics, to the self, and to the state. The second framework is gender dysphoria, a significant distress, or anxiety, over the functioning of bodies in relation to assigned sex. I consider the state to suffer from this dysphoria. The third framework, arising from the previous frameworks, is the dialectics of real/fake, authentic/pretence, natural/abnormal, in legal discourses on gender nonconformity. In all three frameworks, I rely on the work of Talia Mae Bettcher,49 Susan Stryker, and Nikki Sullivan.50
Brenda Cossman argues that, with respect to sexual citizenship, “it is no longer productive to debate the normalizing versus transgressive dimensions of a prospective sexual citizen. Rather we need to turn our critical attention to the process of becoming.”51 In this specific moment of legal reform and backlash, of rising governmentality and extreme marginalization, this
48 Between the legal differentiation at birth of the male-masculine-man and female-feminine-woman 49 Talia Mae Bettcher, “Trapped in the Wrong Theory: Rethinking Trans Oppression and Resistance” (2014) 39:2 Signs 383–406. 50 Susan Stryker & Nikki Sullivan, “King’s Member, Queen’s Body: Transsexual Surgery, Self-Demand Amputation and the Somatechnics of Sovereign Power” in Nikki Sullivan & Samantha Murray, eds, Somatechnics: Queering the Technologisation of Bodies (Oxon,UK: Ashgate, 2009) 249. 51 Brenda Cossman, Sexual citizens : the legal and cultural regulation of sex and belonging (Stanford, Calif.: Stanford University Press, 2007) at 9.
16 dissertation will attempt to think through trans processes of legal becoming.52 The hypothesis of this dissertation is that promoting a right to gender identity makes invisible the regulation of gender through sex classification. The question I want to ask than is can we hold the law accountable for the becoming of gender?
52 Ibid at 15.
Chapter 1 From the Body to the Self and Back Introduction
This chapter reviews laws and policies from a wide range of jurisdictions to map the global phenomenon of sex reclassification, its trends and its limitations. The main argument in the chapter is that there is a global move from legal preconditions of medical intervention (sterilizations, affirmative surgery, hormone therapy, etc.) to legal recognition of subjective gender identity (external corroboration of identity, self-identification, non-binary designation). I theorize this move as a shift from locating ‘legal truth’ on the body to locating it within the self. Across the spectrum of policies, a fundamental demand for coherence and stability remains firm, suggesting that sex reclassification schemes, even at their most progressive, are still a major site for the production of administrative coherence and stability.53
The available legal schemes share a desire for finding the ‘truth’ about one’s fundamental characteristics. At times this ‘truth’ is perceived to relate to one’s identity (commonly understood as relating to gender), at other times this ‘truth’ is conceived as emanating from one’s body (commonly understood as relating to sex). The search for truth, however imagined, aims to provide the law a stable or objective position to hold onto. A claim to objectivity, to ‘truth,’ justifies unsettling the prima facie status of sex classification assigned at birth, a status which is regarded as inalienable in civil law jurisdictions, and de facto treated as such in many others.54 Sex classification as a status is considered something a person does not have an individual right to give away but rather can only change as an effect of law.55 I will argue that all current routes for reclassification reaffirm individuating logics, that is, of the inalienability of legal categories. One can give away their sex classification as male or female, but must also accept another: male, female, non-binary.
Employing Talia Mea Bettcher’s theory of the ‘wrong body,’ I will suggest that the global shift toward self-identification is a shift between the weak and the strong version of the narrative. In the weak
53 Spade, supra note 34 at 738. 54 See chapter 4 section titled State Desire for Inalienability 55 See: Michelle Gobert, “Réflexions sur les sources du droit et les ‘principes’d’indisponibilité du corps humain et de l’état des personnes” (1992) 24 Revue trimestrielle de droit civil 489–524. 17 18 version, trans experience is perceived as a mental health condition that is ‘fixed’ through gender affirmative bodily modification, culminating in genital surgery or sterilization,56 that makes one a man or a woman. In the strong version, ‘real sex’ is determined by gender identity, exposing the assumption that a person of trans experience has always been a man or a woman (or non-binary), regardless of the fact that their body is incongruent with their gender identity (without making demands to fix it). Though policies that focus on self-attested gender identity do allow greater access to identification documents, removing major procedural obstacles and grave breaches of bodily autonomy, they still retain a differentiation between wrong and right bodies.
The chapter will argue that while self-identification solves the autonomy problem inherent to most reclassification policies, the sovereignty enabled by self-identification is already limited by the legal structures in which it is exercised. The sovereignty afforded by recognition of a right to gender identity attempts to give the trans legal subject power over something which they have very little control. The chapter will map the rise of self-identification laws and policies, known as gender self-determination, as the emerging ‘gold standard’ for sex reclassification, and will ask where it comes from and where it is taking us. Finally, I will ask what it means to have a ‘right’ to an identity in relation to gender.
The first part of this chapter will consider the importance of sex reclassification and proper identity documents for trans and gender nonconforming people. It will follow with a brief historical account of reclassification policies. The second part of this chapter will provide a survey of laws and policies addressing sex reclassification from over a hundred jurisdictions worldwide. Policies will be grouped together into four categories: complete ban; sterilization requirements; bodily modification prerequisites; and corroboration schemes. Each group of policies will be first reviewed and then critically analyzed. The third and final part of this chapter will introduce a fifth group of policies, which I describe as self-identification policies, understood as the right to legally self-determined gender identity. This part will track the quick expansion of the right to gender identity throughout the world. A subsection of this part will
56 As Susan Stryker and Nikki Sullivan notes, at the beginning of medical modifications sterilization was consider to ultimate act of “sex change” while genital surgery was seen as cosmetic process “and it was the former, and not the latter, that changed the relationship between the individual and the state” (see: Stryker & Sullivan, supra note 50 at 55.
19 address the emergence of non-binary classifications. I will account for the advantages provided by a right to gender identity, its aims and innovative frameworks, while considering the gap between its revolutionary promise and the limited sovereignty it provides in practice. To conclude, I will suggest the need to think critically about self-determination as a framework for addressing the needs of trans and non-binary people, while holding the law accountable for its role in the becoming of gender.
Sex Classifications 101 Proper Identification Documents
Sex reclassification on identification documents is a core issue of trans legal engagements.57 Access to proper identification documents, ones that cohere to a person’s felt or expressed gender identity, has been linked to a significant reduction in exposure to anti-trans violence,58 discrimination,59 suicidality,60 and other forms of premature death.61 The reasons for this are simple. First, if one’s identification document (ID) indicates they are supposed to belong to a specific binary sex category they do not identify with or express, e.g., they are feminine and are marked M or masculine and are marked F, their ID ‘outs’ them, thus exposing them to anti-trans violence and discrimination. To protect themselves from this ‘outing,’ trans and non-binary people might avoid engaging in activities in which they might be asked to present their ID, including applying for social assistance or unemployment benefits, traveling through airports or going to venues where alcohol is sold.
Second, incongruent IDs reflect the state’s refusal to recognize one’s identity and gender practices as they see them. Thus, incongruent IDs convey the message to lower-level
57 PAISLEY CURRAH, SEX IS AS SEX DOES: TRANSGENDER IDENTITY AND THE POLITICS OF CLASSIFICATION (forthcoming, 2020) 58 The Report of the 2015 US Transgender Survey, by Sandy E James et al, Google Scholar (Washington, DC: National Center for Transgender Equality, 2016) at 89. (hereinafter: USTS Report) 59 Charlie Hollis Whittington, Incongruent in Identity: Estimating the Effect of Self-Reported and Legal Gender on the Transgender Public Experience (thesis, Georgetown University, 2019) [unpublished] at 37 Accepted: 2019-07- 05T19:15:40Z. 60 Greta R Bauer et al, “Intervenable factors associated with suicide risk in transgender persons: a respondent driven sampling study in Ontario, Canada” (2015) 15:1 BMC Public Health 525. 61 Spade, supra note 26 at 15.
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62 bureaucrats and private sector actors that they, too, are allowed to refuse to respect one’s identity and practices, as the state does. Further, many trans and gender nonconforming people, whether they are binary or non-binary, whether they have engaged in medical or other forms of gender affirmation process, at least sometimes, do not pass as cisgender people. Being perceived as trans has been shown to correlate with experiences of mistreatment.63 This is specifically true for women,64 exposing them to high rates of sexist and anti-trans harassment65 and harm66. For these vulnerable populations, having incongruent IDs justifies their discrimination.67
Third, in many sex-segregated public services and spaces, entry is determined by one’s sex classification or is impacted by it.68 These services and spaces can include public bathrooms, rehabilitation centres, health services, foster care, homeless shelters, prisons, and more.69 The question of accessing these spaces is acute for trans populations as they suffer from disproportionate rates of underemployment, 70 criminalization, 71 homelessness, 72 and lack of
62 Dean Spade, Right-Wing Fantasies About Gender Are Killing Trans People, TRUTHOUT, https://truthout.org/articles/right-wing-fantasies-about-gender-are-killing-trans-people/ (last visited Feb 25, 2019). 63 James et al, supra note 58 at 38. 64 The 2015 US Transgender Survey by the National Center for Transgender Equality found that 19% of those who identified as trans women testified that people could tell they were transgender always or most of the time. In comparison only 9% of trans man and 6% non-binary people testified that people could tell they were transgender always or most of the time (see: Ibid at 50.(note that of those who were non-binary 80% had female on their birth certificate (see: Ibid at 15.). 65 For instance the USTS Report found in relation to police harassment that : “In the past year, of those who interacted with law enforcement officers who thought or knew they were transgender, one-third (33%) of Black transgender women and 30% of multiracial women said that an officer assumed they were sex workers.” (see: James et al, supra note 58 at 14. ). Trans women were more likely to be arrested as result from an interaction with the police and almost two-thirds were harassed by police officers (see: Ibid at 163.).They were also more likely to have been sexually harassed (see: Ibid at 134. 66 According to USTS report, trans women were more likely to be physically attacked than trans men (see: James et al, supra note 58 at 133.). 67 According to USTS report, trans women were more likely to be asked to leave when presenting an incongruent ID (see: Ibid at 90.). Trans women were more likely to lose their job due to their gender identity or expression (see: Ibid at 150. 68 “intake personnel with respect to shelters and drug treatment programs; retail or food clerks with respect to bathrooms and changing rooms in restaurants or stores; police with respect to public bathrooms or facilities in parks; medical or court personnel with respect to prisons/jails and mandated drug treatment programs serving as alternatives to incarceration; and administrative personnel with respect to foster care or juvenile justice facilities[…] The few clear written policies that exist often contradict one another and clash as various institutions converge in the lives of individuals who are subject to conflicting rules.” (see: Spade, supra note 34 at 775–776.) 69 Ibid at 752–753. 70 James et al, supra note 58 at 147. 71 Ibid at 184.
21 access to healthcare73 and education.74 This is also true for all other, more mundane sites where one is required to identify as M or F: in signing a housing lease or opening a bank account;75 registering for a university 76 or school;77 buying an airplane ticket;78 applying for a job,79 insurance,80 or a temporary parking permit;81 and many more. Significant access to immigration status, spousal rights, inheritance rights, and parental status (as will be explored in the last part of this thesis) is also often predicted or impacted by one’s sex classification.
Policing and Surveillance
Those who do not conform to the gender expectations encoded in their identification documents are exposed to specific precariousness, regardless of whether they identify as trans or not. Birth assignment of sex expects that certain gender expressions will be congruent to the assignment – that those assigned F will be feminine and will be perceived by others as women, and those assigned M will be masculine and perceived by others as men. One’s ability to meet this expectation gets tested through the frequent use of sex classifications in all sorts of private and public settings. Those who fail this test can and do face policing and punishment. Heath Fogg
72 Ibid at 175. 73 Ibid at 92. 74 Ibid at 130. 75 Spade, supra note 34 at 797. 76 For example at the University of Toronto School of Graduate Studies online application accessed on April 4th 2020, one is required to select among the following mandatory “Gender” options: Male, Female, Another Gender Identity, Unknown (see: “University of Toronto School of Graduate Studies Admissions Application”, online:
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Davis82 describes these dynamics through the story of Khadijah Farmer, a black butch lesbian who does not identify as trans but was kicked out of a female designated restroom in New York City:
As she approached the women’s restroom, a person exiting it told her that she was entering the wrong bathroom. Farmer assured the person that she was in right place. While she was using a toilet in a locked stall, one of the restaurant’s male bouncers barged into the women’s restroom. He pounded his fist on the door of the stall occupied by Farmer, barking that there had been a report of a man in the women’s restroom. […] She told him that she was female, and in the right bathroom. She opened the door, and offered to show the bouncer her female-marked New York state identification card. But the bouncer refused to look at it. His exact words were, ‘Your ID is neither here nor there.’ And then he ordered her to leave the premises immediately.
The bouncer did not think Farmer’s sex classification mattered because, as Davis notes, the bounder was there to enforce the broader scheme of sex classification, upholding the congruence between sex assignments and the expectation of internal and external qualities, characteristics and abilities.83 This kind of ‘on the spot’ local enforcement of sex classification by private and intuitional actors “include[s] assessments of a person’s appearance and/or request to see ID in order to view gender marker.” 84
This routine enforcement is less about legal documents and/or the individual ‘transgression,’ and more about sex classification as a system for segregating spaces. Farmer had no place in the restroom because she crossed the binary border, as a masculine presenting person assigned female at birth. The practice of sex segregated restrooms, which becomes enforceable through the assignment of gender expectation at birth, i.e., birth assignment of sex, is what caused Farmer’s exclusion. In this respect, Farmer’s actual sex classification is secondary to the
82 Heath Fogg Davis, Beyond trans : does gender matter? at 55. 83 Ibid at 56. 84 Spade, supra note 34 at 775.
23 administrative need to maintain the congruence of certain expectations about who people are and certain sex assignments. Gender, understood beyond a personal experience of identification, as one of the ways in which power over bodies produces individuals, is always already racialized.85
Trans gender nonconforming people who struggle through assemblages of social exclusions, such as those who are racialized, colonized, disabled and poor, are more directly exposed to these harms, as they are subject to more state surveillance86 and forced to interact with institutions more frequently (e.g., in homeless shelters, when applying for social benefits, or in prisons). As Davis points out with respect to Khadijah Farmer, she was not only considered a threat because she was thought to be a man in a women’s restroom, but because she was considered a black man, a major imagined threat to the (white) female in North American societies.87 That is, the racial signifiers of her gendered performance associated her with black masculinity, thereby casting her as a threat.
By assigning sex at birth and recording it on birth certificates required for issuing IDs, state institutions expose trans and gender nonconforming people to discrimination, violence and harassment. On a broader scale, the enforcement of sex classifications by private and public administrative agents enforces the obedience to binary gender expectations, the masculinity of those assigned M and the femininity of those assigned F. In this world of continuous reinforcements of gender inscriptions on the body, intentional or unintentional gender disobedience makes one a legitimate target for violent exclusion.
85 As Riley Snorton notes in Black on Both Sides the “condensation of transness into a the category transgender is a racial narrative” as much as “blackness finds articulation within transness” (see: C Riley Snorton, Black on both sides: A racial history of trans identity (U of Minnesota Press, 2017) at 8.Cassius Adair has argued that in the US context all that sex markers on identification cards should be understood as part of the mechanisms for enforcing anti-black legal hierarchy: “(T)he eugenic fantasy of racial purity, and the gender and sexual policing with which it is inextricably linked, was the foundational aim of the expansion of identity documents during the early twentieth century”, performatively coupling citizenship and identification (see: Cassius Adair, “Licensing Citizenship: Anti- Blackness, Identification Documents, and Transgender Studies” (2019) 71:2 American Quarterly 569–594 at 570. For an elaboration of the argument that gender performance includes racial signifiers see: Ido Katri, “The banishment of Isaac: Racial signifiers of gender performance” (2018) 68:1 University of Toronto Law Journal 118– 139. 86 James et al, supra note 58 at 90. 87 Heath Fogg Davis, “Why the ‘transgender’ bathroom controversy should make us rethink sex-segregated public bathrooms” (2018) 6:2 Politics, Groups, and Identities 199–216 at 6.
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Sex classifications are not deployed for purposes of identifying individuals. It is highly unlikely that a ‘terrorist’ impersonating someone else would ‘fake’ their gender.88 Unlike name, date and place of birth, name of parents, etc., an officer does not need to look at one’s ID to know what their lived gender is; they only need to look at them. It is highly doubtful that any gender normative person has ever been asked by an officer of the law if they are male or female as a way to corroborate the data on their ID. 89 Still, policies and public debates are haunted by the image of the resplendent bearded person wearing a dress as the ultimate pretender.90 People who do not fit within the system of binary sex classifications and have trouble accessing proper identification documents are often considered to be identity scammers, seen as frauds by governments and in the public imagination. In terms of identification, sex classifications which point out those who disobey gender further sustain the production of individuals “who are at once constrained and enabled by norms.”91
In this way, sex classifications are algorithms of gender expectations determining who is real and who is not, who people can be for themselves and in relation to others. The daily enforcement of gender expectation impacts trans and non-trans legal subjects. In short, sex classification “produces gendered conditions of existence that distribute various chances at health, security, insecurity, life and death [as] unequal.” 92 As will be further explored, the differentiation legal status M/F presumes the existence of different extra-legal characteristics and abilities, that there is something inherently different about sex classification that is of legal significance.
Histories of Reclassification
Sex reclassification is not a new issue: it has potentially existed at least as long as differentiated legal status M/F has existed. It is difficult to accurately pinpoint a starting point for legal and policy discussion over sex reclassification. ‘Third sex’ classification is discussed in the
88 Spade, supra note 34 at 808. 89 In this context, Spade’s connection between sex designation reclassification schemes and the growing surveillance brought about by the War on Terror is highly insightful (see: Ibid at 797–801. 90 Ibid at 777. 91 Morland, supra note 15 at 112. 92 Spade, supra note 34 at 747.
25 foundational work of Hindu law, the Manu Smitri, dated as early as the 2nd century BC.93 Jewish law of the 2nd century AD already deals with classification of non-normative bodies in the context of sex-specific legal duties. 94
In civil law in Europe, documented legal challenges for sex reclassification can be dated back to the end of the 18th century,95 which coincides with the emergence of the modern administrative registrars of populations and their practice of assigning sex at birth.96 In England and colonial America, cases are documented as early as mid-17th century.97 In 1907, under guidance of the eminent sexuality scholar and advocate Magnus Hirshfeld, Karl M. Bear, assigned female at birth, had his sex officially reclassified on his German birth certificate after he underwent a surgery. 98 Bear was later allowed to marry as a man. 99 In 1909, Hirschfeld successfully lobbied local police in Weimar Republic’s Berlin to issue a “transvestite pass” (Transvestitenschein), which allowed gender nonconforming people to express their gender identity in public.100 This practice continued to some extent after the destruction of Hirschfeld’s institute into the Nazi regime101 and in post-war Germany.102
93 M Michelraj, “Historical Evolution of Transgender Community in India” (2015) 4:1 Asian Review of Social Sciences 17–19 at 17–19. 94 See: Max Strassfeld, “Translating the Human: The Androginos in Tosefta Bikurim” (2016) 3:3–4 Transgender Studies Quarterly 587–604. 95 Geertje Mak, Doubting Sex: Inscriptions, Bodies and Selves in Nineteenth-Century Hermaphrodite Case Histories (Manchester ; New York: Manchester University Press, 2012) at 40–42. 96 M/F and beyond- Gender registration by the state and the legal position of transgender persons (English Summery), by Marjolein van den Brink & Jet Tigchelaar (Dutch Ministry of Security & Justice, 2014) at 3.). 97 Maayan Sudai, Sex Ambiguity in Early Modern Common Law (1629-1787) (March, 2020) (unpublished manuscript) (on file with author). 98 Unclear what kind of surgery he underwent but it was performed in a Berlin hospital in 1906 and is arguably considered the first ‘sex-change’ operation ever performed (see: Adi Savran & Iris Rachamimov, “In the Folds of a Skirt: The Many Lives of Karl M. Baer” (2015) 131:Summer 2015 Zmanim 22–33. Under the auspicious of Hirschfeld in 1907 he published an autobiography of his transition under the name N.O Body (see: N O Body, Memoirs of a man’s maiden years (Philadelphia: University of Pennsylvania Press, 2006). 99 Savran & Rachamimov, “In the Folds of a Skirt”, supra note 98. Bear later become the head of the Berlin chapter of Bnei-Brit (a Jewish social organization similar in structure to the free masons) until it was closed by the Gestapo in 1938. Bear immigrated to Palestine with his wife (his second wife as his first wife died shortly after their marriage in 1909). In Tel- Aviv he lived the rest of his life in a throuple (with his second and third wife) and died, on my birthday, June 26th, 1956. 100 Robert Beachy, Gay Berlin: birthplace of a modern identity (New York: Alfred A. Knopf, 2014) at 172. 101 Ilse Reiter-Zatloukal, “Geschlechtswechsel unter der NS-Herrschaft „Transvestitismus “, Namensänderung und Personenstandskorrektur in der „Ostmark “am Beispiel der Fälle Mathilde/Mathias Robert S. und Emma/Emil Rudolf K.” (2014) 1 Beiträge zur Rechtsgeschichte Österreichs 172–209 at 183–184.
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Mid-20th century developments in hormonal therapy and surgical options have prompted further discussion on reclassification. Current legal and policy debates, such as in Australia, England, Singapore, and Hong Kong, arose from legal query over marriage, that is, whether people who have accessed gender affirmative medical technologies such as hormone therapy and genital surgery can be married in their lived gender identity.103 In 1959, Christine Jorgensen, who at the time was a worldwide household name for being a transsexual woman,104 asked to marry in New York state and was denied because her birth certificate listed her as male and the court refused to reclassify her.105
In other contexts, reclassification discussions came about as a result of people’s direct demand for legal recognition, such as in the 1966 US case of Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 3 19 (1966).106 The plaintiff’s request was denied based on a decision by the New York Board of Health, according which, “sex can be changed where there is an error, of course, but not when there is a later attempt to change psychological orientation of the patient and including such surgery as goes with it.”107 Earlier direct legal challenges can be
102 One example is of Toni Simons from Stuttgart was granted such certificate throughout the 1950’s and 1960’s (See: “Repressionen gegen Transgender und Transsexuelle”, online: LSBTTIQ in Baden und Württemberg
27 found outside the US, such as the Israeli affair of Rina Natan. Ms. Natan was a transsexual woman who, as the result of a persistent one-woman public campaign in which she resorted to self-surgery, became the first person to have their sex reclassified by the Israeli Public Registrar in 1958.108
As this chapter shows, in recent years, laws and policies addressing sex reclassification have become the target of debate and reform, de jure or de facto, in the majority of jurisdictions around the globe. The growing intelligibility of trans communities has brought about the demand to increase the access to proper identification documents.109 In 2020, a wide variety of policies exists around the globe. The review offered in this chapter will show how sex reclassification policies have moved from looking for the truth on the external sexed body to finding it within the interior gendered self, from demanding proof for ‘sex reassignment’ to recognizing and protecting the new legal category of ‘gender identity.’ Theorizing this shift as a move from one wrong body to another, the former inhibiting psychic disorder and the latter incongruent with gender identity, will suggest that, just like in Anonymous v. Weiner, 110 the law is still preoccupied with fixing errors.
108 Gil Engelstein & Iris Rachamimov, “Crossing borders and demolishing boundaries: the connected history of the Israeli transgender community 1953–1986” (2019) 18:2 Journal of Modern Jewish Studies 142–159 at 146– 147. 109 PAISLEY CURRAH, SEX IS AS SEX DOES: TRANSGENDER IDENTITY AND THE POLITICS OF CLASSIFICATION (forthcoming 2020) 110 Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 3 19 (1966
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Review and Analysis of Laws and Policies
Sex reclassification is a highly fluctuating legal terrain in which changes occur sometimes on an almost daily basis, thus there might be recent changes in laws and policies of specific jurisdictions that this chapter does not reflect. While this dissertation surveys over a hundred jurisdictions worldwide, it does not attempt to accurately account for all available laws, policies and legal decision, rather it aims to categorize available legal schemes by using a variety of examples. For analytic purposes I will sort policies into five groups: 111 complete ban; sterilization requirements; bodily modification prerequisites; corroboration schemes; and self- identification.
Complete Ban
Total lack of recognition means that a jurisdiction does not have any law or policy in place that allows for sex reclassification or that it explicitly prohibits such changes. At the end of the second decade of the 21st century, total refusal of recognition can still be found in jurisdictions around the world, from the richest jurisdiction to the poorest, from south to north, west to east.112 These policies are not relics of an unprogressive past but they are being reinscribed into the law
111 This classification is based on results of my previous global survey of sex reclassification polices. For initial results see: Ido Katri, “Sex Reclassification for Trans and Gender Nonconforming People- From the Medicalized Body to the Privatized Self” in Oxford Encyclopedia of LGBT Politics and Policy (2019). 112 Including: Egypt and Thailand (see: REPORT ON THE ADVANCING TRANSGENDER RIGHTS INTERNATIONAL CONVENING (International Network of Civil Liberties Organizations, 2018). Bangladesh, Andorra, Azerbaijan, Macedonia, Kosovo, Maldives, Myanmar, Brunei, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, Jamaica, Nicaragua, Paraguay, Samoa, Lesotho, Liechtenstein, Tanzania, Uganda, Zimbabwe, and Bhutan (see: Chiam, Duffy & Gil, supra note 34., the Philippines (see: Silverio v. Republic of the Philippines (22 October 2007) G.R. No. 174689.), Malaysia (Jalil, M.A.“NRD wins appeal bid to stop transgender from changing IC details”, Malay Mail Online, 5 January 2017; “Uphold Right to Identity for Transgender Persons” (Media Release), Justice for Sisters, 11 January 2017.) Albania (“Sexual Orientation and Gender Identity - Albania factsheet”, online: Sexual Orientation and Gender Identity
29 as I write these lines.113 In some jurisdictions, while there is no direct ban on reclassification, such as the US jurisdictions of Kansas114 and Ohio115, the local registrars refused to do so.
Although some jurisdictions have recently attempted116 to withdraw from previous policies that allowed for reclassification and instead legislate a complete ban, there are indications that more jurisdictions will offer some kind of reclassification policy.117 Further, with the growing recognition of a right to gender identity, laws and policies have recently begun to be challenged through arguments about the difference between sex (assumed as relating to the body) and gender (assumed as the socio-cultural attributes of the body). In 2017, the Botswana High Court ruled in two different cases118 that the state must provide some routes for recognition of trans
113 In 2020 as part of a massive power grab afforded by declaring a state of emergency in light of the Covid-19 crisis, the Hungarian government outlawed sex reclassification by defining sex as immutable category assigned at birth. According to the Hungarian government the new legislation does not harm anyone’s “right to freely experience and exercise their identities as they wish” but rather “lay it down in law that it [biological sex, IK] cannot be changed in the civil registry either." (see: Rachel Savage, “‘Panic’ as Hungarian parliament bans trans people from changing gender on IDs”, Reuters (19 May 2020), online:
30 people, emphasizing that “Recognition of the applicant’s gender identity lies at the heart of his fundamental right to dignity. Gender identity constitutes the core of one’s sense of being and is an integral (part) of a person’s identity.”119
In 2018, two lawsuits were filed in the US demanding access to reclassification. 120 Similarly to the Botswanan decisions, both complaints argue that the local administration “bars transgender people from obtaining birth certificates that reflect their true sex, consistent with their gender identity.” 121 According to the complaints, gender identity is “a person’s fundamental, internal sense of their gender.” 122 They further argue that incongruent sex classification is a government interference with the right to live in accordance with one’s gender identity and thus harms bodily autonomy dignity and personhood.123
In June 2019, the parties to the Kansas complaint reached a consent judgement,124 stating that Kansas authorities will issue birth certificates for trans people “that reflect a change in sex designation, reflecting their true sex, consistent with their gender identity”125 upon receiving either proof of sex classification on a passport or a driver’s licence, or a “certification issued by a healthcare professional or mental health professional”.126 The Ohio complaint is still pending as of July 2020.
119 “NEWS RELEASE: BOTSWANA REGISTRAR AGREES TO CHANGE GENDER MARKER FROM FEMALE TO MALE – Southern Africa Litigation Centre”, online:
31
Analysis
Given the link between access to proper identification documents and exposure to anti-trans violence and discrimination, a complete ban on reclassification can amount to direct state violence. A complete ban reflects a position according to which birth-assigned sex reflects essential and immutable extra-legal truth about a person’s characteristics and abilities as a man or a woman. This belief in the immutability of sex is not challenged by lived experiences of incongruence between assigned sex and expressed or felt gender identity, nor by demands for equality and inclusion, as it is aimed to secure the “administration of life chances through traditional gender categories”127 that expose trans people to premature death.
Often, advocacy efforts such as the Kansas and Ohio complaints attempt to push local governments from a fundamental belief that sex classification reflects the objective truth determined at birth to a recognition of gender identity as a subjective truth known only to the self. Their equality argument does not question the distribution of differentiated legal status at birth, M or F, but rather asserts that in most cases birth assignment is accurate and justified as proof of “true sex” that is consistent with gender identity.128 These arguments attempt to sway the administrative logics from a weak version of the ‘wrong body’ to a strong one.
The attempt to regress policies back to a complete ban, as seen in Hungary or in the repeated attempts of the Trump administration, ask to define sex on immutable terms.129 These attempts to limit access to identification documents are cashing in on the fundamental flaw in the weak version of the wrong body narrative (in which a medical intervention cures a mental disorder by creating coherent sexed bodies). While the weak version of the narrative insist that
127 Spade, supra note 26 at 15 & 139. 128 Ibid, at 3. 129 Erica L Green, Katie Benner & Robert Pear, “‘Transgender’ Could Be Defined Out of Existence Under Trump Administration”, The New York Times (10 December 2018), online:
32 medical technologies can conclusively alter sex characteristics, those asking to regress policies point out that no medical technology can alter all sex characteristics.
Making an argument through a strong wrong body narrative (in which ‘true sex’ is determined by gender identity) is not an attempt to counter the argument that sex cannot change as much as it is an argument that one has always been a man or a woman. Within this line of argument, the differentiation between wrong and right bodies remains. Recognition of gender identity as a protected category could provide access to reclassification of sex to some extent. However, it also lends support to the arguments that trans people are not banned from having their private, subjective and internal gender identity when administrative authorities insist that sex classification on birth certificates reflects objective external ‘facts.’
If or when jurisdictions reform these laws and policies, they would probably follow one of the other groups of policies found around the globe: sterilization requirements; general medical requirements; corroboration requirements; and self-identification. As we shall see, much like in the Kansas decision, these groups of policies accept to varying degrees the mutability of gendered characteristics and abilities, yet only insofar as reclassification can be justified by holding onto other kinds of immutable truths.
Sterilization Requirements
Sterilization requirements demand that the applicant undergo sterilization and/or genital- related130 surgery as a precondition for sex reclassification. Under these laws and policies, the applicant is requested to provide proof of “sex reassigment surgery”131 or “corrective surgery which has changed the anatomical structure of the sex of the individual,” 132 “sex change
130 Genital related surgery almost always includes sterilization. Female genital reconstruction (performed on trans women) involves removal of the testes and the penis (see: Eli Coleman et al, “Standards of care for the health of transsexual, transgender, and gender-nonconforming people, version 7” (2012) 13:4 International Journal of Transgenderism 165–232 at 62–63.). Male genital reconstruction (performed on trans men) often involves the closure of the vaginal tube or other modifications of the genitals and often also includes a hysterectomy (Ibid at 63.). Removing and altering reproductive organs often causes infertility (Ibid at 50.). 131 Fla. Stat. Ann. § 382.016 (2006)(US); Mich. Comp. Laws Ann. § 333.2831(c) (2006)(US); Neb. Rev. Stat. § 71-604.01 (2005)(US); N.C. Gen. Stat. §§ 130A-118(b)(4), (e) (2005)(US); Wyo. Stat. Ann. § 35-1-424 (2005)(US). 132 La. Rev. Stat. Ann. § 40:62 (2006) (US).
33 operation,” or other similar phrasing. This stream of law and policy implicitly or explicitly includes a demand for mental health diagnosis, which, in 2020, is still a precondition for accessing these surgeries.133
Even when legal protocol does not directly demand proof of genital surgery, it might still be required. In some jurisdictions, while the relevant legislation does not make direct reference to genital related surgery, it is still a demand put forth by local administrative officials.134Alternatively, sometimes when the written law requires genital surgery, other proof is also acceptable.135 In some other jurisdictions, while the law requires “reassignment,” de facto any kind of medical intervention would suffice.136
There are people who access these procedures as part of their medical transitions, albeit a minority among trans communities.137 When these procedures are presented as precondition for legal recognition, they do not reflect informed choice but rather a grave breach of bodily autonomy.138 Sterilization requirements are not uncommon139 or outdated pieces of law yet to be
133 Coleman et al, supra note 130 at 27. 134 Alaska, NATIONAL CENTER FOR TRANSGENDER EQUALITY , https://transequality.org/documents/state/alaska (last visited Jan 29, 2019). State-by-State Overview: Rules for Changing Gender Markers on Birth Certificates, Fact Sheet, by Transgender Law Center, Fact Sheet (Transgender Law Center, 2017). 135 For instance in Florida, the law refers to “sex reassignment” but also accepts US passport gender change letter as evidence. Notably, to reclassify sex on passports, it is enough to provide a certificate from one’s doctor stating that the applicant underwent “clinical treatment” to reclassification, no specific details on the nature of treatment are required (see: Florida, NATIONAL CENTER FOR TRANSGENDER EQUALITY , https://transequality.org/documents/state/florida (last visited Jan 22, 2019).) 136 In Massachusetts the law does refer to “permanent reassignment” (see: Mass Gen. Laws Ann. ch. 46, § 13(e) (2015). in Mississippi the administrative code askes for a statement that attests to “reassignment” (see: Miss. Admin. Code 15-5-85:3.21.) in North Dakota the law requires the applicant “undergo a sex conversion surgery”, yet in all three jurisdictions genital surgery, or surgery at all, is not required by authorities. In Kentucky the law does require “that the gender of an individual born in the Commonwealth has been changed by surgical procedure” yet it does not specify that such surgery must be genital related (see: KY. Rev. Stat. Ann. § 213.121(5) (2005).) 137 “USTS Report”, online: 2015 US Trans Survey
34 reformed. As recently as January 2019, Japan upheld the constitutionality of sterilization requirements, justifying the government’s interest in preventing “abrupt changes in a society where the distinction of men and women have long been based on biological gender.”140
Analysis
Situating sex classification as part of the broader historical apparatus of the administrative state suggests that eugenics had a lot to do with producing categories of people, “promoting life and reproduction for some defined, desired populations and/or suppressing reproduction of undesired populations.”141 Rather than being unique, sex classifications are thus haunted by the ghost of eugenics and its many victims. Indeed, we must keep these ghosts in mind in any attempts to define the border of ‘trans’ as a protected category through statistical information.142
Sterilization requirements, understood as an ongoing historical link between eugenics, statistics, and public registrars, are not only aimed at differentiating between wrong and right bodies. Sterilization requirements also constrain or enable the performativity of bodies, that is,
WATCH (2018), https://www.hrw.org/news/2018/10/12/czech-transgender-sterilization-law-violates-right-health (last visited Dec 26, 2019) , China (see: Legal Gender Recognition A Multi-Country Legal and Policy Review in Asia, by Jack Bryne & Eszter Kismodi (United Nations Development Programme and Asia Pacific Transgender Network) at 34.), Japan (see: Human Rights Watch, “Japan: Compelled Sterilization of Transgender People”, (19 March 2019), online: Human Rights Watch
35 what is right or wrong for those bodies to do, be, produce, or reproduce. Sterilization requirements expose the link between the classifcation of sex and certain ideas about reproduction and sexuality. This group of laws and policies is troubled by the idea that persons designated F might impregnate, or that persons designated M might become pregnant.143
This point was made by a French lower level judge in one of the cases leading to the European Court of Human Rights (ECtHR) ruling on the illegality of medical intervention requirements as precondition for recognition.144 The judge was outraged that “ persons of female appearance who nevertheless continue to have a male external sexual anatomy but can marry a man” and “in the opposite case person who is male in appearance would continue to have female genitalia and could thus give birth to a child!!! [three exclamation marks in original]”145 The claim was later restated by the French government as its own interest in the “sexual order of society”.146 The Japanese Supreme Court, in its decision to uphold sterilization requirements, sounded similar concerns that pregnant men “may cause confusion in society.”147
To prevent possible “confusion” 148 and to protect the “sexual order of society,” 149 infertility becomes a precondition for inclusion in a category one was not assigned at birth. Absurdly, this infertility means that these ‘new’ members of F/M category will not be able to reproduce at all. This failed logic makes it clear that the state’s interest in the purpose of these requirements is not in the actual production of babies, but in reinforcing dominant sexuality norms. It is about the social role certain bodies are to represent, whether they can fulfill it or not. For this reason an infertile gender normative man would not be reclassified as F, while infertility is a precondition for the recognition of a trans man as M. The body of the former is right
143 This point was actually made by a French lower level judge in one of the cases leading to France in the European Court of Human Rights intervention that canceled the France requirement to undergo medical intervention as pre condition for legal recognition (see: AP, Garçon & Nicot v France App Nos 78995/12, 52471/13 and 52596/13 (ECHR, 6 April 2017) §48. 144 AP, Garçon & Nicot v France App Nos 78995/12, 52471/13 and 52596/13 (ECHR, 6 April 2017) [hereinafter Nicot v France] §48 145 Ibid. 146 Ibid, at §104. 147 note 140 at 2. 148 Ibid. 149 Nicot v France, supra note 144, at §48.
36 regardless of whether he can reproduce, and the body of the latter is wrong as long as he can reproduce.
Specific genital related prerequisites, imposed at times without a direct requirement for sterilization, further expose these norms to be based not in the actual matter of bodies, but rather in gender expectations.150 For example, if one wants to be designated M, they must have genitals that look as if they were assigned M at birth, even if they are dysfunctional in the normative sense. This logic reflects the assumption that the administrative act of assigning sex at birth manifests ‘natural’ truth of adult bodies and desires, i.e., their ‘true sex.’ These requirements enforce a weak version of the wrong body narrative that, despite being extremely pathologizing, also provides for certainty in reclassification.
As noted, these requirements have also been ratified by the Supreme Court of Japan in January 2019.151 But the Japanese requirement seems to counter global trends. Sterilization laws and policies allow for the grave breach of bodily autonomy, as they demand the applicant to render themselves infertile through highly intrusive and complicated medical procedures. Forced sterilization and genital surgery requirements for reclassification have been denounced in different jurisdictions around the globe as inhumane, including by the constitutional courts in Germany152, Ukraine153, and Italy.154
These decisions adopted, to a certain extent, the ECtHR position that while sterilization is prohibited, states can require proof of “gender identity disorder.”155 Thus these decisions only partly reject the weak version of the ‘wrong body’ narrative in favour of adopting the strong one. Trans experience is still a pathology, but one that does not necessarily require one to ‘fix’ the body. Sex
150 Judith Butler, Gender trouble : feminism and the subversion of identity (New York: Routledge, 2006). 151 Japansupra note 139. 152 BVerfG, decision of the First Senate of 11 January 2011 - 1 BvR 3295/07 -, marg. (1-82), http://www.bverfg.de/e/rs20110111_1bvr329507.html [Germany] 153 S-Front, Sterilization in exchange for a passport: a transgender person proved the illegality of the procedure in the court of Ukraine, СУБВЕРЗИВЕН ФРОНТ / SUBVERSIVE FRONT , http://s- front.org.mk/en/2016/08/10/english-sterilization-in-exchange-for-a-passport-transgender-proved-the-illegality- of-the-procedure-in-the-court-of-ukraine. 154 Cambio sesso all’anagrafe, per Cassazione non serve l’intervento chirurgico, , IL FATTO QUOTIDIANO (2015), http://www.ilfattoquotidiano.it/2015/07/20/cambio-sesso-allanagrafe-per-la-cassazione-non-e-necessario- intervento-chirurgico/1890334/. 155 Nicot v France, supra note 144 at p.35&44
37 classification should be determined by gender identity, but this identity, insofar as it is not congruent with the sex assigned at birth, should be determined by an external diagnosis by professionals (whose diagnostic criteria are foremost designed to discern those who should have access to medical technologies from those who should not).156 If and when sterilization requirements are reformed, they might be replaced by ‘softer’ medical requirements that still share the position that a change to the sexed body is required in order to reclassify legal sex.157
Bodily Modification Prerequisites
This group of laws and policies demand that the applicant undergo some gender affirmative medical procedure, which does not have to include sterilization or genital surgery. These procedures can include non genital surgery, such as breast removal for men and Female Facial Feminization surgeries for women, or hormonal replacement therapy. Bodily modification prerequisites to reclassification provide access to proper identification documents to a broader group of people, as only a minority of trans people undergo genital-related surgery.158
Bodily modification prerequisites laws and policies are commonly found in the US,159 and in many other jurisdictions globally.160 Many are the result of reforms over the past decade.161 In
156 American Psychiatric Association, Diagnostic and statistical manual of mental disorders (DSM-5®) (American Psychiatric Pub, 2013) at 453. (“Post[social]transttion: The individual has transitioned to full-time living in the desired gender (with or without legalization of gender change) and has undergone (or is preparing to have) at least one cross-sex medical procedure or treatment regimen—namely, regular cross-sex hormone treatment or gender reassignment surgery confirming the desired gender (e.g., penectomy, vaginoplasty in a natal male; mastectomy or phalloplasty in a natal female). The post[social]transition specifier may be used in the context of continuing treatment procedures that serve to support the new gender assignment. Individuals with gender dysphoria have a marked incongruence between the gender they have been assigned to (usually at birth, referred to as natal gender) and their experienced/ expressed gender. This discrepancy is the core component of the diagnosis. There must also be evidence of distress about this incongruence.”) 157 For instance in Ontario, Canada, when genital related requirements were found to be in breach of human rights by the Human Rights Tribunal (see: XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 (CanLII),
38 some jurisdictions, the law demands some kind of surgical intervention for “sex change” but does not insist on sterilization or genital-related surgery. In others, the applicant needs to provide proof of some type of medical intervention, such as hormone replacement therapy or other medical treatment.162 Much like sterilization or genital surgery, there is an implicit or explicit demand that the applicant receive a medical diagnosis to access these medical technologies.163
Analysis
Bodily modification prerequisites reflect change in the professional discourse regarding gender affirmative medical care. Current medical standards on accessing gender-affirnative technologies no longer refer to a singular process of medical transition. The idea that “sex change” is a one-
7), North Dakota(“North Dakota”, online: National Center for Transgender Equality
39 size-fits-all process was replaced by an individual care model.164 Genital surgery or sterilization are no longer considered an essential part of the process.165
Medical protocols, much like this stream of laws and policies, retain an idea of a linear unidirectional transition; the difference is that they now recognize the multiplicity of possible paths from point A to B, imagining both as located on a spectrum. As medical professionals authorize as credible a variety of subjective gender identities, it is largely because they are believed to be, and are articulated as, rooted “in a deep, stable, innate disposition.”166 Accessing medical technologies still requires adopting a coherent essential narrative that asserts the “objectivity of subjective identity.”167
Bodily modification prerequisite laws and policies follow the current medical standard, which considers gender identity to be a subjective truth of the self, diagnosed only through a personal narrative, to be affirmed by way of individually tailored uses of medical technologies. For this reason, unlike prohibition on reclassification or sterilization requirements, these laws and policies make repeated references to the concept of “gender identity.”168
In demanding bodily proof of a transition, these policies echo, much like in reproduction- related schemes, the idea of ‘sex change’ as a medical procedure that can produce ‘natural’ sex to some extent. One is still supposed to have ‘completed’ their transition from one binary point to another, even if there is a recognition that the exact route of such a journey can differ between applicants. That is, bodily modification technologies are still seen as a tool of ‘aligning’ an inner truth to an outer reality. Requiring medical intervention of some sort reflects the idea that sex
164 Both the Standards of Care (SOC) of the World Professional Association for Transgender Health (WPATH) (see: Coleman et al, supra note 130.) and the Diagnostic and Statistical Manual of Mental Disorders (DSM)164 of the American Psychiatric Association (APA) (see: AMERICAN PSYCHIATRIC ASSOCIATION & OTHERS, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-5®) (2013)). require designing an individual care plan for each patient from a variety of available treatments. 165 Coleman et al, supra note 130 at 54. 166 Rogers Brubaker, Trans : gender and race in an age of unsettled identities (2016) at 7. 167 Ibid. 168 In North Dakota the statute is titled : “Amendments as result of Gender Identity Change”, In Connecticut the law talks about “gender change” (Public Act 15-132),, in Delaware, Rhode Island, Vermont, Pennsylvania and Illinois about “gender transition”, in D.C the section is called “change of gender designation” and “gender marker” in New York, in Hawaii the law talks about the applicant’s “new gender”.
40 assigned at birth is reflective of an inner truth at the core of bodies regarding their characteristics and abilities.
By granting authority to medical professionals and demanding a bodily modification, these policies still reflect a grave breach to autonomy. Since 2014, the American Medical Association (AMA) has supported “policies that allow for a sex designation or change of designation on all government IDs to reflect an individual’s gender identity, as reported by the individual and without need for verification by a medical professional.”169 Setting forth this position, the AMA found that policies “must acknowledge that the correct course of treatment for any given individual is a decision that rests with the patient and the treating physicians.”170
Medical intervention-based policies have also been found to breach the bodily autonomy of applicants by international tribunals. The ECtHR found that not only sterilization requirements but also any demands for bodily modification as precondition for reclassification violates the right for “private life.” 171 In November 2017, the Inter-American Court of Human Rights advised member states172 against forced sterilization and any prerequisite of medical bodily modification and pathologization, declaring a right for “self-perceived gender identity.”173
This group of laws and policies is entangled in its own circular arguments. It justifies reclassification by the fact that an actual change occurred to the body while it rationalizes medical intervention as reflecting an autonomous will arising from one’s gender identity. The breach of bodily autonomy is understood as advancing the autonomy of the individualized self. This groups of laws and policies continues the logic of previous groups of policies discussed, in
169 “H-65.967 Conforming Sex and Gender Designation on Government ID”, online: American Medical Association
41 aligning sex reclassification with the overall scheme of birth assignment, in which expectations about inherent characteristics and abilities are marked on the body through its classification into legal categories.
As I argued with respect to the ECtHR decision prohibiting sterilization and approving medical diagnosis, both bodily modification prerequisites and current medical standards represent a mixture of ‘wrong body’ narratives. Trans identities are not treated as a mental disorder per se, but rather become legible as a ‘gender identity’ only if one is serious enough about their “self identity”174 that they are willing to pay for it with blood. The access to this form of payment is determined by diagnostic criteria that require coherence and stability. Thus, gender identity does determine ‘true sex’, but gender identity itself is determined by a professional corroboration of an innate truth, expressing a desire for external congruence through bodily modification. The rise of the individualized self, understood in terms of immutable gender identity, a right for “self-perceived” gender as the Inter-America court declared, shifts legal discourse from looking for stability on the external body to locating it within the self, giving rise to the authority of corroboration.
Corroboration Schemes
The growing recognition of a trans right to bodily autonomy, as well as the growing legal emphasis on gender identity, has led to the emergence of a recent group of laws and policies recognizing the idea that gender identity is a subjective trait of individuals.175 This group of policies does not require bodily modifications, but rather external proof of one’s inherent gender identity in the form of a corroborating party. The corroborating party is most often a medical or
174 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 386. 175 Corroboration policies can be found in Canada in Ontario (Section 36, Vital Statistics Act), Quebec (§71 CQLR c CCQ-1991), Manitoba (§25(5) The Vital Statistics Act, CCSM c V60) and British Columbia (§27 Vital Statistics Act, RSBC 1996, c 479), Saskatchewan (§31 The Vital Statistics Act, 2009, SS 2009, c V-7.21), New Brunswick (§34 Vital Statistics Act, SNB 1979, c V-3), Nova Scotia (§25 Vital Statistics Act, RSNS 1989, c 494) and Prince Edwards Island (§12 Vital Statistics Act, RSPEI 1988, c V-4.1). As well as in the Netherlands(Wet van 18 december 2013 tot wijziging van Boek 1 van het Burgerlijk Wetboek, Stb. 2014), France (Art. 61-5 C.civ), Greece (Legal Gender Recognition Law (Νόμος 4491/2017 - Νομική αναγνώριση της ταυτότητας φύλου), as well as in New York City (24 RCNY Health. Code § 207.05(a)(5) (2014), Nevada (Nav. Admin. Code § 440.130) and Indiana (Ind. Code Ann. § 16-37-2-10).
42 mental health professional, but it could also be a judge, a family member, or an acquaintance of the applicant.
In order to move between M and F, one has to prove the stability of one’s gender, both by publicly declaring alliance to the sex category in which one wishes to be included and by having an external party corroborate that proclamation. For instance, Ontario asks the applicant to state that they “intend to maintain that gender identity”;176 the Québécois applicant must assert that they “assume that gender identity and intend to continue doing so.”177 Corroboration based sex reclassification laws and policies do not require any medical bodily modification. Instead, corroboration of a third party attesting to the gender identity of the applicant is required.
What all corroborative third parties have in common is that they are not supposed to decide whether the applicant is indeed trans, but instead are charged with validating the applicant’s self attestation of their innate gender identity, and that this identity is stable. Different third parties can serve as corroborators. The third party can be a medical or mental health professional attesting that the applicant’s request for sex reclassification reflects their gender identity.178 The third party can also be a person who has “personal knowledge of the facts stated therein” and can corroborate the facts contained in the reclassification applicant affidavit.” 179 In other jurisdictions the corroborating party is a judge.180
176 Ministry of Government and Consumer Services Government of Ontario, “Statutory Declaration for a Change of Sex Designation on a Birth Registration of an Adult”, online: 43 Corroboration schemes are a significant improvement over previously reviewed approaches to sex reclassification, as they are more respectful of the right to autonomy as well as the privacy of the applicant. These schemes allow an even broader group of people to reclassify their sex, including those who have not accessed any medical technology for gender affirmation. If the applicant can find a doctor to sign their application, or a sympathetic judge or someone to vouch that they are who they are, reclassification should be accessible. Analysis The logic behind the corroboration schemes still resonates that of the pathologizing approaches, namely, in the demand for an objective position located outside of the subjective point of view. Under this approach, the objectivity moves from being found on the body in the form of medical intervention to being affirmed by an external other. Thus, while under this model gender is de- medicalized insofar as it does not presume bodily modification (or a desire for modification), it is not de-essentialized; gender is still considered an immutable truth that already exists, even if unapproachable, at birth. That is, corroboration schemes are justified because they reflect a stable extrajudicial position of the subjective self, the gender identity one is allegedly born with. The subjective truth of the applicant’s gender identity is required to be corroborated and is made known to the third party through the applicant’s self-narrative. Here, also much like in the more medicalized policies, coherent essentialist narrative asserts the “objectivity of subjective identity,”181 and allows the third party to provide external proof in the form of corroboration. Trans experiences and identities are no longer described as a mental disorder per se that is ‘cured’ though extensive bodily modification. This move to a ‘gender identity’ changes one’s relationship with the state, making them dependent on the authority of external, most often trans-puissent-utiliser-prenom-usage-universite>. However, in analytical terms, corroboration through court shares similar administrative justifications as other forms of corroboration, mainly, that the individual subjective position is granted authority through an external party, as will be further discussed. 181 Brubaker, supra note 166 at 7. 44 institutional, parties (even if they ultimately rely on one’s subjective narrative of stability and coherence). De facto, the corroborator is not asked to tell the truth about the statement made by the applicant, but about the applicant’s gender identity. The corroborator cannot know the truth about the applicant’s gender identity outside of its external markings, that is, by considering whether the applicant ‘walks and talks’ as if they belong to the sex category in which they wish to be classified. Corroboration relies on gender expectations. The process of corroboration through gender expectations thus rest on validating the applicant’s desire to look as if they were assigned their reclassifies sex at birth. The corroborating process ensures alignment between gender expectations and classified sex, reinforcing the justification for birth assignment of sex. Bodily modification prerequisites ask to fix the “wrong body” to justify reclassification. Under corroboration requirements, sex is reclassified to fix the ‘wrong administrative body’, one in which assigned sex and gender expectations do not align, suggesting that the alignment of gender expectations and sex designations is usually justified. That is, corroboration requirements shifts from the pathologizing weak version of the wrong body to the strong gender-identity-is-innate version. In fact, as shown above, corroboration policies often require the applicant to declare the stability of their gender identity. This stability and coherence are ‘proven’ to the corroborating party by a persistent desire to look as if one has always been their gender identity, has always been a man or a woman. Within the logic of corroboration requirements for reclassification, the demand that a third party attest to the gender identity of the applicant cannot be justified. If gender identity is subjective and known only to the self and others through personal narrative, what extra layers of ‘truth’ does corroboration add? Rather than adding information or truth, the demand for corroboration can be read as another form of undermining the authority and autonomy of trans people. Though corroborating policies amend the harm to the bodily autonomy of trans people presented in demands for bodily modifications, they still breach one’s autonomy in the sense of requiring an external party to verify their subjective self. They also curtail the possibility for 45 non-binary classification, for if corroboration requires resorting to binary expectations, non- binary experiences are much harder to corroborate.182 These are the issues that self-identification aims to amend. A Right to Self-Attested Gender Identity Self-identification, that is laws and policies known as gender self-determination, is considered the “gold standard”183 for legal recognition and protection of trans people. These laws and policies allow for sex reclassification based solely on applicants’ self-attestation of their gender identity, without requiring any external evidence (medical or other). Self-identification currently allows for the widest access to proper identification documents, as it offers a simple and often quick procedure for reclassification without requiring the applicant to undergo medical procedures, to be pathologized, or to ask for external corroboration of their own identity. In 2012, Argentina became the first jurisdiction to legislate the recognition of self-attested gender identity, defining gender as “internal and individual” and stating that all persons have a right to the recognition of their gender identity.184 Since Argentina’s legislation there has been a visible global trend toward legislation of similar legal arrangements in South America (Colombia 2015;185 Brazil 2018;186 Costa Rica 2018;187 Chile 2018188 Mexico: Mexico City 2015189), North America (Canada: Nova Scotia 2018,190 the Yukon 2017,191 Newfoundland and Labrador 2016;192 US:193 California 2019;194 New Jersey 2019195), in Europe (Denmark 2014;196 Malta 182 As will be further addressed, when Ontario started issuing non-binary designations for health cards and driving licences they removed all corroboration requirement for those designation will keeping them in place with respect to M/F reclassification. 183 Scherpe & Dunne, supra note 103 at 654. 184 Argentinian Gender Identity Law, Supra note 23 185 Decreto 1227 de 2015 (Columbia) 186 Conselho Nacional de Justiça. Provimento nº 73, de 28/06/2018, Dispõe sobre a averbação da alteração do prenome e do gênero nos assentos de nascimento e casamento de pessoa transgênero no Registro Civil das Pessoas Naturais (Brazil) 187 Executive Decree No. 41173-MP (Costa Rica) 188 de la Ley N° 21.120 (Chile) 189 §135 (b) Código Civil Para el Distrito Federal, D.O., 26 de marzo de 1928 (Mex.) 190 §25(1) Vital Statistics Act, RSNS 1989, c 494 (Canada) 191 §12 Vital Statistics Act, RSY 2002, c 225 (Canada) 192 §26(a) Vital Statistics Act, 2009, SNL 2009, c V-6.01 (Canada) 46 2015;197 Ireland 2015;198 Norway 2016;199 Portugal 2018;200 Belgium 2017201), Asia (Pakistan 2018202), and Australia: Tasmania 2019.203 As of 2020, more than a quarter billion people around the world live under legal regimes that recognize an individual right for gender identity, insofar as it is mainly conceptualized as the ability to reclassify sex based on self-identification. Jurisdictions have taken various approaches to the right to gender identity, what its normative status is, and how it can be achieved. The Argentinean law still provides the most refined articulation of an autonomous self-identification. Article 1 of the Argentinian law constitutes a right for gender identity. Article 2 understands gender identity as an “internal and individual” feeling, portraying gender as deeply rooted inside the subjective self, and by doing so, granting it objectivity. Gender identity is not a matter of individual choice but rather an expression of an immutable trait. By placing gender in the private realm of the self, knowable only to the autonomous individual, gender identity is constituted as “self-evident,” 204 justifying its legal formulation as a right. 193 While the California Gender Recognition Act and New Jersey’s Babs Saperstein Law are the first two pieces of independent legislation of self-identification, they are joining existing administrative policies in Montana (Admin. R. Mont. 37.8.311 (5) (2017)), Washington state (WASH. ADMIN. CODE 246-490-075 §1(c)(2018)), Oregon (OR.ADMIN.R. 333-011-0272 (2018)), and Idaho (Idaho Admin. Code § 16.02.08.201 (2006)) (change of policy implementation effective as of April 2018). Similar policies exist in the Canadian Provinces Newfoundland Labrador, the Yukon and Nova Scotia (see: §12 Vital Statistics Act, RSY 2002, c 225 (Yukon); Vital Statistics Act, 2009, SNL 2009, c V-6.01 (Newfoundland and Labrador) §25(1) Vital Statistics Act, RSNS 1989, c 494 (Nova Scotia)) 194 S.B 179, Leg., 2017-2018 Reg. Sess. (Cal. 2017) 195 Asse. No. 1718, 218th Leg (N.J 2018) 196 Lov nr. 752 af 25.6.2014 om ændring af lov om Det Centrale Personregister [Denamrk] 197 Gender Identity, Gender Expression and Sex Characteristics Act No. XI of 2015 [Malta] [Hereinafter the Maltese Law] 198 Gender Recognition Act 2015 [Ireland] 199 Lov om endring av juridisk kjønn (LOV-2016-06-17-46) [Norway] 200 Lei n.º 38/2018 [Portugal] 201 25 JUIN 2017. - Loi réformant des régimes relatifs aux personnes transgenres en ce qui concerne la mention d'une modification de l'enregistrement du sexe dans les actes de l'état civil et ses effets B.S 10 juli p. 71465 [Belgium] 202 Transgender Persons (Protection of Rights) Act, 2018 [Pakistan] 203 Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (TAS) [Australia] 204 Lynn Avery Hunt, Inventing human rights: A history (WW Norton & Company, 2007) at 27–29. 47 The Pakistani law declares the right of “a transgender person” to be recognized as per their “self perceived gender identity.”205 The Pakistani law defines “gender identity” as “innermost and individual sense of self as male, female or a blend of both or neither; that can correspond or not to the sex assigned at birth”.206 It defines “transgender person” in various ways, addressing localized identities and expanding its reach to any divergence from “the social norms and cultural expectations based on the sex they were assigned at the time of their birth.”207 The Maltese law adopts the understanding of gender as an objective truth located within the highly subjective space of ‘internal and individual’ feeling.208 Consequently, the Maltese law declares that all persons being citizen of Malta have a right to the recognition of their gender identity, to free development according to that identity, to be treated according to that identity, and to bodily integrity and physical autonomy.209 The Portuguese law also adopts the formulation of a right for self-identified gender and expression.210 The law ensures the free and equal protection of dignity and rights with respect to exercising the right to gender identity and expression.211 The Costa Rican policy declares that each person has a right to autonomously define their gender and sexual identity.212 The Chilean law defines the right to gender identity, understood as personal internal conviction of being a man or a woman, as the power of any person whose gender identity is incongruent with their sex classification to request a rectification.213 Other pieces of legislation share the inclination to view gender identity as inherent, essential, and individual, although they do not directly define it as a legal right. The Danish law, 205 §3 Transgender Persons (Protection of Rights) Act 2018 [Pakistan] 206 Id at §2(f) 207 Id at §2(n) (i) Intersex (Khunsa) with mixture of male and female genital features or congenital ambiguities; or (ii) Eunuch assigned male at birth, but undergoes genital excision or castration; or (iii) a Transgender Man, Transgender Woman, KhawajaSira or any person whose gender identity and/or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth.” 208The Maltese Law, Supra Note 165, Art. 2. 209 Id at Art. 3. 210 Art. 1 Lei n.º 38/2018 [Portugal] 211 Id at Art.2 212 Art. 3 Executive Decree No. 41173-MP [Costa Rica] 213 Art 1. de la Ley N° 21.120 [Chile] 48 which talks about “belonging to the opposite gender,” presumes a binary system of gender and enables movement based on feeling of belonging, something that is beyond choice, echoing the idea of ancestry. The Norwegian law, like its Danish counterpart, also talks about feelings of belonging.214 The Mexican jurisdiction’s amendments to their civil code echo the Yogyakarta principle of 2006 by describing gender identity as a self-perceived entity that may or may not correspond to birth assignment. The notion of self-perceived truth also appears in the Brazilian regulation.215 The Colombian Supreme Court decision defined “sexual identity” as an “internal consideration.”216 The California Gender Recognition217 act is the most extensive piece of US legislation addressing gender self-identification, stating that “Gender identification is fundamentally personal.”218 The act declares the connection between “state-issued identification documents” and full legal recognition of gender identity, 219 which it understands as “fundamentally personal.”220 Other pieces of US and Canadian policy,221 whilst they do not define gender identity in terms of a right, follow similar logic as the California act by allowing self-attested recognition of gender identity. Finally, Irish law provides a slightly different kind of framework by providing applicants routes for recognition of their preferred gender, which then becomes their status for all purposes. As the law explains, “if the preferred gender is the male gender the person’s sex becomes that of a man, and if it is the female gender the person’s sex becomes that of a woman.”222 The newest piece of legislation brings with it another creative innovation. According to the 2019 Tasmanian law, gender means besides, male, female or non-binary, “a word or phrase that is used to indicate 214 For a detailed analysis of the Norwegian Law with the social context of Norway see: hartline, supra note 28. 215 The Brazilian regulation that points to the inter American court of human rights advisory opinion OC 24/17. Gender Identity and Equality and Non-Discrimination of Same-Sex Couples, Inter-American Court of Human Rights, Advisory Opinion No. OC-24/17, para. 85-101 216 note 112. 217 S.B 179 (Cal. 2017) 218 Ibid at §2 219 Ibid at §2a 220 Ibid at §2b 221 §12 Vital Statistics Act, RSY 2002, c 225 (Yukon); Vital Statistics Act, 2009, SNL 2009, c V-6.01 (Newfoundland and Labrador) §25(1) Vital Statistics Act, RSNS 1989, c 494 (Nova Scotia) 222 §18a Gender Recognition Act 2015 [Ireland] 49 a person’s perception of the person’s self as being neither entirely male nor entirely female.”223 This creative definition affirming a “person’s perception of the person’s self,” reaffirms, as in all other self-identification laws and policies, that gender identity is a self-evident immutable and inherent trait of the self. This definition is far more elastic than those pertaining merely to the categories M/F or even X, as with other non-binary designations to be reviewed shortly. Analysis Positioned at the forefront of affirmative reclassification, self-identification laws and policies allow for de-pathologized access to proper identification documents, while removing significant procedural barriers. 224 Their importance in improving access to life chances cannot be overstated. All other reclassification avenues require a prior application to some kind of institution (excluding corroboration by acquaintance) and undergoing some kind of diagnostic process and/or medical procedure. By removing these requirements, self-identification removes significant barriers for poor, racialized, disabled, colonized, and other trans communities that have limited access to these institutions and procedures. Self-identification laws stake their own legitimacy in securing the innate and individual disposition of gender identity. For instance, Art. 8 of the Argentinian law sets a far more securitizing process to making further changes to one’s sex designation: “The record amendments prescribed by the current law, once completed, can only be modified again with judicial authorization.” Thus, section 8 uncovers the law’s underlying premise of a stable and coherent gender identity. Reclassification is understood as legitimate because it indicates something beyond the regulatory state or social control. Much like in the context of corroboration, instead of fixing the ‘wrong body,’ self-identification fixes the wrong ‘administrative body,’ allowing for self- 223 §3a Births, Deaths and Marriages Registration Act 1999 224 In certain jurisdictions, structural limitations prevail. For instance, in Brazil, an administrative self-declaration process requires providing almost twenty different documents proving the identity of the applicant, yet this is not a specific burden placed on trans population but rather a characteristic of Brazilian administration (I thank Prof. Mariana Mota Prado for this insight on Brazilian administrative law). 50 inscription into an order of gender expectations. Much like with corroboration, it reinforces the congruence of certain bodies and certain gender expectations. The current formulation of a right to gender identity assumes that in the ‘normal’ course of events, classifying newborns at birth into differentiated categories of citizenship based on the correlation between external body features and a delineated social role manifested through gender expectations is a legally justifiable and administratively purposeful act. According to the logic embedded in self-identification legislation, usually the sex classified body and gender identity align in a specific binary order: people born with a visible vagina are female by sex classification and women by gender identity; people born with a visible penis are male by sex classification and men by gender identity. The ‘external’ trait of sex and the ‘internal’ trait of gender identity are both understood as immutable. In extraordinary cases, the process of classification-correlation fails, and that is when the right to self-attested gender identity takes effect. The ‘mistake’ made at birth reveals itself when a ‘personal experience of the body’ differs in an ‘internal and individual way’ from the legal category of personhood designated to an individual. Only in those cases is the person entitled to a sovereignty over their gender identity manifested in the act of reclassification. In all other cases, the state’s sovereignty, along with its original allocation of birth assigned sex, remains unchallenged. Further, even the self-attestation policies harm autonomy as they require one to register their gender identity with the state. In this way, self-identification completes the transition from the weak ‘wrong body’ narrative to a strong one, in which innate gender identity determines one’s true sex. Here is the catch: it is not the self that determines their gender, it is rather gender identity, as an individuating category, which determines who the self is. Having a gender identity requires one “to orient oneself normatively in relation to others seeking recognition for behaviors, attributes, and sensations that one regards as important.”225 225 Morland, supra note 15 at 112. 51 Similar to the dynamics of corroboration schemes, one is no longer required to modify their body or to be diagnosed or corroborated, but they are still expected to have a desire to have been born in a body that is congruent to their gender identity. Thus, self-identification situates those seeking reclassification as less ‘real,’ as pretending to belong to the sex classification they acquire. One is an autonomous subject only insofar as they ask to register their gender identity with the state. The sovereignty of reclassification is conscripted and enabled by the legal precondition that one can, should, or will have a gender identity, a prediction that presumes a hierarchy of authenticity between ‘wrong’ and ‘right’ bodies.226 Non-Binary Designations An array of jurisdictions have started offering non-binary sex designations.227 Non-binary sex designations allow people to be documented in the public registrar and/or carry identification documents that mark their sex as other than M or F. These designations have primarily been used by intersex persons, gender non-binary persons and third gender people, but have recently also started to be used as gender neutral markers available for the general population. As non-binary classifications allow a person’s gender identity to determine their sex classification and only in a minority of policies do they require external corroboration, I include 226 Aeyal M Gross, “Sex, love, and marriage: Questioning gender and sexuality rights in international law” (2008) 21:1 Leiden Journal of International Law 235–253 at 251. 227 In 2007, the Supreme Court of Nepal ruled in favour of “people of third gender”, ordering the government to implement a third gender category in its administration. While, the third gender category is available on official documents, Nepal has yet to implement a comprehensive policy on reclassifying sex and accessing proper ID’s rests on relentless advocacy of individual applicants (see: Michael Bochenek & Kyle Knight, “Establishing a third gender category in Nepal: process and prognosis” (2012) 26 Emory Int’l L Rev 11. In 2012, New Zealand introduced a de- medicalized process for allowing an X marker option on its passports. The applicant is asked to complete a statutory declaration indicating s how long they have maintained their current sex/gender identity. This policy does not apply to other official documents, and applicants are warned against multiple changes in sex/gender identity that “may affect a person’s ability to confirm their identity in the wider community” (see: “X marks the spot on passport for transgender travellers”, New Zealand Herald (5 December 2012), online: 52 them in the same analytical framework as self-identification. Indeed, in many jurisdictions, non- binary classification is considered part of a right for gender identity.228 However, in practice, different reclassification laws and policies can go hand in hand with non-binary markers. A jurisdiction might allow an applicant to reclassify their sex to X only if they have been diagnosed by a medical professional.229 Having an administrative option for non-binary markers does not exclude placing harmful prerequisites on applicants. In addition, non-binary sex designations are of importance and controversy among intersex communities and are often implemented to address their needs. Intersex people are often conflated with trans and gender variant people and do share some struggles with them.230 The topics of birth assignment and sex reclassification are a prime example of that. Nevertheless, their interests might differ drastically and at times be overshadowed by trans advocacy.231 While aware of conflicting interests, this dissertation does not attempt to represent a specific intersex perspective. To fully account for the needs of intersex people in relation to sex reclassification, extensive research is needed. The X marker is a solution for many who struggle to fit within the F/M system. It provides an option for identification that exceeds binary sex/gender categories. However, within a mostly binary classification system, the X marker can be a double-edged sword. Arguably, those who have limited ability to pass as gender normative are in the direst need for an ID that would reflect their presented gender identity, as their presentation is constantly questioned. However, the X marker might also bring attention to their difference. In those cases, it would seem that some would prefer to have their sex designation reclassified as M or F to provide them extra protection in the form of lowering their visibility. Further, the X marker might allow the 228 For instance options are available in all US and Canadian jurisdiction allowing self-identification of gender identity. 229 Since 2003, Australia has been allowing ‘intermediate’ persons to reclassify their sex designation on their birth certificate and passport to reflect the category X, however this was only available to those who were diagnosed as intersex. Since 2014, the X option is open to anyone “who identifies as neither male nor female.” Yet, to apply for reclassification, applicants are obliged to provide, at least, a certificate of medical diagnosis. Similarly, in 2018 Germany approved a law that allows for “other” sex classification, yet this option is only available for those diagnosed as intersex. 230 Sagit Mor, Maayan Sudai & Or Shai, supra note 44. 231 Sudai, “Revisiting the Limits of Professional Autonomy”, supra note 45. 53 state easy surveillance of gender dissidents. Further, since many spaces are still gender segregated, an X marker might not help a person justify their presence in a particular space but rather become a liability.232 Non-binary sex designation, constructed as its own separate category, still follows the binary logic itself by providing a well-defined category of “non-binary.” X markers create a binary “non-binary” classification. This position is always already in relation to binary categories themselves and to the greater scheme of distribution of differentiated legal classes across the population.233 Reviewing different implementations of allowing X sex designation reveals that, for the most part, they also conform to the same administrative structural limitation of the F/M category. The New Zealand model, which resembles self-identification, amplifies stability in the form of declaring how long the applicant has maintained their sex/gender and by warning applicants to avoid multiple changes. The Ontario reform, even if it can be considered a significant change, creates irrelevant differences between those who want to have an F/M marker and those who want an X marker, with the former still under a medical corroboration regime while the latter are free to self-declare.234 While non-binary sex markers can challenge the stability of the dominant sex categories F/M by allowing options that go beyond the binary, they reaffirm the idea that some bodies are born right and others wrong. They currently only offer after the fact routes for reclassification, though this is also changing. The Canadian provinces Newfoundland and Labrador,235 British 232 I thank Dean Spade for this elaboration. 233 Spade, supra note 26 at 15. 234 As explained in a private conversation by Adv. Nicole Nusbaum, the Ontario X marker is also a form of a gender-neutral option available to all. Paradoxically, in order to change one’s sex marker from F to M, one is still required to provide a corroboration statement for a medical professional. That is, it is easier to have a non-binary sex marker than to reclassify as F/M. 235 P M N Canada, “Newfoundland to allow switch to gender-neutral birth certificates”, (21 September 2017), online: National Post 54 Columbia,236 Ontario,237 and Alberta,238 as well as the US state of Washington,239 all issued or allowed issuing non-binary birth certificates at the demand of parents. However, even the possibility of assigning a non-binary designation does not challenge the practice of birth assignment. The diversion from binary assignment, as Foucault would argue, further constitutes the rule. While advocates such as the Gender-Free ID Coalition demand that the sex designation be removed from IDs and there be an end to the practice of birth assignments altogether in the name of non-binary interests, administration reforms have only come so far as adding a third option.240 This third option is still within the logic that justifies, in most cases, assigning binary sex designation at birth. Under these conditions, we should consider that perhaps providing an option for a non-binary sex marker is also linked to the individuation of gender identity, as much as ‘binary’ forms of self-identification provide. Self-identification and non-binary definition entrusts the individual with sovereignty but only insofar as sovereignty is the freedom of an individual to have a legal category for their gender identity, rather than a freedom from legal categories and gender identity,241 a prohibition on the enforcement of ‘wrong’ and ‘right’ bodies. Conclusion This chapter has mapped the rise of gender identity as a protected legal category. The concept of gender identity propels reforms recognizing the trans right for autonomy that bring about greater access to life prospects and limits the exposure to violence and discrimination. Justifications for sex reclassification have moved from searching for an external marker on the body to looking for 236 “Parent fights to omit gender on B.C. child’s birth certificate”, online: CBC News 55 internal markers assumed to reside in the self. It is a move from medical modification of the body, through corroboration of internal truth by another, to assuming a core immutable knowledge of the self, accessible only through an autonomous individual. Laws and policies providing for self-identification have transitioned gender identity into a self-evident immutable property of the individual self, giving it the defining characteristics of a human right.242 But several questions remain: What is sovereignty over gender identity in a reality in which a right or wrong body is already assigned at birth? What is autonomous self- determination when one must demonstrate a predetermined coherent and stable desire for congruency in order to become a self that determines? What is a right for private gender identity in the context of racializing and gendering nation-making administrative individuating systems and norms that preserve and cultivate the lives of some and expose others to premature death?243 Exploring the perils of sovereignty provided by a right to self-determine gender identity, the next chapter turns to the seminal right for self-determination, the right to self-determination of peoples in international law. Through a critical reading of the colonial, anti-colonial and postcolonial histories and current practices of the right in relation to sovereignty, I will argue that a right to a gender identity that is self-determined is fundamentally limited in its ability to address systemic harm and to hold the law accountable for the becoming of gender. 242 Hunt, supra note 204 at 27–29. 243 Spade, supra note 26 at 78. 56 Chapter 2 From Public International Law to Privatized Gender Introduction In the previous chapter I showed a shift within sex reclassification policies from the body to the self, from external to internal truth, from sterilization requirements to self-identification. I argued that while a recognition of an individual right to gender identity amends the grave breach of autonomy presented by legal schemes for reclassification, it nevertheless replaces one ‘wrong body’ narrative with another. Self-identification provides trans, non-binary, and gender nonconforming people with sovereignty to self-determine their sex classification, but it does not provide the freedom to not be classified. Thus, the sovereignty of self-identification is circumscribed by the system of sex classification and its individuating logics, in which one must be stamped with a sex classification to be an autonomous legal subject. I concluded by suggesting that a right to gender identity does not deliver the revolutionary sovereignty promise that it makes. To understand the sovereignty failure, the current chapter will attend to the legal genealogy of self-determining one’s gender identity by turning to the international legal right for self-determination of peoples, i.e., the international legal right addressing the distribution of sovereignty. Current formulation of the right for self-determination of peoples, as I will explore, is a direct result of anti-colonial struggles within international law and has enabled the massive waves of decolonialization in the mid-20th century in Asia, Africa, and the Arab world. However, as the chapter will show, this right has also operated on sameness/difference logics, systemically excluding indigenous peoples, and relegating new nation-states to subaltern positions within a global order of inequality, dependency, and exploitation. Translating these dynamics back to the context of sex reclassification, I will argue that the right to gender identity indeed redistributes sovereignty over sex classification from the administrative state to the individual. However, the focus on the self-sufficient individual’s ability to exercise a right for innate gender identity privatizes gender. By turning the focus away from the state, self-identification makes invisible the administrative structures and practices through which the law “grips bodies to produce individuals who are at once constrained and 57 enabled by norms.”244 In other words, a right for gender identity fails to address the systemic apparatus that produces the need for such a right to begin with, as it fails to address the continuous enforcement of “traditional gender categories,” which produces trans vulnerability to premature death.245 This chapter will open with a genealogy of a right to gender identity in international law and its normative connections with the right for self-determination of peoples. The second and main part of the chapter will explore the distributive effect of the right for self-determination of peoples in the context of histories and current practices of international law. Looking at the limited applicability of the right for self-determination of peoples, the chapter will turn to critical accounts of decolonisation in international law. The third part of this chapter will return to the right to gender identity, synthesizing international legal scholarship with queer and feminist legal theories to explore its perils. To conclude, I will argue that instead of focusing on the sovereignty of gender identity as a justification for reclassification, we should look back to the birth of sex classifications, the assignment of sex at birth. A Genealogy of a Right to Gender Identity The ideas behind the laws and policies allowing recognition of self-attested gender identity, known as gender self-determination, have been circulating at least since the publication of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity in 2006. The principles “provide an authoritative, expert exposition of international human rights law as it currently applies to the grounds of sexual orientation, gender identity, gender expression and sex characteristics.”246 A major source for the principles and obligations in the Yogyakarta is the International Covenant on Civil and Political 244 Morland, supra note 15 at 112. 245 Spade, supra note 26 at 15. 246 Principles, supra note 30 at 4. 58 Rights of 1966 (ICCPR),247 whose first article enshrines the right of self-determination of people as the precondition for accessing all other human rights.248 The right for self-attested gender identity is derived from these principles, which stated that “gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender.”249 Principle 3, the right to recognition before the law, states that “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination.”250 The principles call on nations to “take all necessary legislative, administrative and other measures to fully respect and legally recognize each person’s self-defined gender identity.”251 The Yogyakarta Principles Plus 10 were published in 2017, with the aim of documenting and elaborating on the developments in international human rights law and jurisprudence on issues relating to gender identity.252 These principles directly state a right to “self-determination in the context of legal recognition”253 as an indispensable part of the right to bodily autonomy and mental integrity,254 and as part of state obligations relating to the right to privacy.255 By describing gender identity as a deeply rooted feeling located inside the subjective self, the 2007 principles grant gender identity objectivity, which sets the ground for the 2017 inscription of gender self-determination as an independent right. The principles set the stage for 247 David Brown, “Making room for sexual orientation and gender identity in international human rights law: An introduction to the Yogyakarta Principles” (2009) 31 Mich J Int’l L 821 at 834. 248 Jörg Fisch, The right of self-determination of peoples: The domestication of an illusion (Cambridge University Press, 2015) at 10–11. 249 Yogyakarta Principles, “Principles on the application of international human rights law in relation to sexual orientation and gender identity” (2007) 28 Retrieved on January 2014. 250 Ibid, s 3. 251 Ibid, s 3a.Principles 2006, sec 3a 252 Principles, supra note 30 at 6. 253 Principle 31 at Principles, supra note 30. 254 Principle 32 at Ibid. 255 Ibid at 18. 59 the growing inter-jurisdiction recognition of self-identified sex classifications by constituting gender identity as self-evident, thus justifying its legal formulation as a human right.256 Since their publication, the principles have been cited by United Nations bodies, national courts, and national governments, as well as by international bodies like the Organization of American States, the Council of Europe, and the European Union. A further key indication of the reach of the principles has been the historical UN Human Rights Council resolution on June 17, 2011, the first resolution on sexual orientation and gender identity.257 The principles appear in the European Court of Human Rights’ decision prohibiting bodily modifications preconditions for reclassification, 258 and in the Inter-America Court of Human Rights advisory opinion declaring a right to self-perceived gender.259 The principles have been reported to have directly influenced the legislation of a right to gender identity in Argentina,260 Pakistan,261 Norway,262 Bolivia,263 Uruguay, 264 Brazil,265 Mexico,266 and the Netherlands.267 Notably, shortly after the principles were published in 2007, scholars have commented on their reliance on categorization of gender identity (and sexual orientation) through an autonomous perspective, as Aeyal Gross writes in 2008: If we consider […] that the binary hierarchical categories of gender and sexuality (i.e. men/women and heterosexual/homosexual) are themselves part of the problem, as this structure mandates that every person have a gender or sexual orientation[…] then we can acknowledge that the 256 Lynn Hunt describe how human rights became self-evident and how such claims rely on emotional appeal and assumptions about individual autonomy (see: Hunt, supra note 204 at 27–29. 257 Carsten Blazer & Carla Lagata, “Human Rights” (2014) 1:1–2 Transgender Studies Quarterly 99–102 at 101. 258 AP, Garçon & Nicot v France App Nos 78995/12, 52471/13 and 52596/13 (ECHR, 6 April 2017) 259 Gender Identity and Equality and Non-Discrimination of Same-Sex Couples, Inter-American Court of Human Rights, Advisory Opinion No. OC-24/17, para. 85-101. 260 Blazer & Lagata, supra note 257 at 101. 261 Usman Ali, Road Map on Implementation of Transgender Act in Pakistan (2019) at 32. 262 hartline, supra note 28 at 30. 263 Eduardo J Arrubia, “The Human Right to Gender Identity: From the International Human Rights Scenario to Latin American Domestic Legislation” (2019) 33:3 Int J Law Policy Family 360–379 at 373. 264 Ibid. 265 Park, “Yogyakarta plus 10”, supra note 30 at 241. 266 Ibid. 267 Ibid. 60 Yogyakarta Principles limit themselves to the gender/sexuality framework, without opening the door to transcending this framework. From a queer-theory perspective, assuming our identities as women or gays is not merely a liberatory act, but also one in which we subordinate ourselves to the sex/gender system that demands that ‘in the modern world everyone can, should, will “have” a nationality, as he or she “has” a gender.’268 What Gross is pointing at is the paradox of sovereignty as that which enables and constrains the individuated subject of the Yogyakarta principles. I previously suggested that answering the legitimate demands of trans people for recognition while addressing structural inequalities requires a careful examination of sovereignty, of the state, and of the subject. Sovereignty is understood here as control over the collective body politic and over the sexed body of the individual. Exploring the question of sovereignty in relation to the state and in relation to the individual, and in the state’s relation to the individual, this chapter goes back to the right of self-determination of peoples to strategically think of sovereignty within self- determined gender identity. Precautionary Comments on Binding The main international legal documents I will review in the context of self-determination are resolutions of the United Nations General Assembly. General Assembly resolutions are non- binding legal documents. They can indicate the existence of customary international law, which is binding to all international legal actors. The Statement of Principles Applicable to the Formation of General Customary International Law of the International Law Association finds that General Assembly resolutions can be considered customary law if they were adopted almost unanimously with the intention that they establish international legal rules. That is, if they can be 268 Gross, “Sex, love, and marriage”, supra note 226 at 250–251. 61 shown to either reflect a “long standing established rule”269 or “very authoritative evidence of a recently established rule.”270 The 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples (The Decolonization Declaration) was not voted in unanimously, but it was quickly adopted by other UN bodies and its principles reaffirmed by the inclusion of a human right to self-determination in both the International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966). That is, the right to self-determination of peoples was ratified by almost all UN member states. In effect, the 1960 Declaration is now recognized as principles of international law (jus cogens). The 2007 UN Declaration on the Rights of Indigenous Peoples (the Indigenous Rights Declaration) cannot be considered as jus cogens, mainly because the major settler colonial states with significant indigenous populations, Canada, the US, Australia, and New Zealand, all voted against its adoption. In order for the Declaration to be elevated to jus cogens status, it would need to be shown that it reflects uniform state practices, which it does not. Although New Zealand endorsed the Declaration in 2009 and Canada officially adopted it in 2016, there is still a long way to go in creating a uniform practice. Regardless of its status, even binding international law is very hard to enforce without the state’s willingness to comply. Perhaps more than any other source of law, public international law often equals empty words. For example, Palestinians in the West Bank, East Jerusalem, and the Gaza Strip supposedly have a right to territorial sovereignty, Palestinians within 1948 borders have at least a right for sovereignty within the state (if not to an independent territorial claim given the ethnocentrism of the Israeli legal system), and the Bedouins of the Naqab (Negev) are an indigenous people supposedly entitled to indigenous rights. Still, international law has been helpless in securing these rights to any significant extent, and has not been able to stall the deteriorating status of human rights in Palestine. 269 Alexandra Xanthaki, “Indigenous rights in international law over the last 10 years and future developments” (2009) 10 Melb J Int’l L 27. 270 Ibid. 62 For these reasons, I am less interested in securing a right to gender identity in international law and more interested in a critical reading of the legal instruments international law offers and their function with respect to the structure of international law. Given the extreme discrepancies in policies regarding trans issues around the globe, I do not think a right to gender identity can or should reflect uniform state practices. I do recognize the already impactful effect international legal documents, such as the Yogyakarta principles, have on trans rights around the world. Self-Determination of Peoples Histories and Operation The international legal right to self-determination is closely related to sovereignty and territory, whether it is a right to exercise sovereignty over a territory (external self-determination) or a right to a degree of sovereignty within a given territory (internal self-determination). Sovereignty in the context of international law is understood as states’ authority to govern the territory under their control as well as the human and non-human inhabitants of that territory.271 According to Patrick Macklem, this is the capital whose distribution international law controls. In understanding the role of the international legal right for self-determination, I follow Macklem’s understanding of the right for self-determination of peoples as a legal instrument aimed at “mitigating the adverse effects produced by how international law distributes sovereignty around the globe and authorizes its exercise by sovereign States.”272 Macklem’s broader thesis about human rights in international law looks for their justification not in terms of morality or universal human characteristics, but in terms of the harm produced by the international legal order, specifically by its selective distribution of sovereignty and its histories of legalizing the European colonial endeavour. For Macklem, the two are entangled: “International law began to validate claims of sovereign power, and thereby began to constitute global politics into a legal order, when European States launched ambitious plans of 271 “Sovereignty | Define Sovereignty at Dictionary.com”, online: 63 imperial expansion and began to establish overseas colonies.”273 Thus, Macklem provides two theoretical frameworks that I identify as relevant to a right to self-determined gender identity: first, his thinking of rights beyond the individual unit of the human as a ‘harm reduction’ instrument, and second, his understanding of sovereignty in terms of the distribution of power. Recognition of sovereignty was a tool by which international law recognized colonial claims over indigenous lands and other territories. Indigenous peoples were considered different from the imperial forces in their capacity to exercise sovereignty, thus their lands were seen as empty, terra nullius, as they allegedly had no sovereign power ruling over them.274 Where the empire did not consider the land to be terra nullius, in parts of Africa and Asia for instance, the colonial empire supposedly acquired sovereignty through conquest or cession.275 This means that, at least in principal, where conquest or cession occurred, previous sovereign power was imagined to have resided.276 The distinction in how imperial power claimed their sovereignty, whether through acquisition, conquest or secession, is not entirely clear; different doctrines were implemented in similar situations to serve the changing needs of colonialism.277 For instance, some international legal scholars have suggested that in 1948, at the end of the British mandate over Palestine, a ‘sovereignty vacuum’ existed, making the territory temporarily terra nullius and justifying the 273 Ibid at 138. 274 Ibid at 135. 275 Ibid at 138. 276 Albeit that at least at first, colonial power in North America and Australia also recognized nation to nation relations through the system of treaties. Treaty making was a major tool of land cession that was based on the idea of equal nation-to-nation negotiation (despite the multiple problems and issues that have attended the treaty system). This is important because much of the discussion of indigenous sovereignty, especially in the North American context, is rooted in the centrality of treaties as evidence of early imperial recognition of indigenous sovereignty. However as treaties later were interpreted by colonial powers not as binding documents of international law but domestic contracts (see: James Tully, Public Philosophy in a New Key: Volume 2, Imperialism and Civic Freedom (Cambridge University Press, 2008) at 36 & 213 Google-Books-ID: iTHBUMpn8FoC; James Tully, Public Philosophy in a New Key: Volume 1: Democracy and Civic Freedom, Ideas in Context (Cambridge: Cambridge University Press, 2008) at 227. 277 Tully, supra note 276 at 225–228. 64 Israeli claim for sovereignty.278 Similar claims have been made about the West Bank because it was never annexed by the state of Jordan.279 In effect, by excluding colonized peoples from the distribution of sovereignty and extending colonial sovereignty claims to the colonies that were formed through conquest or cession, the European empires were legalized under international law.280 International law was constructed with the aim of regulating sovereignty, for the sole purpose of organizing the European competition over colonial power.281 Later, the modern right for self-determination addressed the harm caused to those peoples whose sovereignty was taken away by colonial powers, but not to those who were never considered to have had it. The right for self-determination in international law has not always been understood as it is today, as belonging to all peoples,282 but it was always about sovereignty. Prior to World War I, self-determination was considered a right of the state to be “left alone by other states.”283 It reflected a state’s right for territorial integrity, a concept which can be traced to the formation of the nation-state, built on a protection against foreign “interference.” 284 That is, self- determination was interchangeable with the state’s sovereignty. 285 The state’s territory was regarded as including its colonial territories and their inhabitants. 286 Any claim by local population for sovereignty, if it was regarded at all, was seen as illegal by international law 278 Allan Gerson, “Trustee-Occupant: The Legal Status of Israel’s Presence in the West Bank” (1973) 14 Harv Int’l LJ 1 n 124. 279 Ibid at 42. 280 Macklem, supra note 272 at 50. 281 Tully, supra note 276 at 213. 282 International Covenant on Civil and Political Rights, art. 1, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976); International Covenant on Economic, Social, and Cultural Rights, art. 1, opened for signature Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976). 283 Diane F Orentlicher, “Separation Anxiety: International Responses to Ethno-Separatist Claims” (1998) 23 Yale J Int’l L 1–78 at 22. 284 Tully, supra note 276 at 258. 285 Macklem, supra note 272 at 165. 286 Ibid. 65 because it infringed on the state’s right for territorial integrity. In effect, “sovereignty in its latent synonym self-determination […] extended international legal validity to colonialism.”287 This idea of territorial integrity still has the power to define which communities and movements are entitled to self-determination. Thus, territorial integrity has the power to standardize expressions of sovereignty. Territorial integrity enables the creation of a state when those who claim sovereignty can follow the same Eurocentric logic that legalized their colonization in the first place. I will further elaborate on this claim with respect to the difference between internal and external self-determination. In the inter-war period, self-determination developed into a principle according to which “State boundaries should respect self-determining identities of nations.”288 This principle was the main normative drive behind the radical redrawing of the European borders on the ruins of the German and Austro-Hungarian Empire. 289 The League of Nations was to serve as the protector of the territorial integrity of those newly formed states, in the name of self- determination. 290 Self-determination was no longer considered the sole property of existing states, reaffirming the distribution of sovereignty, but was now also understood as enabling the acquisition of sovereignty by other political communities, but only to a certain degree. 291 Colonialism outside of Europe, as well as the colonization of indigenous people within Europe, continued to be legalized, 292 as international law did not deem these populations “to be sufficiently developed to merit sovereign recognition.” 293 This understanding of self- 287 Ibid at 166. 288 Ibid. 289 Ibid at 167. 290 Ibid. 291 Ibid. As Anna Su notes with respect to Self-Determination as formulated by Woodrow Wilson: “His famous rhetoric of self determination had struck a chord with all peoples in the world who was laboring under some kind of oppression. But self-determination was also far from being a self-evident concept, though inspiring a catchphrase it might have been. Wilson himself never thought that each racial, ethnic or language group was entitled to their own nation-states.” (see: Anna Su, “Woodrow Wilson and the origins of the international law of religious freedom” (2013) 15:2 Journal of the History of International Law/Revue d’histoire du droit international 235–267 at 240. 292 Anna Su notes that while the ‘old’ imperial forces wished to continue to former strictly colonial regime of self- determination. The Americans led by Wilson pushed for the creation of the mandate system that was defined through its temporal rule in alleviating uncivilized people to the conditions that will enable them to “create states which are fit and capable of self-determination” (see: Su, supra note 291 at 251.) 293 Macklem, supra note 272 at 167. 66 determination embedded within European supremacy was reaffirmed post-World War II in the 1948 UN charter which continued to legalize colonialism by considering large parts of the world as unfit for state sovereignty.294 A significant shift in self-determination came about in 1960 when international law took a 180-degree turn to declare franchise colonialism illegal, not without the support of settler colonial states who positioned themselves as legal by criminalizing franchise colonialism.295 As a result of efforts from African, Arab, Asian and Latin American nations in the UN,296 the General Assembly adopted the Decolonization Declaration.297 The declaration recognized self- determination as a human right vested in all peoples, stating that, [T]he process of liberation is irresistible and irreversible and that, in order to avoid serious crises, an end must be put to colonialism and all practices of segregation and discrimination associated therewith […][As] all people have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory.298 The Declaration provided for what is now called external self-determination, the right of a group identified as a people to exercise sovereignty over a territory. 299 This form of self- determination is an “instrument that addresses international law’s complicity with colonialism.”300 Roland Burke notes that with the Declaration, “the process of decolonialism itself […] became a human right.”301 The Declaration enabled a redistribution of sovereignty while it was also the product of this process. 294 UN Charter, Chapter XII “International Trusteeship System”, and Chapter XI “Declaration regarding Non-Self- Governing Territories” 295 I thank Dr. Yael Ben-Zvi for this valuable insight. 296 Macklem, supra note 272 at 168. 297 UN General Assembly, “Declaration on the Granting of Independence to Colonial Countries and Peoples” (1960) 14:12 UN Doc A/RES/1514 (XV) 1960. 298 Ibid. 299 Macklem, supra note 272 at 168. 300 Ibid. 301 Roland Burke, Decolonization and the evolution of international human rights (University of Pennsylvania Press, 2011) at 37. 67 The question of what constitutes a “people” remains unclear in the declaration.302 On the one hand, it is stated that the right applies to all who suffer from “alien subjection, domination and exploitation,” meaning it may apply to settler colonial contexts as well as franchise colonial ones. On the other hand, the declaration reaffirms states’ rights to territorial integrity and extends the right to self-determination only to franchise colonies without addressing settler states. This was not an obvious outcome. In the 1950s, there were heated debates in the UN over what self-determination is and who should have access to it. Parties argued whether self- determination is a tool for securing individual and collective democratic rights (rights for protection against state power), or solely a framework aimed at providing national sovereignty (to those territories still legally defined as colonies).303 In practice, self-determination was only accorded to those territories defined as colonies at the time, and only to the extent that these new nations were still expected to constitutionally organize and operate under Western guidance.304 Thus, as will be discussed, Western powers were exempted from domestic obligation toward self-determination, yet continued to hold influence over their former colonies. The debates on whether self-determination protects individuals and collectives from the state, or only protects peoples from colonial rule had a distinctly gendered aspect. In these debates, an interesting alliance arose between two women delegates, who also championed women’s rights:305 the Iraqi delegate Afnan Bedia,306 and the first lady of Costa Rica, Karen 302 “International lawyers virtually all agree that whatever else the term ‘peoples’ may mean, it means the colonial categories of trust territories and non-self-governing territories established by the United Nations Charter.3” (for a detailed discussion on whatever else peoples may mean see: Karen Knop, Diversity and self-determination in international law (Cambridge University Press, 2002) at 51–65. Huey P. Newton of the Black Panthers rejected the plural term peoples as it neither applied to Black people in America as they never had sovereignty and in aspiration for a future in which humanity is united rather than divided: “For most of us it is difficult to imagine our lives without such domination. We have never controlled our economy. We know of one culture, that as slaves. We know of one language, that of the slave master. Our sovereignty was not violated, for we United States Blacks were never a sovereign nation. It is true that we were snatched from African shores. The present fact is that we cannot ask our grandparents to teach us some ‘native’ tongue, or dance or point out our ‘homeland’ on a map. Certainly, we are not citizens of the United States. Our hopes for freedom then lie in the future, a future which may hold a positive elimination of national boundaries and ties; a future of the world, where a human world society may be so structured as to benefit all the earth’s people (not peoples).” (see: Huey P Newton, The Huey P. Newton Reader (Seven Stories Press, 2011) at 235–236.) 303 Burke, supra note 301 at 36. 304 Tully, supra note 276 at 139. 305 Burke, supra note 301 at 50. 68 Olsen Beck Figueres. The duo argued that right should focus also on “self-determination of peoples living under the yoke of a domestic dictatorship.”307 Afnan Bedia “did not consider the right of self-determination as an end in itself,” but rather as an instrument “to safeguard individual liberty more fully.”308 It is more than plausible that both women were attempting in their arguments to secure power against gender subordination within the new nation-states, suggesting that self-determination of peoples has at least the potential to address these issues. Vrushali Patil notes that racial and cultural hierarchies of colonial regimes relied on a series of gender practices that focused mainly on masculinity.309 In the UN discussion of self- determination, European colonial powers and their allies deployed discourses of paternalistic masculinity presenting themselves as guardians of uncivilized others.310 Anti-colonial discourses were also dominated by masculinity, including calls for a brotherhood of nations,311 stressing the need for decolonization to fight the emasculation embedded in foreign domination. 312 Ultimately, these discursive dynamics, alongside the campaign for protecting women’s rights within the new nations, were recruited in the service of the transformation from formal to informal imperialism, from direct rule to an international system of hegemonic and subaltern states, as will later be discussed. The gendered debates can also explain the contradictory nature of the decolonization declaration, which bestows the right for self-determination on all peoples while applying it only to recognized colonies. The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United 306 Who is also credited with the inclusion of section 3 of the International Convent on Civil and Political Rights, which guarantees “the equal right of men and women” Ibid at 118. 307 Ibid at 49. 308 Ibid at 50. 309 Vrushali Patil, “Contending masculinities: The gendered (re) negotiation of colonial hierarchy in the United Nations debates on decolonization” (2009) 38:2 Theory and Society 195–215 at 197. 310 Ibid at 206. 311 Ibid at 209. 312 Ibid at 208. 69 Nations313 (the Territorial Declaration) further delineated self-determination. It affirms the rights of States for territorial integrity, blocking the way for internal claims for self-determination, and declaring that a colony is considered a separate territory. The Territorial Declaration created the “blue water doctrine,”314 which meant that only peoples who inhabit a territory that is neatly separated (usually by water) from the colonizer315 can exercise self-determination, which has come to be known as ‘external self-determination.’ The Territorial Declaration also stated again that self-determination is a right of all peoples suffering from “alien subjection, domination and exploitation,” which can theoretically address many situations. The Territorial Declaration leaves open the option of internal self- determination by limiting the principle of territorial integrity only to “independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”316 Seemingly, a people located within a state that does not follow these criteria could also demand to territorially separate themselves. Still, in effect, even post 1970, external self-determination seems to only bestow sovereignty on political units that already look like traditionally recognized sovereign States and reside in territories that were already recognized as separate units to begin with by those traditional states, i.e., colonial powers. 317 That is, the connection between a people and a territory remains within the European imagination of the world and its constitutional frameworks. In any case, this right does not address the sovereign power of settler states that 313 UN General Assembly, “Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations” (1970) 14:12 UN Doc A/RES/2625 (XXV) 1970. 314 Macklem, supra note 272 at 141. 315 Think of the Maghreb and Europe, for example. 316 Assembly, supra note 313. 317 Tully, supra note 276 at 215. 70 were founded on indigenous peoples’ territories,318 namely on Turtle Island and other parts of the world that were annexed to the commonwealth.319 Recently, international law has started reconsidering self-determination in relative terms. The right for self-determination is “migrating from the international law to the domestic realm.”320 This form of self-determination is called internal self-determination and refers to constitutional-level interventions aimed at protecting a people’s “identity, culture, territory, and self-governing capacity,” but falls short of parting from the state and forming a separate sovereign unit. 321 This form of self-determination provides possibilities for legal pluralism within a given constitutional order. It does not jeopardize the territorial integrity of the state or its overarching sovereignty. Internal self-determination does redistribute part of the state’s sovereignty, insofar as it gives away some of the power to govern over a specific territory or group or issue, from one “people” to another. However, following James Tully, this limited redistribution of sovereignty can also be shown to facilitate ongoing imperial powers and to secure the settler colonial state power. As Taiaiake Alfred writes, “sovereignty is an exclusionary concept rooted in an adversarial and coercive Western notion of power.”322 Self-Identification as Redistribution of Sovereignty Self-identification laws and policies can also be thought as an instrument for the redistribution of sovereign power. The recorded data on the public registrar at birth becomes a part of one’s legal entity throughout their life and even after they pass away. This status determines who people are (male or female) and what they can be (women or men). In terms of distribution of sovereignty, self-identification can take away from the state’s power of classification and give it to gender nonconforming people (as gender normative people, like the European nation, have already been granted this right in the initial act of birth assignment). In fact, this is what current formulations of a right to gender identity are already doing, with some success. 318 Ibid at 211. 319 Macklem, supra note 272 at 136. 320 Ibid at 176. 321 Ibid. 322 Gerald R Alfred & Taiaiake Alfred, Peace, power, righteousness: An indigenous manifesto (Oxford University Press, USA, 2009) at 59. 71 The current formulation of what is known as gender self-determination allows individuals to make decisions over their “gender identity,” and forces the state to comply with that self- identification. Within the Argentinean law, this obligation of the state is quite extensive as it also includes state funding for bodily modifications, and even perhaps, in the near future, reparations for people who have been pathologized for their gender nonconformity. 323 Yet, all this is happening within the state logic of the sexed body, as if M/F reflects stable categories and not ongoing discursive-material practices. It is exactly this alleged stability that justifies thinking of gender identity in terms of a right, constituting it as self-evident (evident only to the self) and unalienable, i.e., the stuff human rights are made of.324 A right to gender identity is also limited by a principle of “territorial integrity” with respect to the state sovereignty over the sexed body, which includes its power to constitute bodies as different and assign them a differentiated legal status. As argued, current formulations of a right to gender identity do not challenge and even reaffirm the truth-making power of the ritual of birth assignment. These formulations do not sufficiently challenge the justifications for birth assignment to begin with, nor do they challenge the stability of the sexed body as a figment of collective imagination. This is similar to external self-determination and the blue water doctrine. The blue water doctrine allows international law to enforce the logic of sameness to create more nation-states modeled on their European predecessors, who are always already failing at being European and thus pushed to subaltern positions within the global order. Under the logic of self-determination, the distribution of sovereign power around the globe is generally unchallenged. Yet within this accepted distribution, one must account also for the historical legalization of colonialism, which unjustly took away the sovereignty of certain peoples. External self-determination amends this harm by redistributing sovereign power to those peoples who were wronged, allowing them to form their own independent states. It is this same process we can see in the recognition of a right to self-determined gender identity, which comes to 323 “Bill Asks Reparations for Violence Against Argentina’s Trans”, online: 72 amend an otherwise unquestioned distribution of sovereignty, allowing individuals to self-assert their gender identity. However, both in the case of nations and of gender, sex and the nation-state remain unchallenged. The redistribution does not challenge the legal regime of sovereign States that was created to enable colonialism. Rather, external self-determination creates more of the same units and affirms the apparatus as a whole. This is exactly what the principal of territorial integrity does, keeping the apparatus of nation-states intact by self-determination. Self-determination does not account for colonialism as an ongoing apparatus. In what follows, I review the work of James Tully, addressing these limitations of self-determination. Through Tully’s critique, I will show how self-identification, like decolonization (as Tully defines it), can be seen a double-edged sword exactly because both provide for and rely on universalism and invisibilizing assumptions on autonomy. Self-Determination and Continuing Imperial Rule James Tully provides another narrative for the function of the right for self-determination of peoples, which situates it within an ongoing imperial structure, rather than as a break from it. Tully agrees with Macklem that the shift from legality to illegality of colonialism in the mid-20th century represents formal decolonization. 325 However, Tully’s analysis suggests that the maldistribution of sovereign power has survived and even intensified post decolonization.326 Tully argues that the “global relationships of oppression of inequality, dependency, domination, exploitation and environmental damage” 327 which govern both the conduct of people and of peoples are imperial relationships. Imperial relationships were built up during what Tully refers to as “the age of formal Western imperialism,”328 and have been sustained and intensified in our current time through what he refers to as “informal imperialism.”329 Tully’s analysis suggests that the right for self-determination facilitated the shift from formal to informal 325 Tully, supra note 276 at 127. 326 Ibid. 327 Ibid. 328 Ibid. 329 Ibid. 73 imperialism through constricting and universalizing presumptions ingrained into the concept of sovereignty. Sovereignty is the state’s right for privacy and autonomy, which, much like the individual’s right, presupposes the existence of this very autonomy. Or, as Aaron Mills pointedly describes: Sovereignty is to nations as autonomy is to persons. Persons and nations are, respectively, individual and collective forms of the same kind of self- determining subjectivity. Nationhood is the word for an autonomous conception of peoples, which accounts for its emphases on boundary and consent: the liberal form of subjectivity, now expressed as a collective subject.330 Tully similarly suggests that self-determination of peoples is the collective analogue of the individual right for private autonomy and is limited in much the same way. A right to privacy and autonomy presupposes a specific subjectivity of their subject, who is determined only by their self-legislating and is able to “see him- or herself and others from the ‘universal’ standpoint of abstraction and freedom from relationships with others.”331 According to Tully, under a modern civil liberty regime, “citizens are ‘at liberty’ to engage in these activities if they choose (an opportunity status) […] and are protected by the law from ‘interference.’” 332 Sovereignty is the protection from “interference” offered by international law. This autonomous liberal subject reaches agreements with others they are abstracted from on the basic laws “they will subject themselves to,”333 i.e., the social contract. Nations are imagined to be able to perform the same abstraction from inherited relationships with 330 Aaron James Mills, Miinigowiziwin: all that has been given for living well together: one vision of Anishinaabe constitutionalism (PhD Thesis, 2019) [unpublished] at 220–221. 331 Tully, supra note 276 at 251. 332 Ibid at 250. 333 Ibid at 251. 74 other nations, which allow them to reach international legal agreements. Thus, “in obeying the law [of contracts], they [individuals and peoples] obey their own will and remain at liberty.” 334 The presumption of autonomy situates obeying the law as the institutional precondition for becoming the very subject that is said to be determined only by that subject’s legislative will. At the same time, the assumption of sovereignty overshadows the power relations that constitute peoples and individuals, presenting them as ‘free.’ 335 More importantly, this freedom is primarily the freedom of global economy to enter into contractual trade relations. This ‘freedom’ is only presumed, because obeying it is a precondition for having the power of self- determination. Self-determination of peoples is thus predicated on obeying the already existing international legal order, the same order built on the image of the European state and in service of its colonial interest. Sovereignty is the capital which the nation-state uses toward accumulation of more and more capital.336 But insofar as these new nation-states can never be European, they are pushed to a subaltern position within global political and economic order.337 They become ‘failed’ states whose regimes often develop growing reliance on military power to hold onto sovereignty against their own people, “all while freeing the state to participate in the 334 Ibid. 335 Ibid. 336 After formal decolonization, informal imperialism continued through the imposition, often through theft of military invasion, of specific public law and political arrangements, promoted through language of civilization, democracy and progress. These legal and political arrangements, were ushered in as Western support and guidance or military threats and military intervention, imposing an order which: “opens the resources, labour and markets of the imperialised country to free trade dominated by the great powers; and, secondly, subjecting this legal and political order in turn to regimes of public and private international laws, again constructed and dominated by the great powers.” (see: Ibid at 133–134.). Another important thing to consider in this context is that these new state only received power over what was left of their natural resources after hundreds of years of European colonialism as Macklem describes “before colonies participated in the distribution of sovereignty, international law vested the legal power to exploit their natural resources in colonial powers, and when colonies became subjects in the distribution, international law vested them with power only over those resources that remained at the date that they achieved sovereign statehood. This temporal dimension to the acquisition of sovereignty in international law has the effect of privileging States with a history of colonizing others over States with a history of being colonized, thereby contributing to the disparity of resources that exists between developed and developing States” (see: Macklem, supra note 272 at 49.) 337 Tully, supra note 276 at 139–140. 75 world of late capitalist culture.”338 In this way, formal imperialism transitions into to informal imperialism. Tully’s critique of self-determination in international law suggests, as Macklem argues, that the problem lies in the distribution of sovereignty. While Macklem shows that self- determination redistributes sovereignty, Tully maintains that the problem lies in distribution through sovereignty. The issue at hand is not how the world is divided into presumed autonomous units called states. Rather, the issue is the very act of division that hinders equal power relations. The continuous presumption of autonomous sovereign powers constitutes international legal subjects (and non-subjects) and prevents the production of other kinds of subjects and attachments. Similarly, the problem with sex classification is not how they are assigned and reassigned, but with the individuation they entail through differentiation and signification, a process for which formal gender determination fails to account. The right to self-determined gender identity is shaped by the histories of collective struggle for decolonization within international law. Understanding the inherent limitations of the idea of sovereignty suggests that the redistribution of sovereignty is inadequate in addressing structural harm. Seeing how self-determination allows for the continuation of imperialism in the age of decolonization through constitutional orders susceptible to market domination, demonstrates the dangers of the privatization promoted by an individual right to gender identity. A Critique of A Right to Gender Identity The Yogyakarta principles set the stage for the growing inter-jurisdiction recognition of a right to gender identity, to self-determination in formal terms, as they constitute gender identity as self-evident, thus justifying its legal formulation as a human right.339 By transforming gender identity into a right based in the immutability of an internal and individual feeling, laws and policies relegate gender to the realm of the private. A public status is granted to the individual 338 Dina Georgis, The better story: Queer affects from the Middle East (Suny Press, 2013) at 138. 339 Lynn Hunt describe how human rights became self-evident and how such claims rely on emotional appeal and assumptions about individual autonomy (see: Hunt, supra note 204 at 27–29. 76 through this privatization, and the right itself gains the characteristics of a human right.340 Yet, much like the ways in which self-determination of peoples produces ‘failed states,’ human rights, as Ratna Kapur argues, “reify the concept of a ‘civilized’ community and safeguard various populations of ‘failed subjects.’”341 The gender self-determined subject is a failed subject, as self-identification constitutes them as inherently different by suggesting that only they have a ‘gender identity,’ while normative subjects continue to be sheltered by birth assignment of sex, as will be explored. There are two shifts afforded by the formulation of a human right to gender identity. The first, which has been described in the previous chapter, is a shift from one wrong body narrative to another, where in the former, reclassification is justified through an alignment of the body to a pathologized identity, and in the latter, reclassification is justified as a reflection of innate gender identity. The shift from one version of the wrong body to the other, much like the shift from formal to informal imperial rule, allows the continuous deployment of power over bodies and selves conscripted into a neo-liberal property regime. The second shift entails constituting innate gender identity as a property of the self. As private property, gender identity becomes a thing not to be interfered with, a thing to be left out of the reach of the regulatory force of the state, with a concurrent right to act based upon that identity, according to the individual’s own sovereign will.342 Thus, the ‘freedom’ afforded by a right to gender identity suggests that one’s position within the legal and economic matrix of gender is a result of their autonomous choice (understood to reflect innate dispositions). Coherence and stability in this context are used to constitute gender identity as something that is different from a choice: an individualistic entitlement to sovereignty. Gender identity is understood as stemming solely from the individualized self, as if one need only to be left alone in a quiet room with no outside interference and look deeply into their soul to find this elusive fixed entity, their gender identity. The paradox is a demand for a public (i.e., state) recognition of a private internal and individual feeling. Looking through this paradox 340 Ibid. 341 Ratna Kapur, Gender, alterity and human rights: Freedom in a fishbowl (Edward Elgar Publishing, 2018) at 249. 342 Stryker & Sullivan, supra note 50 at 59. 77 at the right to gender identity reveals that reclassification through self-identification is more about retaining the state’s power to differentiate than about a confirmation of private status. Simply, in return to granting trans people a right to self-determined gender identity, to sovereignty over their individual sex classification, the administrative state receives further sovereignty over birth assignment of sex, over the collective classification of sex. While the applicant is entitled to recognition of their subjective ‘gender identity,’ this recognition is made regardless of, and perhaps in spite of, the objectivity of the ‘sexed body.’ Unlike approaches which demand modifying the sexed body according to one’s gender identity, this is not a requirement here. Sex is perceived as an extrajudicial fact of the body, and gender identity as an essential trait of the self. As an origin moment of legal sex, the administrative act of birth assignment is not challenged under this model, but rather a recognition of the private truth of gender identity is granted through a public act of declaration, of self-identification, i.e., by ‘coming out.’ Coming Out Eve Sedgwick uses the term “open secret”343 to describe the tension in the lives of gays and lesbians surrounding the act of ‘coming out.’ 344 In this context, Sedgwick explores the connection between the binary pairs, secrecy/disclosure, homosexual/heterosexual, and public/private, questioning these differentiations. As long as one did not publicly declare, “I am gay,” his sexuality is considered his private business. Still, only homosexuality is considered private, while heterosexuality or sexual normativity is always public: it is transparent, one is not required to ‘come out’ as heterosexual.345 Through the social institution of ‘coming out,’ difference itself is constructed as residing in the private realm. At the same time, those who enjoy the protection afforded by sameness have their voices, needs, and desires always already present in public, as the white noise of public life, as the conditions of possibilities of public space. The social recognition of those who practice 343 Eve Kosofsky Sedgwick, Epistemology of the closet (Berkeley: University of California Press, 1990) at 145. 344 Used here in its colloquial meaning, to publicly identify as non-heterosexual. 345 Excluding perhaps queer spaces or contexts, when one is assumed to belong to a minority sexual group by the nature of participating in the space or activity. 78 non-normative sexuality is dependent upon marking the private self as belonging to a certain category, at the same time that the need to belong to said category demarcates the binary line between belonging and otherness, difference and sameness.346 In the context of gender expectations, the binary rules of the social game are not marked merely in lived experiences, but are drawn in the law itself through the allocation of the legal categories M or F and their frequent usage in all sorts of public and private engagements and spaces. As explored in the previous chapter, people who have incongruent identification documents are excluded from important life prospects, access to healthcare, education, jobs, and public spaces, and are subject to hyper surveillance and criminalization. This frequent use of sex classification allows for a continuous enforcement of the congruence between the legal status and the gender expectations associated with it. Following Sedgwick, I suggest that in the context of self-identification, the binary pairs trans/non-trans and sex classification/gender identity correspond to the pairs secrecy/disclosure, public/private as well as to objectivity/subjectivity. As noted, within the right to self-identify, sex is seen as an objective public criterion for the demarcation of bodies, and gender identity is seen as a private property of the subjective self. In effect, these sets of binary divisions also mark the line between the categories trans and non-trans. De facto, only gender non-conforming individuals are required to perform the public act of self-identification, which is a public disclosure of subjective identity, an act of ‘coming out.’ Gender normative people are not required to provide a public announcement of their gender identity in order to receive legal recognition, it is afforded to them in the administrative act of assigning sex at birth. Transness is constructed as private through the act of self-identification. Simultaneously, gender normativity, the congruence with gender expectation, is constructed as public truth through birth assignment of sex. A right to self-determined gender identity empowers the rational subject as a sovereign being that can claim their rights for recognition, but this claim is itself anchored in social rules or 346 Sedgwick, supra note 343 at 73. 79 natural laws and is dependent on consenting to state identity regimes. Therefore, the individual is seemingly a free being because they are the sovereign of their inner self, of their gender identity. But they are nevertheless completely subjected to the laws, to the administrative act of assigning legal sex designations at birth, that rule the outside world.347 Thus, the freedom offered to individuals by self-identification justifies the public compliance with gender expectations embedded in legal classification of sex. In its current formulation, self-attested gender identity can be viewed as a “repackaging of state domination as the market freedom of individuals.”348 Brenda Cossman described this dynamic in the broader context of sexual citizenship: [W]ithin the last few decades, the once private sphere of intimate life has transformed into more expressly public and political concerns. One-time sexual outlaws - from sexually single women, to gay men and lesbians, to porn stars - have demanded inclusion and begun to revise and expand the meaning of citizenship by claiming their rights and/or their political participation. In so doing, they have contributed to the politicization of the once private sphere, claiming that issues once relegated to this sphere are themselves the proper subject of political contestation.349 Claiming a place for their private intimate life in public, the once sexual deviants also participate in the emergence of neo-liberal citizenship with a focus on “self-disciplining or self- governing of citizenship.” In the neo-liberal version of privatized public sphere, “Citizenship becomes a practice a ‘self inspection and self regulation through choice,’ and a practice of ‘responsibilization,’ of becoming a responsible risk manager for one’s self and one’s family.”350 This account of sexual citizenship can contextualize the paradox of a right to self-identified 347 Michel Foucault, “Revolutionary action:’Until now’” (1977) 221 Language, counter-memory, practice at 222. 348 Wendy Brown, “Rights and Identity in Late Modernity: Revisiting the Jewish Question” (1995) Identities, Politics, and Rights 85–130 at 118. Wendy Brown does specifically address the question of sex reclassification but more broadly the allocation of rights in the neo-capitalist order of late modernity. 349 Brenda Cossman, “Sexual citizens: Freedom, vibrators, and belonging” (2009) Gender equality: Dimensions of women’s equal citizenship 289–306 at 291. 350 Ibid at 292. 80 gender in which a public status is granted through privatization. Gender identity is fashioned as an instrument of self-governance in relation to gender expectations. The shift toward responsibilization is especially harmful in the context of sex classification. In this context, accounting for the ways in which certain government policies have detrimental impacts on the life-prospects of certain social groups is pivotal, because sex is legally classified at birth and becomes an indispensable part of one’s legal entity. The state both assigns sex designations and regulates their usage by private and public actors, and still the most progressive paradigm for sex reclassification suggests that the state has nothing to do with the direct, indirect, and structural harm caused by the differentiated legal status F/M. By only providing an after the fact remedy to birth assignment of sex, self-identification further makes transparent the allocation of gender expectations at birth, and their ongoing enforcement. The Public/Private Line By constituting a right for recognition of individual gender identity, self-identification laws and policies redraw the private-public line along the contours of the trans body, distinguishing the private gender identity of the heart from the public status of the sexed body. Gender identity is 81 formulated as an innate trait of the self to be protected from state interventions, while at the same time demanding state recognition within the state sanctioned category of sex. Thus, self identification runs the risk of further fortifying the public status of sex classification as relating to objective biological criteria that can justify differential treatment. In the separation of sex and gender, gender identity becomes a pacifier for sex-based substantive inequality, as will be elaborated in the next chapter. Gender identity as a legal category for recognition and protection of trans people is a very sharp double-edged sword. This sword is not only aimed at trans populations, but has a greater impact on questions of gender and equality. The growing legal recognition of a right to individualized gender identity, evident in the global shift toward self-identification laws and policies and the broader protection of trans rights for autonomy, pushes back against the idea that sex has a principally social, cultural, and contingent meaning in legal application. 351 To paraphrase Butler, legal sex has been gender identity all along.352 The separation of gender identity from sex suggests that the very need to demarcate the status of men and women presents sex as natural.353 The detrimental effects of birth assignment on the life prospects of trans populations are clearly evident. The act of sex classification itself poses challenges in the broader context of sex- based discrimination and inequality at large, for both trans and non-trans populations, as the next chapter will explore. The issue at hand is not the sovereignty of certain bodies to self-determine their sex classification, but that the assumption of sovereignty or autonomy makes invisible the power relations that constitute individuals. Thus, self-identification of gender identity makes the 351 Catharine A MacKinnon, Sex equality, University casebook series (New York: Foundation Press, 2001) at 211. 352 Butler, supra note 150 at 14. As Ruth Bader Ginsburg famously admitted: in her attempt to get the supreme court to protect against sex-based classification she started using the word gender instead of sex (see: JULIA LONGORIA, MORE PERFECT: SEX APPEAL, https://www.wnycstudios.org/story/more-perfect-sex-appeal (last visited Feb 8, 2019 JULIA LONGORIA, MORE PERFECT: SEX APPEAL, https://www.wnycstudios.org/story/more- perfect-sex-appeal (last visited Feb 8, 2019). Catharine MacKinnon also write about the strategic use of the word gender to assert the position that sex inequality is social, cultural and political in origin rather than biological (see: MacKinnon, supra note 351 at 211–215.) 353 Butler, supra note 150 at 9–10. 82 apparatus that traps subjects in bodies seem like a reflection of liberty while transposing trans embodiments into manageable categories. Looking back at international law, it becomes clear that universalized sovereignty secures the free movement of power in the guise of liberty. The individualistic right for gender identity allows the state to disengage from its responsibility for sex-based classifications. Instead of trying to expand the individual sovereignty of gender identity, we should turn our efforts to better account for the law’s power to demarcate groups and allocate rights, duties, and life prospects along gendered lines. Learning from the self-determination of peoples, the problem seems to be not how we redistribute sovereignty over sex classification, but the very regime that constitutes the individual legal subject through sex classification. The next chapter will turn to look at the apparatus that constitutes sex classification to begin with, birth assignment of sex. Chapter 3 From the Penis to the Phallus to the M Introduction The following chapter will examine the administrative process of assigning sex at birth. The previous chapters showed how current sex reclassification policies cannot address either the pivotal role of birth assignment of sex in the systemic exclusions of trans and gender nonconforming people, or the broader regulation of gender. Reclassification policies allow for after the fact exceptions in the otherwise unchallenged regimes of allocating differentiated legal status, M/F, based on perception of one’s visible genitals at birth. In this process, a viscerally perceived difference leads to the anchoring of M/F, which consequently assumes the status of a privileged signifier of the immutable truth of the body. Reclassification does not hold the law accountable for this making of gender in the very act of birth assignment. The following chapter will argue that birth assignment is not descriptive but constitutive of difference, and that this difference is produced in the repetitive act of assigning sex at birth. At the onset, I will consider how legally separating gender, gender identity, and sex affects the law’s ability to identify harm and exclusion. I will argue that both those who think legal sex is immutable and those who argue that gender identity is a right rooted in a conscious choice fail to account for the law’s power to differentiate. To unpack the law’s power to differentiate, I will turn a critical gaze to the process of birth assignment, understanding it as a site for producing difference and signification from which the sexed body, as a figment of collective imagination, arises. Gender identity, as a psychic experience of congruence or incongruence to the body, cannot be understood separately from the production of difference and its signification. The first section of this chapter explores the contradiction between sex equality and the existence of the categories F/M, revealing a fundamental failure within the liberal concept of equality regarding how difference is produced. I argue that within the law, sex is a social category and that gender identity has significant corporal elements. F/M classifications are the architecture of the separate but not equal regime. Following Dean Spade’s call that “gender inequality be considered in the realm of administration of gender categories and the production 83 84 of gendered populations,”354 the second part of this chapter will turn to scrutinizing the legal process of assigning sex at birth. I will situate birth assignment within the historical development of the administrative state as a biopolitical technology of governance, which traps people into bodies through individuation. The third part of this chapter will offer a psychoanalytic and performative reading of the ritual of assigning sex at birth as a major site of the production of difference. Through this repetitive ritual, which lacks independent meaning outside the desire for administrative stability, the state constitutes itself as a space where coherent and stable sexed bodies exist. To conclude, I return to the legal trans subject, arguing that while all legal subjects are trapped in bodies, some are trapped in a wrong body. Equality is a Problem The M≠F Issue Failing to scrutinize sex classification and instead focusing on reclassification through self- identification might be contradictory to understanding the legal category of sex in its principally social meaning.355 If gender identity relates to socially constructed roles, norms, and identities, then sex is left with encoding assumed biological differences in sex characteristics.356 Thus, gender identity as a legal concept absurdly naturalizes the concept of sex.357 Non-trans people’s gender identity is assumed to be already recognized and protected by birth assigned sex classifications. Seemingly, only gender nonconforming people need access to a right for gender identity which allows them to reclassify their sex. Within this logic, the legal separation of sex and gender identity leads to detrimental effects on access to equality. These effects go well 354 Spade, supra note 34 at 738. 355 MacKinnon, supra note 351 at 211. 356 Holzer, “Sexually Dimorphic Bodies”, supra note 43 at 93. 357 Talia Mea Bettcher made similar observation about the idea of innate gender identity outside of law in relation to feminist thought: “Many feminists have endorsed the view that the term “woman” names a social group, status, or role. Simone de Beauvoir famously wrote, ‘One is not born, but rather becomes, a woman. No biological, psycho- logical, economic fate determines the figure that the human female presents in society; it is civilization as a whole that produces this creature’ (1952, 201). If Beauvoir is right, gender identity can’t be innate. Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 387. 85 beyond trans populations to affect broader sex-based legal debates and expose the law’s power to produce difference through differentiation of subjects. On terms similar to the 2020 Hungarian law prohibiting sex reclassification, in late 2018, the Trump administration attempted, both in the domestic 358 and international realm, 359 to conclusively define the category of sex on immutable terms.360 The administration sought to define sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth,” adding that “the sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.” 361 Narrowing the category of sex came as a response to the previous administration’s work to benefit trans people by broadening the category to recognize gender identity as a matter of conscious choice, rather than a fact determined at birth.362 Limiting the definition of sex to immutable traits harms more than just trans populations, it also further entrenches the legal structures that sustain the gendered distribution of resources and life chances. Granting immutability to sex supports the position that men and women are stable categories differentiated by inherent and essential characteristics and abilities. By attempting to define trans people out of legal protections,363 the Trump administration in the US and the Orban government in Hungary might also be defining women out of the right for equal treatment. The rickety concept of equal treatment rests on the ability to discern between ‘relevant’ and ‘irrelevant’ difference, and an assumption of certain universal sameness among humans.364 358 Green, Benner & Pear, supra note 129. 359 Julian Borger, “Trump administration wants to remove ‘gender’ from UN human rights documents”, The Guardian (25 October 2018), online: 86 It allows those marked F to claim that biological differences in sexed bodies are irrelevant in the context of equal participation in public and economic life. Using sex as a protected category in the context of equal treatment thus suggests a principally social meaning to sex. Indeed, in an effort to secure protection against discrimination, feminist jurists have tactically used the term gender as a synonym for sex.365 If sex merely denotes immutable traits, the equality argument becomes much thinner. Even so, there is a resurrection of feminist scholarly demands for the separation of sex and gender in administrative terms, namely as an answer to the ‘threat’ to sex as a protected category posed by trans demands for recognition of gender identity.366 As I argued in the last chapter, demands for self-identification also reinforce the segregation of gender identity from sex. The claim that sex is immutable is the mirror image of the claim that gender identity is a stable conscious choice. Both claims fail to provide an adequate explanation for the existence of the separated legal categories M/F. A critical reading into the category of sex in relation to birth assignments shows that in legal application, sex has always been gender, i.e., a social category, and gender has always been corporal, i.e., a subject position constituted and expressed through the body. If ‘biological’ differences are irrelevant in legal terms, what justifies the assignment of sex at birth? If sex through antidiscrimination law: A critcal review of supreme court doctrine” (1977) 62 Minn L Rev 1049.) From a feminist perspective, this critique has been supplemented by the concept of intersectionality, exposing that antidiscrimination law’s reliance on categories invisiblizes the realities of those subjected to multiple oppressions and exclusion, namely black women (see: Kimberle Crenshaw, “Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics” (1989) U Chi Legal F 139.) For an elaboration of the critique of formal equality laws in the context of trans and gender nonconforming communities, see: Spade, supra note 26 at 42–45. However, this section does not attempt to provide an analysis of equality claims but rather provides a critique of sex equality claims that is limited to the argument that sex inequality, even in its most liberal forms, is circumscribed by the very existence of the differentiated legal status, M/F. 365 Most notable is Justice Ruth Bader Ginsburg’s decision to replace the word sex with the word gender in the legal briefings in order to avoid the provocative connotation of sex (see: Catherine Crocker, “Ginsburg Explains Origin of Sex, Gender : Justice: Supreme Court’s newest member speaks at her old law school and brings down the house with her history lesson about fighting bias.”, Los Angeles Times (21 November 1993), online: 87 classification is based on conscious choice, how can it be determined at birth? Put differently, sex classification, while most disadvantageous to those whose identities or experiences are incongruent with binary gender expectations, contributes to a broader systemic social disadvantage. Sex classification as a scheme suggests that the legal differentiation of those assigned M and those assigned F reflects relevant, essential, inherent, and incontrovertible difference. The Liberal Fail Considering sex classifications schemes from a trans perspective shows that these schemes fail even a liberal, equality based, scrutiny. Sex classification schemes turn difference that is highly visible and irrelevant in social terms, i.e., external features of the body, into pre-legal differentiations regarding the characteristics and abilities of men and women. One tends to think of sex classifications as merely descriptive, as a tool for objective classification. De facto, the administrative act of assigning sex at birth is productive: it turns disguisable and fragmented bodily features into binary legal status. At its best, in a liberal utopian society in which equality between men and women has been reached (as much as a utopian society would even need men and women), it creates a separate but equal regime. But the act of separation constitutes sex classification as a tool for “the systemic relegation of an entire group of people to a condition of inferiority.”367 It is beyond the scope of this chapter to empirically assess the subjective impact of sex classification on non-trans individuals. In any case, there are fewer than a handful of legal systems that do not allocate sex at birth.368 There is qualitative and quantitative evidence on the myriad forms of direct, indirect, and structural exclusion faced by trans people who do not have access to proper identification documents.369 The harms suffered by trans people in relation to their sex classification is an indication of the levels of policing and enforcement that sex classification allows for in general. 367 Catharine A MacKinnon, Feminism unmodified: discourses on life and law (Cambridge, Mass: Harvard University Press, 1987) at 41. 368 See: PAISLEY CURRAH, SEX IS AS SEX DOES: TRANSGENDER IDENTITY AND THE POLITICS OF CLASSIFICATION (forthcoming, 2019) 369 See chapter 1 section titled Proper Identification Document. 88 Sex classification constructs who people can and cannot be, at the very least, in terms of identifying or expressing themselves according to femininity and masculinity standards, contributing to imbalanced power relations between men and women. Through the enforcement of gender expectations, sex classifications “work by restating the image, therefore the reality, of human possibilities by minimizing actual potential variety among individuals […] enforcing uniformity by punishing diversity, and by presenting the consequences of social divisions as if they were fixed in nature.”370 The harm lies in the act of differentiating between the groups. 371 The differentiation afforded by birth assignment of sex creates the conditions for disadvantages that “operates along standard and predictable lines in multiple and important spheres of life.” 372 In attaching a differentiated legal status to individuals, the legal entity of those assigned M and those assigned F, the state purposefully estimates that there is a “relevant difference” between them in relation to their legal entities. Yet, in the act of differentiating, the state also constitutes this difference itself. In the current social realities of gender inequality and mandated binaries, sex classification relays the message that those assigned F are inferior to those assigned M. Separating people on the basis of membership in a salient social group harms dignity if it confers the message that those belonging to a certain group are unequal to others, even if both groups are treated the same. 373 In the context of birth assignment, this harm is all the more evident, as sex classifications provide the legal structure for innumerable forms of sex-based segregation and differential treatment (evident again in the many uses of sex classifications in everyday life). In certain scenarios, discrimination occurs when legal structures turn difference that is “both highly visible and irrelevant […] into systemic social disadvantages.”374 In the context of gender-based discrimination, this difference is often imagined as an inherent and essential 370 MacKinnon, supra note 351 at 156. 371 Andrew Altman, “Discrimination” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy, winter 2016 ed (Metaphysics Research Lab, Stanford University, 2016) , s 4.2. 372 Cass R Sunstein, “The anticaste principle” (1994) 92:8 Michigan Law Review 2410–2455 at 2429. 373 Barak Medina, “The Right to Equality in the Israeli Supreme Court” 17 Mishpat U’Mimshal 63–146 at 89.[Hebrew]. 374 Sunstein, supra note 372 at 2429. 89 difference between males and females, although it is often cultural and contingent.375 To analyze how legal rules can make it sensible, for example, “for women to trade services for security and for men to renounce violence in exchange for care,” Duncan Kennedy writes, we need to account for “how particular male and female subjects are the products of as well as the actors in the bargaining drama.”376 Concurrently, by zooming in (or out) on the actual administrative act of sex assignment at birth, another structure is discovered, one that turns cultural and contingent differentiations into inherent and essential difference. I am not suggesting that simply ending sex classification would miraculously unmake the gendered matrix of unequal distribution; rather, I am suggesting that we cannot understand this matrix without accounting for the legal institution of birth assignment of sex as “loci of power/knowledge in their own right.”377 The critical analysis to follow will go in and out of Foucauldian thought, by reading discipline as an element of legal power and considering the constitution of administrative subjectivity. The Biological Fail Birth assignment of sex relies only on one factor, external genitals, the only visible difference between newborns’ bodies, a criterion that is scientifically insufficient to conclusively determine biological sex.378 More pointedly, the science of biology currently admits that none of the known sex characteristics, including genitals, can predict a specific gender identity.379 That is, the belief that birth assignment reflects objective criteria of personhood cannot be justified by scientific biological inquiry. The power of birth assignment does not lie in its ability to predict affiliation 375 Deborah L Rhode, Justice and gender (Harvard University Press, 1991) at 81–82. 376 Duncan Kennedy, “The stakes of law, or Hale and Foucault” (1991) 15 Legal Stud F 327 at 362. 377 Ibid at 357. 378 There is a growing agreement within the science of biology that sex should be thought of as a spectrum rather than a binary. Moreover, even in more conservative parts of the biological debate it is accepted that binary sex categorization is determined by at least five primary characteristics: chromosomes (including XX, XY), gonads (testes or ovaries), sex hormones (including testosterone and estrogen), internal genitalia (including uterus and prostate) and external genitalia (including visible penis or vulva). In addition, there are secondary sex characteristics which include breasts, menstrual cycle and relatively more body fat for females, and relatively more facial and body hair for males. On top of all these characteristics, in the past 30 years research has underscored the central role of about 25 genes, including the SRY gene, in sexual development. Claire Ainsworth, “Sex redefined” (2015) 518:7539 Nature News 288 at 290. 379 Maayan Sudai, “Toward a Functionalist Analysis of ‘Sex’ in Federal Antidiscrimination Law” (2019) 42:2 Harvard Journal of Law and Gender, 202 at 224. 90 to a specific biological binary category. Rather, birth assignment allows institutional actors to transform external body features from a signified attribute into a signifier of internal truth about essential differences, thereby justifying the allocation of a differentiated binding legal status.380 Within this legal-institutional logic, sex is imagined as a pre-social biological category and gender identity as social manifestation of sex which emanates from internal and individual feeling. Both sex and gender identity gain their meaning from the public presentation of alignment with gender expectations.381 One is recognized as a woman not because a spectator had tested her chromosomes or inspected her genitals, but because her gender presentation is successful in communicating a specific genital status. 382 Meaning is derived not from the woman’s actual genitals, but from an observer’s belief in those genitals based on her performance. If the purpose of sex assignment were merely to mark a specific bodily difference (presumably genitals), it would not justify having sex classifications as a part of one’s legal entity. It is hard to think of a justification for allocating differential legal status to all people born with blue or brown eyes.383 This classification might be useful in distribution of goods and services, as statistical differences in abilities and characteristics exist between any two groups. For instance, if examined, either group could be more likely to have car accidents. Yet, it would be hard to argue that the colour of one’s eye has anything to do with their driving abilities. Allocating legal status according to eye colour would not be considered justified because society 380 Even with respect to what is perhaps the only socially relevant sexual difference, a person’s ability to bear children, external genitals can say very little. Yet, if sex designations could or would be distributed on the basis of scientific biological classifications, having or lacking the ability to bear children does not require allocating a differentiated legal status at birth, and certainly does not account for the myriad usages of sex designations. For instance, one can think of replacing the common law assumption that a woman who gives birth is a mother, with the assumption that a person who gives birth has parental responsibilities. 381 Butler, supra note 150 at 180. 382 Talia Mae Bettcher, “Evil deceivers and make-believers: On transphobic violence and the politics of illusion” (2007) 22:3 Hypatia 43–65 at 53. 383 Though this classification might be useful in distribution of goods and services, as statistical differences in abilities and characteristics exist between any two groups. For instance, if examined, either group is more likely to have car incidents. 91 does not believe that a person’s eye colour signifies an essential and inherent truth about them.384 Sex assignment is justified because it supposedly denotes affiliation with a socially salient group. This very affiliation is based on binding together bodily functions with characteristics and attributes that define the membership in the socially salient group they supposedly denote. Sex classifications are assumed to be descriptive because of the expectation that a person assigned F will grow up to experience themselves and identify as a woman (and vice versa). However, they are productive because they provide the structure for the policing and enforcement of the expectations they describe. Obviously, sex classifications are also used for the benefits of women as a group and for remedying past harms, including through tax policies and affirmative action policies. However, sex classifications are not required for accomplishing these goals. For instance, the law is mobilized (with very partial success) to benefit other groups suffering from histories of discrimination, such as those who are racialized, without having to allocate a binding racial category at birth. The Assumptive Fail Sex classifications place detrimental costs on those who attempt to defy the gender expectations administered through them. Those who present themselves as if they were born with a different genital status than that ascribed to them at birth are regarded as deceivers and pretenders,385 and can be severely punished for their deception.386 More broadly, sex classifications provide the binding legal structure for the attribution of relevance to differences between those assigned M and those assigned F, suggesting that the latter are unequal to the former. This reading of sex classification from a trans perspective suggests that, in addition to questioning whether the difference between men and women is relevant for the purpose of a specific act, decision, or legislation, there is a need to consider how difference itself is produced by the law. 384 Eye colour can be a racial signifier that denotes lower social value (see: Katri, “The banishment of Isaac”, supra note 85.). 385 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 390–391. 386 See supra note 366. 92 Instead of looking for ‘after the fact’ remedies for inequality, the law should also be held accountable for its power of sustaining binding differentiations that create the difference it later needs to address. To put it simply, birth assignment of sex is a sex-based classification whose justification in an age of alleged formal equality is questionable: if non-trans men and women are supposedly equal, why does the law allocate a differentiated legal status at birth to them and uphold this status throughout law and life? Formal discrimination is understood foremost as the obligation to provide similar treatment to those who are similarly situated and to ignore difference if it is irrelevant for the purpose of the act, decision, or legislation. Discrimination can take many forms including direct, indirect, or structural, but it involves, in some sense or another, an assessment of what the relevant comparison group is: 387 on which characteristic of difference between people is the act or decision or law based?388 Critical race theory and radical feminism both point out that this view of discrimination obscures the actual operation of racism389 and sexism,390 an obstruction that is further secured in the intersection of race and gender.391 The sameness/difference paradigm allows the law to conceal the operation of white supremacy and male dominance under the rubric of ‘sex’ or ‘race.’ 392 Still, a distinct understanding of equality and discrimination seems to share the presumption that difference itself is extrajudicial if not pre-social, at least when it comes to socially salient groups. A close reading of the administrative act of birth assignment of sex sheds light on a legal structure that produces the difference the ideal of equality seeks to overcome. Perhaps this is a significant limit of the formal and critical ideas of legal equality: that they fail to account for the mechanism of differentiation. Thus, the law’s role in producing or sustaining difference is acute. The disciplinary power of sex classifications, which enables population-wide control over 387 Altman, supra note 371, s 1.1. 388 Medina, supra note 373 at 78. 389 Freeman, “Legitimizing racial discrimination through antidiscrimination law”, supra note 364 at 1050. 390 MacKinnon, supra note 351 at 20. 391 Crenshaw, “Demarginalizing the intersection of race and sex”, supra note 364 at 155. 392 MacKinnon, supra note 351 at 21. The term male dominance in itself is obviously not without suspicion in the context of gender nonconforming bodies. 93 bodies393 through the enforcement of binary gender expectations, indicates that legal structures play a significant role in transforming extrinsic attributes into innate difference, into gender identity. The process of separating bodies into binary classifications and conferring disparate legal meaning to each class is not extra-legal. This is not to say that material realties do not exist or that bodies are only a product of social constructions and their transcriptions into the law. Rather, I am suggesting that the power to assign particular bodies specific legal status creates certain kinds of universal truths regarding sameness and difference, belonging and otherness, which the law tries to remedy. Therefore, instead of looking for an essential truth of the body or the self, there is a need to examine systemic apparatuses, such as birth assignment of sex, which demarcate the borders of accepted forms of participation in public life.394 There is a need to account for how, within complex the interactions of law and society, between what is considered objective and subjective, mind and body, individuals and communities are marked as different. Administrative Performativity - Origin Stories The Latin root of sex, as Susan Stryker noted, is to divide, and the root of gender is a type or kind.395 Sex and gender are systems of differentiation whose vessel is the collective agreement on the contours of the sexed body and its proper deployment. As Brenda Cossman argues, Citizenship has always been sexed. The terms of belonging have always incorporated norms of appropriate sexual practices. From the practices of the ancient Greeks, to the proliferation of public discourses of sex from the seventeenth century forward, to the articulation of the American nation, sex has long been implicated in citizenship. Membership in the public sphere, whether envisioned as rights, political participation, or broader practices of belonging, have been conditional upon a set of sexual norms and practices circumscribed within the private sphere. In the modern context, this belonging has presupposed a highly privatized, 393 Spade, supra note 26 at 78. 394 Ibid at 15. 395 Susan Stryker, supra note 104. 94 familiarized, and heterosexual sexuality. Some subjects were explicitly excluded.396 The questions “who do I desire?” and “who do I desire to be?” implicate each other in Cossman’s account of citizenship. Gender identity and sexuality are inseparably linked through the sexed body. Thus, the sexed body is probably one of the first clauses of the Hobbesian social contract.397 But where does the legally sexed body originate? I want to locate ‘the origin story’ of sex classification and gender identity of legal subjects in the practice of sex assignment at birth. That moment, I argue, locks the potential for difference embedded in the materiality of the body into a fixed binary category of an individual. The individuated sexed body can now be expected to identify with and express femininity or masculinity. I will look at the emergence of sex as a category of the administration of bodies and populations, examine the administrative psyche behind it, and ask how it translates into the repetitive stabilizing act of birth assignment. There is a risk of giving too much power to the nation-state over these intricate multi- level processes. I further run the risk of abstracting power in ways that hinder the responsibility of specific state agents. However, it is my intention to show that the production of gender, like the production of other systems of difference, is not monolithic. The fact that power is not monolithic does not mean that it does not play out through pre-existing legal context.398 The object of research here is the legal construction of gendered subjects and their sexed bodies, which I consider as just one, often invisible, apparatus for the distribution of life-chances. The rest of this chapter is an attempt to demystify the ‘background rules’ through which disciplinary elements of legal power construct the sexed body. Instead of using trans embodiment as the subject of my critical inquiry, applying psychoanalysis and performativity to the ‘deviant’ body, I want to turn the gaze to the legal-administrative technologies that produce 396 Cossman, “Sexual citizens”, supra note 349 at 290. 397 Butler reads the social contract narrative through the figure of the man in a ‘state of nature’: “with the opening moment of the story, that is, with the moment that marks the beginning, gender, for instance, has already been decided. Independence and dependency have been separated, and masculine and feminine are determined[…] the primary founding figure of the human is masculine.” See: Judith Butler, The force of nonviolence: an ethico- political bind (London: Verso, 2020) at 37. 398 Kennedy, supra note 376 at 358. 95 sexually differentiated subjects and populations. By locating the psyche of sex classification and the gender performativity of the administrative process, I use theory in the service of lived experiences. Looking through the state apparatus of birth assignment will allow me to account for its affect, as well as examine those whom it most affects. Reviewing the recent shifts in laws and policies regarding sex reclassification reveals a move from locating administrative truth, that is legal sex, on the ‘objective’ body to finding it within the ‘subjective’ self, as I have previously discussed. These logics, where a subjective position grants access to objective status, where self-identified gender is not a matter of choice but a conscious position, might seem contradictory at first; however, they actually continue a long history of enlightened understanding of rights and of the volatile nature of binary legal divisions between body/mind, self/other. The turn toward a right for gender identity is formulated and practiced within the same legal binary logics and frameworks that sustain the distribution of differentiated legal sex at birth, i.e., within the logic of birth assignment of sex. I will suggest that administrative gender performance, evident in the administrative process of birth assignment of sex, constitutes binary legal sex categories as pre-determined inherent truth. I will suggest that, while the law imagines that birth assignment only documents certain facts, it is in fact a signification apparatus that upholds the imagined image of stable and controllable sex categories. A strong link exists between the power to differentiate and the power to mark certain practices as deviant or certain people as unbecoming.399 The Modern Category of Sex The Napoleonic code of 1804 is the first legal code to have a pan-European scope, and it influenced the laws of many countries and territories.400 Chapter II of Book I, Title II of the code orders the registration of every birth. Section 57 specifies that the registration should include the sex of the infant. Within the common law world, the English census included sex classification since its inscription in 1801.401 The 1836 Bill for registering births, deaths and marriages in England, which enacted the General Register 399 Cossman, “Sexual citizens”, supra note 349 at 292. 400 Monika Senkowska-Gluck, “Effects of Napoleonic Legislation on the Development of the 19th-Century Europe” (1978) 185 Acta Poloniae Historica at 187. 401 Sullivan, “Sex and the census”, supra note 366 at 1. 96 Office for England and Wales, also required the registration of newborns’ sex.402 A centralized public registrar did not appear in the US until the beginning of the 20th century.403 Given the history of sex classification in both civil and common law, it is plausible to think that local registries included the category of sex. Earlier codifications, including canonical law and other forms of religious law, have included sex-specific duties and standards for classification of men and women.404 The rationale for including sex within the public registration of birth seems to be connected to sex specific rights and obligations, such as military conscription, marital rights, etc.405 Notably, at the beginning of the 19th century, by and large, women had lesser property rights and their bodily autonomy was considered the property of their fathers and husbands.406 However, the category “woman” was not unitary, and, accordingly, access to rights differed.407 Early on, sex classification, much like the category of race, seemed to mark the lines between those who had property and those who were property of others, between having and being. Evidently, men and women have been divided, in different cultural contexts, prior to the development of mass population registrars, yet the technology of centralized registrars allowed for policing of the categories on a much broader scale. While rights and duties were differently distributed before, now the access to the privileged group, and to its rights and duties, was under centralized control. From the beginning of mass assignments of sex in Europe, the need for reclassification existed for those who might be considered intersex today,408 and for those who might identify as trans.409 Still, the entire Western discursive system of identification in circulation today cannot describe the lived experiences and self-identification of these historical individuals and their communities. 402 Interestingly, the category of sex in this bill is temporal. The bill includes in Schedule A an example of how to register a birth in which the category “Boy” appears under the rubric sex. Schedule B, which refers to registration of the death, notes the deceased as “Male”. 403 Spade, supra note 34 at 765–766. 404 Morgan Holmes, ed, Critical intersex, Queer interventions (Farnham, Surrey ; Burlington, VT: Ashgate, 2009) at 150. 405 M/V en verder Sekseregistratie door de overheid en de juridische positie van transgenders [M/F and beyond Gender registration by the state and the legal position of transgender persons], by M van den Brink & Jet Tigchelaar, 2393 (Utrecht: Utrecht Center for European Research into Family Law (UCERF), 2014) at 11–12. 406 Patricia Crawford, “Women and property: women as property” (2002) 19:1 Parergon 151–171 at 159. 407 Ibid at 153–155. 408 “people whose inborn sex characteristics vary from both male and female standards.” “The Road to Hell: Intersex People, Sexual Health & Human Rights”, (8 November 2019), online: GATE 97 How and why did the modernizing administrative state of the 19th century gain control over a differentiated category of sex? This is exactly the question that Foucault addressed in his History of Sexuality. Foucault describes the emergence of the disciplinary power over the body, the power to impose precise and detailed norms on individuals, by marking the deviant.410 In conjunction with disciplinary power, Foucault considers population control as another form of power that governs the social body as a whole. 411 The conjunction of these two distinct forms of power, i.e., of biopolitics,412 utilized the “notion of sex”413 to develop biopolitics, the technology of power aimed at governing life: [T]he notion of sex made it possible to group together, in an artificial unity, anatomical elements, biological functions, conducts, sensations, and pleasures, and it enabled one to make use of this factious as a casual principle, an omnipresent meaning […].414 The binary differentiation of sexed bodies as male or female is constructed as an objective scientific reasoning of reproduction. 415 Sexuality is produced and controlled through the organizing of the individual and collective body in certain ways, of organizing what makes a man and a woman, and what it means to be one. Foucault suggests that what is assumed to reflect fundamental ahistorical and apolitical truth about the pre-existing closed entity called sex was carefully constructed.416 Yet, intent does not mean malintent, nor does it suggest a single well-planned act of construction; rather, it points to a development of administrative technology over a long period of time. The emergence of the category of sex, more than it served the interest of a specific person, served a developing humanity. In this context, power is not a matter of sovereign will but of “multiplicity of force relations immanent in the sphere in which they operate and which constitute their own 410 Michel Foucault, “The history of sexuality: An introduction, volume I” (1990) Trans Robert Hurley New York: Vintage, online: 98 organizations.”417 For Foucault, the content of law does not flow “from the combination of regime-defining abstract premises and technical legal reasoning,”418 but rather from complex disciplinary apparatuses that allow for population-wide control. Still, as Duncan Kennedy notes, Foucault’s formulation of the law does not mean that the law is a mere reflection of power relations.419 As the trans perspective on sex classification shows, the law is not a coherent domain simply governed by rules, individualist rights, and deductive reasoning, but rather, “the discipline is always already an element of legal power,”420 in the sense that the law is also the structure (the rule of the game) within which subjects negotiate (with) power.421 Most of the time, these ground rules are simply assumed, but at a certain point, a juridical agent – a judge, a clerk, or a registrar – had to give them meaning.422 When there is a new gap, a conflict or ambiguity in the system of meaning, someone with juridical power must resolve it.423 Both birth assignment of sex and sex reclassification are sites in which people within legal and administrative institutions “produce arguments for legal necessity to justify coercion.”424 Trans demands for self-identification of gender likewise produce this “kind of rightness”425 to justify their desires. These sovereignty negotiations animate Foucault’s account of the category of sex. Foucault’s account is a clear elaboration of the idea that sex is a dynamic discursive- material apparatus in which certain attributes of the body and of subjectivity turn to a ubiquitous unit of universal meaning. This universality of sex, despite its ever-changing borders, is presumed in all schemes of sex reclassification and all current trans attempts at reform. Even the those demanding the X marker or self-identification suggest that universal truth of the bodies (being sexed) should not determine one’s gender identity, but that gender identity overcomes these limits of the body. Returning to Foucault, however, reminds us that the very notion of 417 Foucault, “The history of sexuality”, supra note 410 at 92. 418 Kennedy, supra note 376 at 122. 419 Ibid at 360. 420 Ibid at 364n12. 421 Ibid at 357. 422 Ibid at 329. 423 Ibid at 350. 424 Ibid at 362. 425 Ibid. 99 differentiation of the mind from the body is already controlled through administrative employment of individuating categories. In Sapiens: A Brief History of Humankind, Yuval Noah Harari narrates the history of humanity through the development of what he describes as shared beliefs.426 These are figments of collective imagination, ideas that enable collective actions, such as god, the state, or money.427 Today, money has insignificant value in its pure material form, the paper it is printed on or the metal it is coined into, if it even exists in a world where almost all money is electronically held. The value of money is constructed through our shared belief in it, as Harari proclaims: “Money is the most universal and most efficient system of mutual trust ever devised.”428 Money allows people to cooperate across cultural and linguistic gaps. Without accepting the belief in money, no individual or collective can become an economic subject. What Harari referred to as figments of collective imagination might be understood in Foucauldian terms as a kind of discourse. Money might be thought of as a discursive practice. When Foucault describes sexuality as a discursive practice rather than an expression of repression that is distorted by ideology,429 he is alluding to the idea that the sexed body is to biopolitics what money is to the economy. The sexed body is a figment of collective imagination, and, like money, it is a belief shared across humanity, a belief which is a condition of entry into human subjectivity. The value of bodies is not rooted in their actual flesh-and-blood materiality, but in their ability to project a shared belief in the imaginary body. Foucault argues that developments in the category of sex, starting from the 17th century and peaking in the 19th century, had a fundamental part in creating modern forms of state power.430 The centrality of sex in the process of modernity can be explained by the historical technological conditions of that period. These were times of the scientific revolution, a moment in which the European man developed the technologies to intervene in life itself.431 426 Yuval Noah Harari, Sapiens: A Brief History of Humankind, reprint edition ed (Harper, 2015) at 2811-2817/6944. 427 Ibid at 2614-2617/6944. 428 Ibid at 2748/6944. 429 Foucault, “The history of sexuality”, supra note 410 at 68. 430 Ibid at 140. 431 Harari, supra note 426 at 3933/6944. 100 In 1674, humans began to observe and manipulate life at the microorganism level.432 In 1687, Newton’s The Mathematical Principal of Natural Philosophy narrated the natural world in the language of mathematics and unleashed enormous powers for humanity.433 The growing rate of scientific and technological discovery, unparalleled in prior human history, which placed medical, biological, and other scientific tools within the reach of the European man, enabled him to take greater control of his destiny, to fight famine and plagues, to colonize the world, and to give rise to the ongoing fantasy that humans can control life, that even death can be tamed.434 Statistics emerged at the end of the 16th century,435 and in 1693, Edmund Halley set the basis for the science of demography by analyzing records of 1238 births and 1174 deaths from a small city in Germany.436 Demography, in turn, served as the cornerstone for Charles Darwin’s 1859 The Origin of Species,437 the foundational text of the science of biology and the pseudo- science of eugenics. The former continues to serve as “transpersonal justification” for juridical agent making decision on sex reclassification, and the latter provided the initial justification for the administrative classification of sex (and race). 438 Disciplinary and population control technologies developed to maximize the benefits offered by new spheres of human knowledge like biology,439 and new discourses of white supremacy such as eugenics,440 to organize society in such a way as to maximize its potentiality in reproducing power through controlling human reproduction.441 432 Ibid at 3752/6944. 433 Ibid at 3871/6944. 434 Ibid at p.4057/6944. 435 Ibid at 3882/6944. 436 Ibid at 3888/6944. 437 Ibid at 3096/6944. 438 Spade & Rohlfs, “Legal equality, gay numbers”, supra note 141. 439 Harari, supra note 426 at 54. 440 “The eugenic movement called for selective breeding programs where individuals deemed less desirable (people with physical impairments, people of color, people with ‘deviant’ sexuality or gender, poor people, people deemed insane) would be sterilized and individuals determined to be more desirable (white people, rich people, people deemed intelligent, people perceived to be able-bodied, heterosexual people) would be encouraged to reproduce and provided with support from the state.” See: Spade & Rohlfs, “Legal equality, gay numbers”, supra note 141. 441 Foucault, “The history of sexuality”, supra note 410 at 140–143. 101 Spade, using the work of James C. Scott, explains how standardization of data collection is a constitutive character of the modern state.442 Standardization of data collection allowed for “population-level information and intervention, a map of social and economic conditions relevant to the state’s purposes” which are “necessary to modern forms of governance.”443 Standardized data collection on individuals is essential for immigration, food production, military conscription, taxation, policing, health management, normative family structuring, and more.444 In Foucault’s phrasing, it is crucial for controlling life. This was the context out of which biopower grew, the technology to bring “life and its mechanism into the realm of explicit calculations,”445 and to make “knowledge-power an agent of transformation of human life.”446 Whereas disciplinary power controlled the body, population control was directed at the human society at large, the ‘species itself.’ Sex as a normative conception of bodies merged these distinctive powers as “a means of access both to the life of the body and the life of the species.”447 Sex became both the “standard for the disciplines”448 in the subjection of bodies and the “basis for regulation” 449 in controlling populations. Our normalizing societies, according to Foucault, are the historical product of “a technology of power centred on life.” 450 As sex came to be considered a “unique signifier and as a universal signified”451 of human life, it became a focal point of the collective imagination of the modern sovereign state.452 442 Spade, supra note 34 at 739. 443 Ibid at 741. 444 Ibid. 445 Foucault, “The history of sexuality”, supra note 410 at 143. 446 Ibid. 447 Ibid at 146. 448 Ibid. 449 Ibid. 450 Ibid at 144. 451 Ibid at 154. 452 Sovereign power developed into ‘administration of bodies and calculated management of life.’ The judiciary operates through distribution of norms, “increasingly incorporated into a continuum of apparatuses (medical, administrative, and so on) whose functions are […] regulatory.” (Foucault 144) 102 The 19th-century emergence of science and technology in the service of reproduction453 provided conditions for the evolution of biopolitics as a form racialization.454 Susan Stryker explains that for Foucault, race is understood as “spurious biologization of culturally salient bodily difference,”455 and is better understood as speciating violence. Foucault’s racialization, or Stryker’s speciating violence, is “an introduction of a brake into heterogeneous populations that becomes the principle of differentiation between those bodies who are granted greater capacity for life and those who are disallowed.”456 This kind of systemic violence works through the classification of individuals and groups along scientifically backed lines of propriety drawn between the deviant and the law-abiding citizen.457 Speciating is not aimed at suppressing those marked as deviants, but rather aims to transform bodies and modes of conduct to “a principle of classification and intelligibility, established as a raison d’être and a natural order of disorder.”458 Speciating violence sorts bodies into hierarchies according to presumed immutable criteria, and it works through a shared belief that bodies offer stable ground for classification.459 Foucault’s analysis is limited to sexuality, understood as “reproductive capacity as well as modes of subjective identification, the expression of desire, and the pursuit of erotic pleasure.”460 Stryker notes that this account of sexuality’s biopolitical function cannot fully account for gendering practices, the subjection of individuals “in such a manner that socially constructed categories of personhood come to be experienced as innate and ontologically given.”461 According to Stryker, gender should be approached as biopolitical: Gender does not pertain primarily to questions of representation – that is, to forming correct and incorrect images of the alignment of a signifying sex (male or female) and a signified cultural category (man or woman) or 453 Harari, supra note 426 at 3936/6944. 454 Susan Stryker, supra note 104. 455 Ibid. 456 Ibid. 457 Michel Foucault, Discipline and punish: the birth of the prison, second vintage books edition ed (New York: Vintage Books, a division of Random House, Inc, 1995) at 272. 458 Foucault, “The history of sexuality”, supra note 410 at 44. 459 Susan Stryker, supra note 104. 460 Stryker, supra note 412 at 39. 461 Ibid. 103 physical disposition (masculine or feminine). Gender, rather, is an apparatus within which all bodies are taken up, which creates material effects through bureaucratic tracking that begins with birth, ends with death, and traverses all manner of state-issued or state-sanctioned documentation practices in between. It is thus an integral part of the mechanism through which power settles a given population onto a given territory through a given set of administrative structures and practices.462 Stryker allows us to think of gender not as a discourse of the body, but to consider instead the sexed body as a discursive practice. Ideas about differentiated roles, attributes, and characteristics of man and woman existed long before the rise of science and the modern state. It is the sexed body as figment of collective imagination that evolves as a scientifically based state technology of power. Understanding biopower as operating through gendering practices positions birth assignment of sex at the heart of state apparatuses. Sex assignment at birth is a chief technology of both disciplinary and population control power. Sex is presumed to be both a unique signifier, marking which people are male or female, and as a universal signified, what male and female are as categorical positions. It is the distribution of signification onto individualized bodies at the level of the population as a whole. Indeed, as mentioned above, sex has been collected since the beginning of mass population registrars. Birth assignment is the administrative act of conferring stability, or “finality” in the words of Foucault, not to the materiality of bodies, but to the sexed body as a figment of collective imagination, in Harari’s words. Harari allows us to position Stryker’s account of gender in terms of Foucauldian biopolitics within the symbolic and imaginary register of the psyche, to which we now turn. 462 Ibid. 104 Theories of Gender Acquisition In practice, sex assignment at birth is the process in which a medical practitioner463 examines a newborn’s visible genitals and subsequently declares the baby to be male of female. This data is then recorded on the birth certificate and becomes a part of a public registrar and of a person’s legal identity.464 How is the sexed body constructed as a figment of collective imagination in this process? What are the material implications of this process and how are they reflected in and through birth assignment of sex? To answer these questions, or even to account for the reasons for asking them, I turn to psychoanalytic theories of gender acquisition as part of development of subjectivity. I critically read through Freud and Lacan’s formulation of the Oedipal complex, using the work of Gyle Rubin, Oren Gozlan, and Judith Butler, and supplementing them with Frantz Fanon’s formulation of the Oedipal aspect of racialization. Psychoanalytical theory provides insight into the ideas we experience as ourselves, challenging the claim of the existence of a conscious self- aware “I” that is independent of the symbolic order, instead understanding the self as situated within language, institutions, laws, norms, practices, rituals, rules, and traditions.465 By laying the administrative state on the psychoanalytical divan, I describe the construction of the legally sexed subject as an effect of the administrative psychic and its collective imaginations of itself, its subjects, and their bodies. Administrative anxieties and fantasies over gender indeterminacy would reveal that the sexed body is not merely a blank slate upon which social meaning is projected, or an object whose substance is stable and extrajudicial. Rather, I will argue that the very materiality of the sexed body cannot be separated from the state imaginary that presumes it. I will use psychoanalytical insight to deconstruct birth assignment as 463 According to UNICEF data, 81.1% of births around the world are attended by skilled health personnel (see: “Despite accelerated recent progress, millions of births occur annually without any assistance from a skilled attendant (Data)”, online: UNICEF DATA 105 a ritual without origin, constituting regulatory norms through which sex is materialized, a process of turning the penis into the phallus.466 I argue that birth assignment of sex should be understood as administrative gender performativity, a repetition that constitutes the administrative state as a space of stable and coherent sexed bodies. The sexed body, whose contours are defined by an act of differentiation between male and female, will be placed within its own historicity and the history of public registrars. These registrars will also be shown to be racializing apparatuses.467 In this context, I will explore how the Oedipal process constructs the sexed body as a primal site for signification, moving from assuming a position within the structure of the family to assuming a position within the state and the nation.468 I am aware that in this section I venture into a field within which I do not possess even a provisional authority, yet, I heed Butler’s assertion that “unanticipated re appropriations of a given work in areas for which it was never consciously intended are some of the most useful.”469 Following C. Reily Snorton, I confirm that I, too, fail, without intention but also intentionally,470 at writing a psychoanalytic theory of the political and historical conditions of birth assignment of sex, and instead attempt to provide small leaps of invention.471 With joy and jouissance, I rely on my nonexisting authority to unsettle disciplinary boundaries between administrative law and the humanities in a pursuit of the “not yet differentiated singularity from which distinct genders, race, species, sexes and sexualities are generated in a form of relative stability.”472 The Oedipus Complex Gayle Rubin’s reading of Freud and Lacan in “The Traffic in Women” provides a useful feminist interpretation of how sex divides, deforms, and translates differences into signification.473 Oren Gozlan’s 466 Judith Butler, “Bodies that matter” (1999) Feminist theory and the body: A reader 235–245 at 10. 467 Homi K Bhabha, “Foreword to the 1986 edition. Remembering Fanon: self, psyche and the colonial condition” (2008) 21 Frantz Fanon’s Black Skin, White Masks, translated by Charles Lam Markmann 37 at xxxi. 468 Frantz Fanon, Black skin, white masks (Grove press, 2008) at 109. 469 Butler, supra note 466 at 19. 470 Snorton, supra note 85 at 9. 471 Ibid. 472 Claire Colebrook, “What is it like to be a human?” (2015) 2:2 Transgender Studies Quarterly 227–243 at 228. 473 Gayle Rubin, Deviations: A Gayle Rubin Reader (Duke University Press, 2011) at 48. 106 attentiveness to fetishistic understanding of gender nonconformity in psychoanalytical theories of gender acquisition is revealing of these theories’ heteronormative disposition and embodied fantasies of bodily certainty. Understanding birth assignment through these terms provides a new perspective on its psychic purpose for the administrative state, and provides insights on the power matrix of gender relations. The Oedipus complex is the primary psychoanalytical theory of gender acquisition.474 According to the Freudian Oedipus complex, pre-Oedipal female- and male-assigned babies are indistinguishable. As a result of the Oedipal process, they are differentiated, on the psychic level, into masculine and feminine children, vis-à-vis the fear or experience of castration:475 a fear of losing the penis and an experience of lacking one. As Rubin notes, Freud’s account of this process, the classical Oedipus complex, has been accused of biological determinism, though Freud himself argued that sexuality resulted only from the development of the psyche,476 considered in binary opposition to the body. As Gozlan notes, “Freud forgets that castration is as much a fantasy as is the maternal phallus and, therefore, that to embrace the reality of sexual difference what needs to be overcome is the fetishistic phantasy of phallic monism (non- castrated/castrated).”477 While some of his successors have turned to biological interpretations of his work, others, notably Jacques Lacan, considered psychoanalysis “as a theory of information rather than organs.”478 For Lacan, the Oedipus complex begins when the child discovers the sexual rules ingrained in the kinship system into which they were born. This kinship system, while allegedly universal, is nevertheless imagined in Western middle-class heteronormative terms (mother-father-child). The Oedipal stage ends when the child assumes a sex by accepting their place in that system and consenting to it by adopting a gender identity that conforms to the accepted norms of their society.479 Butler points out that this “assumption” does not reflect a choice but is compelled by the apparatus of normative gender and sexuality. The act of assumption is not a singular act, but the reiteration of a norm or sets of norms. Thus, the assumption is constrained from the start.480 The child can refuse to assume a sex, yet they still cannot 474 Ibid. 475 Ibid. 476 Ibid at 49. 477 Oren Gozlan, Transsexuality and the Art of Transitioning: A Lacanian approach (New York, NY: Routledge, 2014) at 8. 478 Rubin, supra note 473 at 49. 479 Ibid at 51. 480 Butler, supra note 466 at 12. 107 refuse the knowledge of sex assignment.481 As Gozlan describes it, according to Lacan, “assuming a gender signifies an acceptance of an answer regarding one’s place in the symbolic order.”482 To explain the acquisition of gender, Lacan distinguishes between the organ and the function of the organ. Lacan makes a clear distinction between the phallus and the penis483 by proclaiming that the phallus is not the penis.484 As feminist readings of Lacan explain, the phallus is the vessel of difference between man and woman as two distinctive “sexual statuses.”485 It is the embodiment of male privilege and “an expression of the transmission of male dominance.”486 The penis ceases to embody the decisive role attributed to it in Freud’s castration complex. The female genitals are not actually castrated. There is no lack outside the meaning conferred onto to the external genitals.487 Gender acquisition vis-à-vis the Oedipus complex is the process of bestowing male rights on ‘boys’ and forcing ‘girls’ to adapt to a lesser position.488 The boy enters the symbolic order by having the phallus, that is, male privilege. The girl enters the symbolic order by “being” the phallus, the object of male desire. If one wants to tell the heteronormative Oedipal story from a Lacanian perspective, it would go something like this: The ‘boy’ renounces the mother out of fear that the father, the one who has the phallus, would not give it to him, would castrate him. By agreeing to let go of the mother in return for a phallus, the ‘boy’ agrees to the social contract (the Symbolic) that would bestow on him male privilege. Like the ‘boy,’ the ‘girl’ realizes that there is a privilege difference between the sexes and that she cannot have the mother, but she also realizes that she is at a disadvantage. She suffers from “a feeling of inferiority about her genitals,”489 not because they are less adequate for lovemaking, but because within the social norms of ‘compulsory 481 Rubin, supra note 473 at 51. 482 Gozlan, supra note 477 at 6. 483 Rubin, supra note 473 at 52. 484 Butler, supra note 466 at 83. 485 Rubin, supra note 473 at 52. 486 Ibid. 487 Ibid at 53. 488 Ibid at 57. 489 Ibid at 54. 108 heterosexuality,’ women (including her mother) are relegated to men.490 By recognizing her ‘castration,’ she consents to the role of women in a phallic system. Separating the penis and phallus, castration and vagina, allows us to see how the Oedipus complex is about conferring signification onto visible anatomical difference as part of the forcible production of the sexed body. Gender is both the contextualization of sexual difference signification within a social value system, and the psyche, the psychological construction, emotional realm, and subconscious of that signification. This narrative of normative gender acquisition is useful in relation to birth assignment because, as I will further elaborate, birth assignment constructs this narrative as material reality, stabilizing the symbolic. Butler challenges the generous feminist reading of Lacan, whose understanding of the separation between the phallus and the penis can be mapped onto the separation of sex and gender, a distinction Butler has deeply unsettled. Butler exposes Lacan’s own assumption of phallic monism. Butler notes that in Lacan’s assertion that the phallus is not the penis, he inevitably links them together in a relation of signifier and signified:491 If the phallus only signifies to the extent that it is not the penis, and the penis is qualified as that body part that it must not be, then the phallus is fundamentally dependent upon the penis in order to symbolize at all. Indeed, the phallus would be nothing without the penis. And in that sense in which the phallus requires the penis for its own constitution, the identity of the phallus includes the penis, that is, a relation of identity holds between them.492 The symbolic order structuring the relation of identity between the penis and phallus is phallocentrism. Lacan positions the phallus as a differentiating apparatus for the distribution of privileges, as socially, rather than biologically, determined. He nevertheless presumes the existence of difference prior to the phallus by positioning the penis and phallus in a relation of negation. That is, the only body part that is symbolized as “having” the phallus is the penis. 490 Ibid. 491 Butler, supra note 466 at 83. 492 Ibid at 84. 109 Thus, Butler agrees that the Lacanian scheme allows the phallus to symbolize other body parts than the penis, but only in as much as those parts are symbolized “being” the phallus, as the objects of male desire.493 Here Lacan fails his own formulation that anatomy is not a stable referent but is in some sense dependent on an imaginary scheme.494 For, according to Lacan’s mirror stage, the body is a delirium we are forced to live, a delirium that is the precondition of singular subjectivity. The mirror stage is the Lacanian paradigm for the enduring sense of a stable and coherent “I,” explained by looking at the developmental stage when babies, aged between six and eighteen months, learn to identify their own image in the mirror.495 The Mirror Stage At the developmental point of the mirror stage, babies are almost completely dependent on their caregivers for their survival, and their ability to control parts of their body is extremely limited. The baby’s body is experienced as fragmented and its action as involuntary, for the most part. For both Lacan and Freud, this age is characterized by feelings of anxiety, distress, and helplessness.496 When the baby sees their body reflected in the mirror, they encounter an image of a unified, integrated, coordinated totality. According to the Lacanian mirror stage, the sense of an “I” goes through two simultaneous registries of identification: the baby identifies an external image of a unified, coherent, stable body, and they also identify with that image. The image promises the baby that they, too, can overcome their helplessness and become an independent whole, like the bigger others they see around them.497 Yet, this bigger other, the caretaker, often the mother, is not just around the baby in a general sense. These bigger others have also placed the baby in front of the mirror and propelled the baby’s identification with their reflection, e.g., by asking the baby “who is that in the mirror?” or “look at that big boy.” 498 493 Ibid at 83. 494 Ibid at 65. 495 Johnston, supra note 465, s 2.2. 496 Ibid. 497 Ibid. 498 Ibid. 110 Both identifications, of a body and with the body reflected, are mediated through the caregiver: the caregiver demarcates the baby’s body by pointing it out of the entire room reflected in the mirror, and the caretaker also names those contours as the baby, saying, “that’s you!” It is thus a process of differentiation and signification. The mirror stage suggests that the Imaginary registry of the psychic, the sphere of conscious self-awareness,499 is not prior to the Symbolic registry, laws, norms, practices, and so on that form cultures and societies,500 and both are a failed attempt to master the mutability of the Real, the sphere of psychic immanence which cannot be signified.501 The baby’s reflection in the mirror is not their materiality or their experience of it. The reflection is an organizing idea for the transitive502 experience of materiality, which becomes intelligible as an “I” through the caretaker’s acts of differentiation and significations.503 The caretaker signifies and differentiates the baby and their body by naming them: “To be named is thus to be inculcated into that law and to be formed, bodily, in accordance with that law.”504 The name is already sexually marked exactly because the act of naming is what allows the baby to differentiate the contours of their body and themselves, their imaginary order, from that of the caregiver. Individuation occurs “through the unstable dynamics of sexual differentiation and identification that take place through the elaboration of imaginary bodily contours.”505 Not only do individual subjects become what they are through the mediation of inter- subjective and trans-subjective socio-linguistic contexts, but the very condition of a singular subjectivity is this collective order of ideas that reduces singular indifference to differentiated 499 Ibid, s 2.1.1. 500 Ibid, s 2.1.2. 501 Note that this is an elaboration on Lacan inspired by Gilles Deleuze’s concept of “Plane of immanence” which is itself inspired by Spinoza’s metaphysics of Hasidic oneness; immanence does not depend on an object or belong to a subject but rather that immanence is substance (see: Gilles Deleuze, “Pure immanence: Essays on a life” (2001) at 26.). 502 I borrow from Claire Colebrook’s definition of transitivity as “the condition for what later becomes known as the human” and trans as “a not yet differentiated singularity from which distinct gender, race[s], species, sexes and sexualities are generated in a form of relative stability.” (see: Colebrook, supra note 472 at 228. 503 Butler, supra note 466 at 71. “the sense of one's own body is not (only) achieved through differentiating from another (the maternal body), but that any sense of bodily contour, as projected, is articulated through a necessary self-division and self-estrangement.” 504 Ibid at 72. 505 Ibid. 111 forms.506 Thus, Lacan asserts that the phantom integrity of the body and, subsequently, the subject, can only be sustained through submitting to language and to marking by sexual difference.507 Butler’s reading of the mirror stage suggests that “the boundaries of the body are the lived experience of differentiation, where that differentiation is never neutral to the question of gender difference[...].”508 Still, as Butler notes, in Lacan’s account of gender acquisition vis-à-vis the Oedipal stage, he secures the status of the phallus by naming the penis, an act that is already marked by sexual difference. Thus, by naming the penis the phallus, Lacan does not only constitute the male body as the central element in the organization of the social world: it also positions Lacan as the father who names, and thus controls, the meaning of the phallus.509 That is, Lacan imagines that his formulation of the phallus as a “pure” signifier of difference between having and being is descriptive of society, when it is an enactment of the very difference it signifies. Lacan believes his formulation of the phallus as non-natural and non-biological allows the maternal and parental roles to be “played by any number of possible persons of various sexes/genders.”510 Yet, Lacan claims that, by virtue of the penis, one is symbolized as having the phallus, thus securing the stability of both “masculine” and “feminine” morphologies.511 Thus, the phallus provides Lacan with gender certainty, proving that he assumes, albeit denies, a notion of the pre-existing sexed body. Lacan decouples the penis and the phallus, arguing the latter is neither a body part nor an imaginary effect, but rather is the privileged signifier of the symbolic. The phallus thus appears as the condition for signifiability. As Butler argues, in Lacan’s formulation of the mirror stage, “mirroring” is a signifying practice achieved through a synecdochal process: the experience of bodily fragmentation is overcome through an image of wholeness. The parts (of the body) come to signify the whole (of the body) at the occasion of their naming: “look at that beautiful boy.” 506 Colebrook, supra note 472 at 228. 507 Butler, supra note 466 at 72. 508 Ibid at 65. 509 Ibid at 84. 510 Johnston, supra note 465, s 2.3. 511 Butler, supra note 466 at 87. 112 This synecdochal process “institutes and maintains the phantasm of control,”512 experienced as a sense of “I” emerging from the coherent contours of a unified body. The body is an imaginary effect of this synecdochal process. Butler points out that by naming the penis as the phallus, Lacan performs this exact synecdochal process, in which the penis comes to signify not just the entire body, but the symbolic order itself. Further, his proclamation of the phallus as a privileged signifier produces and effects this very privilege. Thus, through this act of naming, the phallus, the symbolic, is neutralized and ratified. The phallus produces the image of the penis “to enact its vanishing, to reiterate and exploit its perpetual vanishing as the very occasion of the phallus.”513 Thus, the phallus provides Lacan with the gender certainty he presumes. This constant reiteration is descriptive of the administrative process of birth assignment, as will be further explored. Oren Gozlan further reveals the Lacanian presumption of gender certainty in its pathologization of transsexuality.514 He turns the pathologizing logic on its head, pointing out that everyone, not just gender nonconforming people, fight with the lack of coherence between the psyche and the body.515 Both trans and non-trans people suffer from dysphoric relations between their actual body and its collective imagination. Gozlan argues that the universal trait of the sexed body is that it is always transformative and in transit,516 that “there is never a complete knowledge of oneself, there is never a complete gender or a normal self.”517 Gozlan argues that dimorphic gender, the existence of only binary possibilities, simultaneously enacts and veils the anxiety embodied in realities of sexual differences.518 Sex/gender transition brings forward not only the constant lack of coherence, but also the reality of human experience of being in transition, despite our shared narratives of stability. 512 Ibid at 80. 513 Ibid at 89. 514 A term he used to denote gender diverse people who access medical technologies in order to affirm a gender performance which is not associated with their birth assigned sex 515 Gozlan, supra note 477 at 27–28. 516 Ibid at 1. 517 Ibid at 34. 518 Ibid at 20. 113 Gozlan pathologizes the pathologization of gender nonconformity within psychoanalysis, arguing that it reflects psychoanalysis’ futile attempt to construct an ‘origin story,’519 a theory of origin of sexuality. Gozlan understands transsexuality as transformation both at the level of the material body, and as a phenomenon that makes intelligible the transitional nature of sex and subjectivities more broadly.520 It is the heteronormative discursive insistence on “a univocal relationship between sexual difference, gender identity, and desire” 521 which represents an attempt to obliterate difference through differentiations. Instead, Gozlan suggests a “gradual shift from understanding the body as an object of certainty to encounter it as a site of enigmas.”522 Yet, Gozlan also seems to be trapped in the web of certainty. His position that gender- related body modification “belongs quintessentially to the transsexual subject whose process of ‘becoming other’ is marked on the body” remains limiting, for, even though it does acknowledge that the “motif of transitioning […] is universal,”523 it disregards the entire spectrum of gendered body modification used regularly by those who are considered cisgender.524 Any modification of bodies in relation to gender norms is a process of becoming other than what one thinks one’s self to be, not only when in alleged ‘opposition’ to birth-assigned sex. Moreover, he seems to be challenged by non-binary gender positions, considering them to be a failed attempt to “enjoy the paradox” of embodiment,525 a failure to take a position within the symbolic order. Gozlan, therefore, does not account, in the context of non-binary gender positions, for the ways in which 519 Ibid at 33. 520 Ibid at 1. 521 Ibid at 12. 522 Ibid at 31. 523 Ibid at 26. 524 Including, but not limited to, those which Spade describes with relation to insurance coverage. See: Spade, supra note 34 at 785. “For example, testosterones and estrogens are frequently prescribed to non-transgender people for a variety of conditions including hypogonadism, menopause, late onset of puberty, vulvular atrophy, atrophic vaginitis, ovary problems (including lack of ovaries), intersex conditions, breast cancer or prostate cancer, and to help prevent osteoporosis. Similarly, the chest surgery that transgender men often seek, removing breast tissue to create a flat chest, is regularly provided and insured for non-trans men who develop the common condition gynecomastia, where breast tissue grows in abnormal amounts. Non-transgender women who are diagnosed with hirsutism—where facial or body hair grows in abnormal amounts—are frequently treated for this condition with Medicaid coverage. In addition, reconstruction of breasts, testicles, penises, or other tissues lost to illness or accident is routinely performed and covered. Further, treatments designed to help create genitals that meet social norms of appearance are frequently provided and covered for children born with intersex conditions.” 525 Gozlan, supra note 477 at 44. 114 the symbolic is not stable at all. Further, this demarcation of non-binary and binary gender nonconforming positions is doomed to resort to gender certainty. This oversight in Gozlan’s formulation is surprising because his intervention as a whole seem to be conferring, from a psychoanalytical point of view, that bodies are not ahistorical and apolitical, but that their very materiality is “bound up with signification from the start.”526 Gozlan offers an expansion of the classical pathologizing discourse on trans desire, which is limited to a narrative of being “trapped in the wrong body.”527 Instead, Gozlan can be read as suggesting that all subjects are trapped in a sexed body by the psychic process of gender acquisition. I go further, and use these insights to understand the ritual of birth assignment as an attempt of the administrative state to resolve its own anxiety of gender indeterminacy. In what follows, I suggest that birth assignment of sex attempts to construct an ‘origin story’ for its own identity as a space in which coherent and stable sexed bodies and gendered subjects exist. I will read birth assignment as the Oedipus complex of the administrative order. The Ritual of Birth Assignment The ritual of birth assignment is a primary site for the legal construction of the sexed body. The above discussions on gender acquisition attempted to account for the relation between conscious self-awareness, the sexed body, and societal structures. Birth assignment of sex manifests these interrelations in explicit ways. It is a ritual in which visible genitals are turned into differentiated legal status, that is, into privilege or lack thereof.528 As indicated, historically, birth assignment of sex literally marked those who had the phallus and those who were the phallus. The legal status of “male” entitled men to have property, and the legal status “female” designated women as property of men in European legal systems, as well as in those systems created according to European norms. As also noted, the existence of differentiated legal status today sustains a separate and thus not equal regime which continues to relegate those assigned F to a condition of inferiority. The employment of the phallus and 526 Butler, supra note 466 at 30. 527 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 383. 528 Judith Butler, Gender trouble (routledge, 2002) at 59. 115 inferiority complex are not abstract psychoanalytical concepts when it comes to legal sex classifications, they are the preconditions for becoming a legal subject. Birth assignment converts anatomically visible difference into citizenship statuses, turning genitals into gender identity. It is the administrative process of gender acquisition. Turning the penis into the phallus regulates the embodiment of privileges and regulation of gender expectations vis-à-vis the public registrar. As Spade argues, rules related to government gender classification do not simply discover and describe maleness and femaleness, but instead produce two populations marked with maleness and femaleness as effects and objects of governance[...] The production of these categories produces gendered conditions of existence that distribute various chances at health, security, insecurity, life and death unequally.529 The material facts of external genitals do not have independent meaning outside this production of signification. As indicated, external genitals are a criterion that is scientifically insufficient to conclusively determine biological sex, if that is even possible.530 More pointedly, none of the known sex characteristics, including genitals, can scientifically predict a specific gender identity.531 External genitals only function as an all-powerful indication about who babies are (male or female), what they will become (men or women), and what social function they will play (mothers or fathers), because they are available for differentiation. External genitals are, in fact, the only visible sexual difference between newborns who have no other visible sexual characteristics, as they either appear later in puberty or are internal. Their visibility makes them an appealing site for signification, as Stuart Hall notes regarding the effect of skin colour with respect to racial inscriptions.532 Hall argues that the visibility of skin colour is exactly what makes it such a convincing signifier: It allegedly denotes immutable truth because, unlike genetics, humans can perceive such difference with their senses. Thus, they assume that it must reflect some inner (genetic) truth of the body that goes beyond what the eye 529 Spade, supra note 34 at 731. 530 See infra note 375. 531 See infra note 376. 532 Stuart Hall, Race: The floating signifier (Media Education Foundation, 1996) at 13–14. 116 can see.533 The more distinctively visible the surface difference, the more invisible juridical inscriptions embedded in the act of classification become. The effect of birth assignment, sex classification, is evidence of the administrative investment in simultaneously signifying difference and hiding differentiations. It is an apparatus for demarcating the contours of the sexed body as an effect of collective imagination. What is assigned at birth is a symbolic order that operates through a set of imaginary effects, M/F, that denies their status as both imaginary and effect. M/F become naturalized and reified as the law of signification, expressed through gender identification. M/F appear as a legal regime through the transfiguration of the imaginary, by naming external genitals as M/F. Birth assignment of sex is more about differentiation and signification than about signifying pre-existing difference. Constituting the penis and the vulva through the enactment of M/F positions sexed bodies as a causal principle in the delegation of legal status. For the baby to be registered, to be recognized as existing by the state, omnipotent status must first be conferred upon their visible genitals. Before the baby can become anything, it first must be labelled as a certain stable thing. The baby’s external genitals are observed, they are then bestowed signification by categorizing them as belonging to one of two complementary binary categories that compose the notion of sex. Much like in Lacan’s mirror stage, the genitals are demarcated from the whole of the body, and through signification they come to represent the contours of the now sexed body as a whole. The signified external genitals, now turned into a sexed body, are given differentiated legal status, and recorded on the public registrar. At this moment, the genitals forever disappear and only the privileged legal status, or lack thereof, remains. The ritual of birth assignment functions along the line of the Lacanian repetitive act of separating of the phallus from the penis. The phallus reiterates and exploits the perpetual vanishing of the penis as the very occasion of the phallus,534 i.e., the occasion for distribution of differentiated status. Birth assigned sex, much like the Lacanian phallus, presumes what it allegedly signifies. The penis is synecdochally replaced by the category ‘male’ that comes to 533 Ibid at 14. 534 Butler, supra note 466 at 89. 117 signify a stable and coherent sexed body which is expected to develop masculinity, to identify as a man. It is the act of naming the penis as male that produces and effects this privilege signification. In the act of naming, of assigning sex, differentiated legal status is naturalized and reified. A differentiated sex category, M/F, marks the baby’s body prior to its legal marking, staging, in advance, the legal position which will mark it, “and it this latter ‘mark’ which appears to postdate the body, retroactively attributing a sexual position to a body.”535 Marking of the baby’s body, in the act of observing their genitals and proclaiming the body as M/F, constitutes the legal condition through which their body becomes signifiable at all. However, the body becomes signifiable as M/F by being marked before that as M/F.536 Thus it seems that there is no legal sexed body prior to its marking. In fact, when genitals are considered “incoherent,” as in the case of intersex babies, they are either legally designated as ‘others,’ or more commonly are subjected to medical procedures in order to make their bodies fit within the categories of M/F as a precondition to designation of legal status F/M.537 Birth assignment of sex allows for simultaneous control at an individualized and population level. Stability is achieved by fixing the transient body to a certain meaning, at a certain time and place, creating the administrative fetish-object called sex classification. While self-identification laws or other schemes of sex reclassification later allow individuals to refuse the position that has been allocated them, they are, much like in the Lacanian Oedipal scenario, unable to deny the knowledge of it. Positioned in relation to the sexed body, reclassification is unable challenge birth assignment as a scheme. As I will further explore, individualized abnormalities can be absorbed by the apparatus of birth assignment insofar as its coding of a certain symbolic order that operates through the imaginary effect of the body remains intact. The psychoanalytical reading of birth assignment of sex reveals “the ways in which classification systems, and the things they classify, mutually constitute each other.”538 Still, birth assignment is not a singular act but rather a repetitive ritual the administrative state repeats with 535 Ibid at 97. 536 Ibid at 98. 537 Holzer, “Sexually Dimorphic Bodies”, supra note 43 at 98–100. 538 Spade, supra note 34 at 745. 118 every registration of birth. What confers ontological truth on the penis-turned-phallus is the ritual of birth assignment and the continuous practice of publicly registering it, extending over at least 200 years. Birth assignment allows the administrative state to hold onto coherent and stable notions of itself as the regulator of life by reproducing the public registrar of sex. Birth assignment is the repeated administrative act of gender performance, it charges sex designations on public documents with alleged pre-legal meaning and the sexed body itself with alleged pre- social signification. To further unpack the truth-making power of this ritual, I will now describe birth assignment in terms of performativity. Administrative Gender Performativity Judith Butler’s work on gender performativity has been widely criticized for focusing on the discursive and not on what is material and extra-discursive. I will briefly address these critiques and Butler’s reply to them. 539 Butler’s work is still the most extensive attempt to bridge Foucault’s theory of power and psychoanalysis.540 Further, taken up to reflect on actual legal arrangements, performativity emerges as a theory of materialization, a way to account for how differentiated legal status is inscribed on bodies as a marker for allocation of life chances. Performativity is, therefore, up to the task of articulating the administrative psyche of birth assignment in terms of distribution of power. My analysis of administrative gender performativity will use a simplified version of Butler’s analysis of gender performativity. Briefly, what the Butlerian analysis points out is the falseness of the social-symbolic deductive process: When you see someone’s presentation (their clothes, hair style, diction, how they take up space, etc.) you assume that performativity is an indication of a specific “sex,” and that “sex” correlates to “gender identity,” which in turn indicates “gender presentation.” Butler argues, following Derrida, that there is no true “origin” that is represented, but that performativity is what constitutes “sex” as an origin from which 539 Though I wonder if they would be as legible now as in the 1990s, given the heterogeneous shape and forms trans intelligibility has taken over the past 30 years. 540 I thank Dina Georgis for this comment. 119 gendered acts flow out to the public body. In this sense, gender attributes and acts are “the various ways in which a body shows or produces its cultural signification.”541 When we walk down the street, we do not stop and check the genetic makeup of the people we encounter, rather, we note their gender markers, their speech, dress, style of hair, and other measures. Because of these markings, we assume that they are women or men and have vulvas or penises, signifying that they are female or male. These signifiers are constituted by behaviours we imitate repeatedly, and it is the imitation that makes them coherent, i.e., readable from the outside as an identity. 542 These signifiers are all we can perceive. We have no knowledge of people’s “biological sex” outside gender signifiers. Hence, there is no independent meaning to “sex” outside gender performativity.543 We are always looking at an imitation of an imitation, and this constant imitation is what constitutes “sex” as ontological. 544 Gender performativity drives the woman’s self-identification as such, and fuels our identification of her. Gender performativity is less about social construction and more about the stabilizing of a social symbolic order. Performativity is not a matter of fashionable choice, or an act of a self- determining subject: “there is no subject who decided on its gender[…] gender is a part of what decides the subject.”545 According to Butler, gender is constructed through relations of power manifested in normative constraints that produce and regulate the subject.546 Performativity in this context should be understood as “the reiterative and citational practice by which discourse produces the effects that it names.”547 For Butler, sex is not a static condition of the body but rather a process in which regulatory norms materialize sex, as difference, through performativity. Sex is one of the norms that “qualifies a body for life within the domain of cultural intelligibility.”548 541 Butler, supra note 528 at 192. 542 Ibid at 180. 543 It should be noted that Butler clarifies that even though gender is performative, it is not a role one can take on or reject at any point. Behind the imitation there is no free-willed subject, but rather, what makes a subject is the ability to have coherent performance, accessible only through the imitation process. 544 Butler, supra note 528 at 178. 545 Butler, supra note 466 at x. 546 Ibid. 547 Ibid at 2. 548 Ibid. 120 However, it has been argued that looking at sex or race as free-floating signifiers, as deeds without doers, has had the effect of making invisible real-life experiences of racism, xenophobia, sexism, and transphobia.549 Arguing that bodies are discursively produced means they only exist as a medium through which social meanings are produced. Actual people and actual bodies, that is, certain people and certain bodies, are still targeted daily in a very material way for their very materiality. Identity categories help locate the bodies that are exposed to the most harm. For instance, the category ‘trans woman of colour’ pinpoints a site of extreme differentiated distribution of precarity. Performativity does not negate materiality. It would be more accurate to say that bodies are deeply relational, and that their characteristics, abilities, and aspirations are always already nesting in the social context in which they operate. 550 Taken back to the ritual of birth assignment of sex, it is clear that the sexed body, as a figment of collective imagination, functions as a precondition for legal subjectivity. One is forced to accept the ‘right’ contours of the sexed body and the gender expectations associated with it if one is to participate in public life. The trans woman who fails to pass is no less real or fake than the non trans woman identified as such, her body is in no way less right or more wrong. The difference is that in the former case, the imitative nature of gender is revealed. As mentioned, the extreme precarity allocated to those whose gender performativity is incoherent or inconsistent with their legally classified sex is evident of the power of normative constraints on all people. More importantly, it is not the gender performativity of individuals that I am interested in, but that of the administrative state. Through administrative gender performance, the state constitutes its own identity as the administrator of life, as the site of control for the social body, governing the category of sex and other normative constraints that make up a given symbolic order. The administrative state’s story of itself is of a stable sphere where coherent binary sexed bodies exist, where ‘biological truth’ inscribed on external genitals indicates sex out of which gender can be expected to naturally flow. According to this story, birth assignment merely documents these facts marked on the 549 Prosser, supra note 35 c 1. Bell Hooks, “Postmodern blackness” (1990) 1:1 Postmodern Culture, online: 121 body. The sex category is understood as reflective of ontological stable truth that the state records at birth, the starting point of individualized life, in order to manage life at large. In this story, the administrative state does not differentiate between subjects, but rather regulates difference. Yet, as I argued, the ritual of birth assignment is not about bodily truth, it is about truth- making.551 In this process, sex becomes a causal principle for the delegation of legal status. The ritual is not rooted in any pre-administrative truth about bodies or selves or about the characteristics and abilities that arise from certain bodies or selves. Rather, it demarcates bodies and binds them to differentiated legal status. The differentiated status is stabilized through the classification of all legal subjects as M/F on the public register, which is given the status of prima facie proof of their accuracy. The external genitals themselves are markers whose significance is performed in the act of assigning sex. The ritual in which genitals are transformed into a privileged position, or lack thereof, is the ritual the state repeatedly imitates with every registration of birth. It is a ritual that has no origin, an imitation of an imitation. This repetitive imitation constitutes sex as ontological truth represented by the sex classification on public documents. Birth assignment is not the documentation of logical facts, but the psychic process through which the state constitutes the sexed body, a figment of collective imagination, as the privileged signifier of legal subjectivity. In the Butlerian scenario, the gender identity of the individual is constituted through external signifiers, through gender performance. Here, it is the identity of the administrative state itself as a normalized society centred on life which is constituted by the administrative gender performance of birth assignment. Stabilization of the symbolic order of gender is achieved by the apparatus that supposedly records its pre-existing stability. Butler exposes the paradox by which sex charges gender with meaning and vice versa, revealing the instability of both. In the same vein, the legitimation of birth assignment comes from the narrative the state tells itself, a collective fantasy to which all are subjected. Still, it is through birth assignment that this narrative is repeatedly generated. As much as Butlerian gender performativity is an ongoing project which we must keep generating, so is birth assignment. If 551 Spade, supra note 34 at 747. 122 the state would stop assigning sex at birth, the administrative binary of M/F would be revealed, in the administrative sense, to be unstable, contingent, and mutable. Consequently, we would finally have to ask: does the classification female have the same significance in the context of parental duties, or gender-segregated spaces, or affirmative action? What independent significance do sex classifications have outside the normative contracts that structure public life? Prospect in Ending Birth Assignment Butler brings to light the phallocentric presumption of Lacan’s symbolic order. She finds that “the phallus has no existence separable from the occasions of its symbolization; it cannot symbolize without its occasion,” 552 suggesting a possibility for alternative imaginary identification (of the very contours of the body, the delimitation of anatomy).553 Butler invites her readers to consider the phallus as “an arm, a tongue, a hand (or two), a knee, a thigh, a pelvic bone, an array of purposefully instrumentalized body-like things.”554 Butler hypothesizes that there is a possibility to intervene in the signifying chain between the phallus and the penis, toward a “displacement of the hegemonic symbolic of (hetero-sexist) sexual difference.”555 If we follow Butler’s incitement of the potentiality of subversive reiterations to reconstruct the sexed body, does it mean that ending birth assignment of sex would end sexism? Anti-trans violence? Forced gender normativity? Looking to the parallel case of racial classifications, the answer seems to be no. Frantz Fanon, like Butler, also dreamt of alternative imaginary identification for Black men, for a better story than the “distorted colonial thinking that underlines racialized masculinity.” 556 Fanon also employed the Lacanian formulation of the phallus as the differentiating apparatus for the distribution of privilege. Fanon positions the Black man, alongside the (white) woman,557 as those who are forced into being the phallus, the Other for the white man’s desire. Fanon viscerally described how the Black man is reduced to being the penis 552 Butler, supra note 466 at 90. 553 Ibid at 91. 554 Ibid at 88. 555 Ibid at 90. 556 Georgis, supra note 338 at 71. 557 Ibid. Georgis notes that Fanon (like Lacan) is not troubled by the positionality of women of colour. 123 in the white man’s imagination of a potential sexual encounter between the Black man and a white woman.558 Reduced to a penis, the Black man suffers from an inferiority complex and is “subjected to the tyranny of a symbolic order that dehumanizes the men of colour.”559 Fanon shows that racialization is also marked in and through the sexed body. While the Lacanian analysis limits the possibility of having the phallus to the penis, it is indeed more generative in the forms that being the phallus might take. Or rather, the Lacanian phallus is not only bound up in relation of identity to any penis, but rather situated within colonial histories: it is synecdochal to the white penis. In this sense, being the phallus might be symbolized by black and brown skin rather than genitals. Indeed, when thinking of public registrars, one must account for two facts. First, that prior to public registrars in Europe, registrars were already employed in the colonial world to police and control indigenous and enslaved communities.560 Second, that mere inclusion within a public registrar was a racial marking. In the US, racial categories were standard in many public registrar systems until the civil rights movement challenged them in court, believing that racial equality would not be achievable as long as race was assigned and tracked by the state.561 Cassius Adair has argued that the foundational aim for the expansion of identity documents in the US in the 20th century was maintaining racial purity alongside the “gender and sexual policing in which it is inextricably linked.” 562 Race and sex differentiations are mutually constitutive in the sense that “the inscription of fixed racial markers […] on documents of everyday life undergirds the presumption that male and female are vital data with legal status.”563 558 Fanon, supra note 468 at 130. 559 Georgis, supra note 338 at 71. 560 See for examples for the registration of sex and colour: An Act for Registration of Slave Population in Berbice (1817); Act of Assembly of the Virgin Islands (1817); An act for more fully ascertaining the Slave Population of the Island of Barbados (1817); An Act of complete Registration of Slaves in Bermuda (1820), all can be found in: John Henry Howard, The Laws of the British Colonies, in the West Indies and Other Parts of America, Concerning Real and Personal Property, and Manumission of Slaves: With a View of the Constitution of Each Colony (W.H. Bond, 1827) Google-Books-ID: RmFGAAAAYAAJ. 561 Bernard Schwartz, The Warren Court: A Retrospective (Oxford University Press on Demand, 1996) at 23–24. 562 Adair, “Licensing Citizenship”, supra note 85 at 570. 563 Ibid at 572. 124 In Canada, race is still assigned insofar as the Indian Registrar assigns “Indian Status” generally to those who have at least one parent with Indian status.564 The Indian status has a history of encrypting its deployment of gender in the service of racial purity. Indian status was deprived of women who married non-status men, as well as from their children and grandchildren, up until 1985.565 Even after the Indian Act was revised, it retained discriminatory power through “hierarchies of Indian status, unstated paternity, and the legitimization of patriarchy through band membership codes.”566 Israel currently assigns race at birth to all newborns, albeit indirectly. Among the data recorded in the Israeli public registrar, such as name, religion, sex, and birthdate, ‘nationality’ is also recorded.567 The nationalities of all those born to Jewish women is recorded as ‘Jewish,’ while those born to Palestinian men (Christian and Muslim) are recorded as ‘Arab.’568 This deployment of ‘nationality’ as distinct from citizenship status makes it synonymous with ethnicity. Jewish society in Israel is ethnically heterogeneous, with a majority of Jewish citizens being second-, third- or fourth-generation immigrants from the Arab and Muslim world.569 Through the assignment of “nationality” and the deployment of the category “Jewish,” race and ethnicity are produced as coherent under Israeli law. This construction of the collective “Jewish body” is deployed through the parental sexed body. In 2002, nationality was removed from the Israeli Identification cards after the Israeli High Court of Justice ordered the state to register as Jewish those had been converted by non- 564 Government of Canada; Indigenous and Northern Affairs Canada, “Are you applying for Indian status?”, (9 May 2016), online: 125 orthodox institutions.570 Racial profiling of Palestinians was not the motivation of this change, nor was it significantly affected by it,571 much like the removal of race classification from identification cards in North America did not have a significant impact on systemic racism.572 The past and present of racial classification is not an indication that sex classification should continue. Instead, the history and current function of race classifications and their interdependency on sex classifications reveal an ongoing attempt to control assemblages of interwoven indeterminacies “that merge and dissipate time, space, and body against linearity, coherency, and permanency” 573 to tame indeterminacy through rationalized centralized data collections (and production). Legal classification is thus a speciating technology aimed at eradicating administrative anxiety embodied in realities of (sexual) difference,574 in which the deployment of identity “as a liberatory political category becomes a technology through which dominant actors […] obscure and thus reproduce the structural working of power.”575 Assignment of legal status at birth is an effect of state power to individuate, to constitute the legal subject as an ahistorical autonomous individual. “One is not born an individual” but rather emerges as such in process of individuating.576 Thus, assignment of classification, including race, sex, and nationality at birth, traps all legal subjects into bodies, but some are trapped in the wrong body. The Eugenics Strike Back Administrative gender performativity fuels the state’s self-identification as an historical time and place where coherent and stable sexed bodies and gendered identities exist. The reiterative and citational practice of birth assignment produces the sexed body as the effect that it names, as a :he Knesset Constitutional Committee] ועדת חוקה: סעיף הלאום ימחק מתעודות הזהות“ ,Avishay Ben-Haim 570 Nationality Will Be Erased from Identification Documents]”, Ynet, online: 126 discourse, as a figment of collective imagination. Assignment of sex demarcates the body along strict propriety lines, transforming bodily attributes into innate truth, into gender identity. One is expected to present themselves in ways that represent their genitals, and is punished harshly for failing or refusing to do so. Legal subjects are presented with the non-choice of either following the rules of differentiation and adhering to the gender expectations associated with the collective imagination of the sexed body, or with unbecoming a citizen.577 Escaping the disciplinary enforcement of this population-wide mode of governance necessitates a negation (or a desire for negation) of the body as wrong. A right to self- determined gender identity, implemented mostly as a right for membership within a pre-defined legal sex category, is justified not by repudiation of the objectivity of the sexed body, but rather by relying on the idea that the subject is constructed by its conscious positions. Innate gender identity is affirmed by the law through a self-proclamation of incongruence with birth assigned sex. One is allowed the present themselves as if they have other genitals than those with which they were born insofar as they self-identify through a desire to have different genitals, through an articulation of their body as wrong, affirming that other bodies are right. Sovereignty afforded by self-identification of gender is thus circumscribed by the ongoing administrative performativity of birth assignment. In effect, a right to gender identity solicits a negation of the body (or a desire for negation), promising that self-identified legal subjects are only marginally accepted into the categories of male and female. For in fact, self-identification of gender identity exposes its limitation precisely when individuals challenge this negation, and specifically the negation of genitals. Nowhere is this more evident than in the issue of parental designations. Many self- identification laws, starting with the Argentinian gender identity law, limit the right to gender identity in relation to parental designations. Those who reclassified their sex to M are prohibited from becoming fathers and those who reclassified their sex to F are barred from becoming mothers. The drive to sterilize trans and gender nonconforming people has also moved from the body to the self. One is no longer required to be sterilized as a precondition for recognition, but 577 Cossman, “Sexual citizens”, supra note 349 at 295. 127 self-determined gender identities can only indicate a sterilized ‘real’ sex. The eugenic zeitgeist animating the historicity of the public registrar of sex classification and the eugenic legacies (and ongoing realities) of sex reclassification policies return as a neo-liberal imperative for self- governance. 578 In the guise of neo-liberal self-actualization, the speciating violence of birth assignment, constructing trans and non-trans, like men and women, as ‘biologically’ different, is inscribed again in reproductive terms. Though administrative gender performativity promised to solve the Oedipus complex of the administrative state, and though self-identification was meant to ensure the self-discipline of those undisciplined gender outlaws, immanent desire in the excess of law keeps reproducing.579 Trans and gender nonconforming people have always used their bodies to reproduce, but are now more than ever doing so after they have reclassified their sex. Turning to human reproduction as the site of both quintessential biopolitical rationales and the provenance of untameable trans bodies, the next chapter turns to the legal recognition of trans parents. 578 Ibid at 293. 579 Georgis, supra note 338 at 150. 128 Chapter 4 Parents Introduction In 2008, Thomas Beatie became a worldwide sensation when he publicly revealed his pregnancy in an article published on the LGBTQ website Advocate.com, accompanied by a now-iconic photo of his pregnant body. Beatie was quickly labeled “the first man to give birth.”580 For his media engagements and for challenging the masculinity of trans men, Beatie was ostracized by US trans communities.581 Years after the media blitz subsided, it was precisely this act of giving birth that challenged Beatie’s legal status as male. In 2003, Beatie, who identified as a transgender man, reclassified his legal sex from Female to Male on his Hawaiian birth certificate.582 That same year, he married his wife Nancy in a traditional Hawaiian ceremony.583 After he reclassified his sex, Beatie gave birth to three children and in 2014, the couple, who by that time have moved to Arizona, sought to divorce. The family court in Arizona, however, declared that it lacked subject-matter jurisdiction because the marriage was between “a female [Nancy] and a person capable of giving birth,”584 deeming it a same-sex marriage in the eyes of the court.585 The Arizona Supreme Court would overrule that decision, finding that Beatie’s sex reclassification had been legal in both Hawaii and Arizona, even though he was still able to bear children.586 At the time, to change gender designation on birth certificates, both jurisdictions demanded proof of medical intervention on the sexed body, but did not insist on genital-related 580 Though it is highly questionable that that is actually the case, as trans men have been using their bodies to reproduce privately before (see: Paisley Currah, “Expecting bodies: The pregnant man and transgender exclusion from the employment non-discrimination act” (2008) 36:3/4 Women’s Studies Quarterly 330–336 at 331; Judith Halberstam, “The pregnant man” (2010) 65:1 The Velvet Light Trap 77–78 at 77. 581 Thomas Beatie, Pregnancy in the Limelight (Leeds, UK, 2020). 582 Beatie v. Beatie, 235 Ariz. 427, 430, 333 P.3d 754, 757 (Ct. App. 2014)(USA) [hereinafter the Beatie Case] 583 Id at 756. 584 Id. 585 Id at 754. 586 Id at 760-761. 129 surgery.587 While sterilization was not a prerequisite, Beatie, like other people of trans and non- binary experience, was still expected to give up the desire to become a parent and was certainly not expected to use his body to fulfill that desire. These reproductive expectations encoded into the categories “mother” and “father,” and their interrelation with the gendered expectations encoded in the categories of M and F, are what is at stake in legal recognition of trans parents. The Arizona Supreme Court did assert that Beatie was registered on his children’s birth certificate as a father and his ex-wife as the mother.588 However, in 2009, Beatie shared with the media that at first he was designated as the mother and his ex-wife as the father. When the couple objected, both designations were changed to parent, as done with same-sex couples in domestic partnership. Beatie insisted that he was married and should be treated like any other heterosexual man. He asked the ACLU to take his case, but was rejected.589 I wondered how Beatie had ended up a father in the Arizona court five years later. I emailed him, and this was his reply: Immediately after giving birth, Vital Records for the State of Oregon listed me as Mother and Nancy as Father for the birth certificate. Days later, they changed it on their own to “Parent/Parent.” I was told that, internally, this document was used for female same-sex couples. Essentially, the day after I gave birth, I hired an attorney to change the birth certificate to list me as Father and Nancy as Mother. I don’t recall how long it took to get the final Court Order awarding us those designations, but it wasn’t too long… maybe a couple months. Both I and Nancy had to adopt our child. In effect, Thomas the man adopted a baby from Thomas the woman. Of course, it doesn’t make any sense since I am the same person and had the same legal designation as male the whole time. The Court Order also insured that Social Security had to 587 Id at 758-760. 588 Id. 589 A B C News, “Exclusive: ‘Pregnant Man’ Gives Birth to Second Child”, online: ABC News 130 honor me as our baby’s father on internal records. I did this for each of my 3 children I gave birth to. [Italics added] 590 Beatie’s story encapsulates almost all of the different forms of resistance to trans parents’ appeals for recognition explored in this chapter: trans men who are as designated as mother because they gave birth; women designated as fathers because they did not give birth (although Beatie’s ex-wife is cisgender); trans parents attempting (and failing) to be registered as parents; parents who are forced to adopt their own children from themselves; and finally, in all cases to be to reviewed, trans parents’ gender identity and sex reclassification become suspect in light of their parenthood. Looking at trans parental designation cases, I will demonstrate how the law is anxious about the reproduction capabilities of trans, non-binary, and other gender nonconforming people, and how these capabilities are both perceived and managed by the administrative apparatus of sex classification. The mutability of sex classification afforded by reclassification policies is questioned when the actual reproductive capabilities of trans bodies clashes with the reproductive expectations attached to those bodies. These realities contradict “the visual norms of gendered embodiment that form part of the routine functioning of the social body.”591 From this clash, legal beliefs in immutability of bodies reemerge. This is a battle of sovereignty over gender and over the court’s distinction between right and wrong bodies. The Beatie case, and other related cases discussed in a variety of jurisdictions and legal systems, all show that challenges arising from trans parents’ demands for recognition reflect an investment in stabilizing the category of sex and the subsequent binary categories of “mother” and “father.” The cases present lived realities that question the legal urge to foremost, albeit not exclusively, define maternity through the act of giving birth and paternity based on declaration and/or by virtue of affinity to the “mother.” Trans parents’ legal demands challenge the premise that assigned sex and parental designation follow one another, and question the assumption that both reflect extrajudicial truth. 590 E-mail from Thomas Beatie (July 28th, 2020) (on file with author). 591 Stryker & Sullivan, supra note 50 at 59. 131 The issue at stake is not limited to cases of reproduction post-transition.592 People of trans and non-binary experience that became parents before or after the reclassification of their sex have encountered similar barriers to achieving legal recognition of the familial relationship between themselves and their children. As laws and policies requiring gender nonconforming people to undergo medical procedures that can cause infertility are replaced with awareness of trans fertility, and active efforts at its preservation (in those cases where medical transition may threaten fertility), parental recognition becomes an acute issue for trans law. 593 Lack of recognition can place trans and non-binary people who have children in precarious positions, questioning their legitimacy as parents and exposing their children to anti-trans violence and discrimination. Where the law refuses to accept their lived realities, it labels trans parents as others and subjects their kinship to suspicion by authorities and society. The law positions trans parents as deceivers and pretenders, affirming the realness of other parents. The first part of this chapter will explore the theoretical stakes of legal recognition of parenthood of trans and non-binary people. I will argue that the law’s resistance to trans parents’ demands for recognition reflects the gender dysphoria of the administrative state, and will explore this idea in relation to the ‘wrong body’ narrative and the performativity of parental designations. The second part of this chapter will review cases dealing with trans parents’ demands for legal recognition of their parental roles. I will explore three interrelated themes appearing in these cases: discourses on biology, ideas of the child’s best interest, and state’s desire for coherence and stability. Finally, I will argue that trans parental designations are less about practical limitations of family law and more about governmentality. I will account for the 592 Not just for trans parents. For the profound meaning which parental status plays in forming our identity and personhood see: John A Robertson, “Liberalism and the Limits of Procreative Liberty: A Response to My Critics” (1995) 52 Wash & Lee L Rev 233 at 236. 593 As was presented in Chapter 1. For instance, while all Canadian jurisdictions used to require trans people to undergo genital surgery as a precondition for legal recognition, this practice has now been completely abandoned. Furthermore, while international medical standards, such as the Standards of Care [SoC] by the World Professional Association for Transgender Health, previously mandated that trans people undergo genital surgery, these standards now recognize a variety and medical and social paths for gender affirmation, see: Eli Coleman et al, “Standards of care for the health of transsexual, transgender, and gender-nonconforming people, version 7” (2012) 13:4 International journal of transgenderism 165–232.). In the 25th symposium of the WAPTH, held in October 2019 in Buenos Aires, it was announced that in the upcoming version of the SoC, an extensive chapter on fertility care will be added. 132 forms of governmentality arising in the cases reviewed by examining critical theory on family law, futurity, trans bodies, and the postcolonial self. Theoretical Stakes, or, Another Take on Performativity Proper Identification Documents Trans and non-binary parental designations have received limited attention in legal and academic writing, 594 at times serving as anecdotes or abstract theoretical parables. 595 Most questions relating to family law arise in the context of trans youth, and trans parents are more frequently discussed in relation to custody and access claims.596 It is estimated that about 25%-49% of trans identified people are parents; the majority of them are trans women, with greatest prevalence of parenthood among non-white trans women.597 The issue of parental legal designations affects a significant percent of trans people, and lack of recognition can be detrimental and even dangerous for parents and children alike.598 Legal recognition of trans parents is a hot topic. Trans parental appeals currently await a decision in the European Court of Human Rights (the ECtHR), the UK High Court of Justice, 594 Some recent writing has started addressing these issues, see: Currah, “Expecting bodies”, supra note 580; Sheelagh McGuinness & Amel Alghrani, “Gender and parenthood: The case for realignment” (2008) 16:2 Medical law review 261–283; Lara Karaian, “Pregnant men: Repronormativity, critical trans theory and the re (conceive) ing of sex and pregnancy in law” (2013) 22:2 Social & Legal Studies 211–230; Laura Nixon, “The right to (trans) parent: a reproductive justice approach to reproductive rights, fertility, and family-building issues facing transgender people” (2013) 20 Wm & Mary J Women & L 73; Chase Strangio, “Can Reproductive Trans Bodies Exist” (2015) 19 CUNY L Rev 223; Dunne, “Legal gender recognition in Europe”, supra note 34; Julian Honkasalo, “Unfit for Parenthood? Compulsory Sterilization and Transgender Reproductive Justice in Finland” (2018) 20:1 Journal of International Women’s Studies 40–52. 595 Darren Rosenblum et al, “Pregnant Man: A Conversation Essay” (2010) 22:2 Yale JL & Feminism 207–278. See specifically, Darren Rosenblum at 215 and Gutierrez and Hernández-Truyol at. 231 and 233. 596 There are indications of severe bias toward trans parents in access and custody cases in Canada and the US (see: Jake Pyne, Greta Bauer & Kaitlin Bradley, “Transphobia and other stressors impacting trans parents” (2015) 11:2 Journal of GLBT Family Studies 107–126 at 109; Sonia K Katyal & Ilona M Turner, “Transparenthood” (2018) 117 Mich L Rev 1593 , s II. For instance, see the current appeal to the European Court of Human Rights by a Russian transgender woman who had been deprived contact with her children post-transitioning on the account that she will expose them to “non-traditional sexual relations” (see: Statement of Facts in A.M and others vs. Russia App Nos 47220/19 (Sep 4th 2019) [ECtHR]). 597 Myrte Dierckx et al, “Families in transition: A literature review” (2016) 28:1 International Review of Psychiatry 36–43 at 2. Though the US-wide trans survey of 2015 reports a rate of 18% (see: James et al, supra note 58 at 67. 598 Centre for Gender Advocacy c. Québec (Attorney General), 2015 QCCS 6026 (CanLII)[Canada], Plaintiff Argument Plan [hereinafter Centre for Gender Advocacy] at §16, 275, 300 and 302 (further implications are provided under the section of this chapter titled “the child best interest”). 133 The German Constitutional Court, the Israeli Supreme Court, and the Superior Court of Quebec. Legislation and policies related to trans parents have been introduced in recent in years in the Netherlands,599 Belgium,600 Sweden,601 Ontario,602 Israel,603 and Quebec.604 Only Sweden has so far explicitly recognized parental reclassification;605 other jurisdictions, even those that allow self-identification,606 i.e., even those that allow people to change the gender on their identity documents without proof of medical intervention, directly forbid parental designation reclassification.607 The resistance to trans parents’ demands for recognition is also expressed in a series of recent legal decisions to be reviewed in this chapter. Susan Boyd has demonstrated a gender-neutral trend within regulation of parenthood, in the sense that the legal duties and obligations conferred on mothers and fathers are becoming less 599 The 2014 amendment to the Dutch civil code (Art. 1:28 para.1 BW)(Neth.), known as, “Transgenderwet”, has deleted the requirement that those seeking sex reclassification must be sterilized. However, it also introduced a new limitation on reclassification (Art. 1:28C para.3 BW)(Neth.), which states that if a person has children post reclassification, they will still be considered as the sex they were assigned at birth. 600 The 2018 amendment to the Belgium civil code (Atr.62b CODE CIVIL- [C.Civ.]) allowed for sex reclassification based on self-declaration. The amendment states that, with respect to children born after sex reclassification, the provision relating to mother and fatherhood in the civil code should be read in analogy, with respect to all other sections of the civil code relating to filiation, should be read as relating to the new sex. 601 Following an administrative court decision to be further discussed, on January 1st 2019, new legislation came into force titled “ Modernare regler om assisterad befruktning och föräldraskap” [Modern rules on assisted conception and parenting] which allowed for recognition of trans parental designation, including of registration of a single parent who gave birth as a father (see: Regeringens proposition 2017/18:155 at p. 56-57 available at: https://www.regeringen.se/rattsliga-dokument/proposition/2018/03/prop.-201718155/). 602 In 2016, the Ontario legislature passed into law the All Families Are Equal act, which degendered Ontario family law. Among other changes, the law allows for parents to choose their own parental designation as Mothers, Fathers or Parents. (see: All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23 - Bill 28)). 603 See HCJ parents transcript, infra note 670. 604 Following a lawsuit which will be further discussed, since February 2019, it is policy of the Quebec Directeur de l'état civil to automatically change parental designation of minor children of people who reclassify their sex (see: Le Directeur de l’état civil l’informatique service de, “Change of sex designation”, online: 134 distinguishable.608 Nevertheless, binary designation of mothers and fathers still exists in all jurisdictions mentioned in this chapter (and, seemingly, in the vast majority of jurisdictions worldwide), much like the categories male and female. Gender-neutral parental designation exists only in a minority of jurisdictions, 609 and most are reserved for same-sex headed families.610 Most of the trans parents mentioned in this chapter who have attempted to claim either binary or gender-neutral parental designations that are incongruent with their birth assignment have faced fierce resistance. As in previous chapters, the subject of my inquiry is not gender nonconforming parents, but rather the state regimes of sex classification and designation of parental roles. I am interested in asking why administrative and family law are so heavily involved in policing desires for having children and why gender nonconforming people using their bodies and bodily material to reproduce are perceived as threats to the stability and coherence of entire legal regimes. The current wave of cases to be reviewed addresses the parental designation of those who have reclassified their sex. This issue arises specifically in light of the global trend toward a right to gender identity. It is the biological reproduction of trans people whose sex has been reclassified that destabilizes the naturality associated with the act of assigning sex at birth in the first place. The problem is thus situated between the growing legal willingness to recognize a right for self-attested gender identity and the law’s continuous reluctance to account for its role in constituting and upholding the gendered matrix of power, including through birth assignment of sex classifications (of children and parents).611 608 Susan B Boyd, “Gendering Legal Parenthood: Bio-Genetic Ties, Intentionality and Responsibility”” 25:1 Windsor YB Access Just 63 at 68. 609 For example see: All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016SO 2016, c 23 (Ontario)(Can.) enabling the online registration of up to four parents either as mother, father or parents, regardless of their genetics ties or role in the process of giving birth. 610 Frederik Swennen & Mariano Croce, “Family (Law) Assemblages: New Modes of Being (Legal)” (2017) 44:4 Journal of Law and Society 532–558 at 539n40. 611 Currah, “Expecting bodies”, supra note 580 at 335. 135 Administrative Gender Dysphoria The newest self-identification legislation in Europe, in Belgium and the Netherlands, as well as previous legislation allowing for recognition of subjective gender identity, such as the UK Gender Recognition Act or the German Transsexual law, 612 specifically exclude parental reclassification. In other jurisdictions that have recognized a right to gender identity, this recognition is almost never extended to “the relationships consecrated by family law at all levels and degrees, that […] remain unchanged.” 613 What is it about trans parents that causes legislators and judges to say “enough is enough”? Trans parents call into question the presumption that being born with a vulva naturally makes one a mother, and that being born with penis naturally makes one a father, presumptions that were left unharmed by recognition of same-sex parenting. The assignment of binary parental designation is based, following the assignment of sex at birth, on the unification of corporal characteristics (producing sperm, having ova) or acts (giving birth, impregnating) with bodies of meaning (acting as mother or father) and body politics (being designated as a mother or father). This is not factual unifying order, but a presumed one, as I will further elaborate. In most heteronormative scenarios, it is enough that one could potentially provide sperm or ova to become a gendered parent. Unmaking the unified and universalized order of parental designations, trans parents “refigure the relationship between individual corporealities and aggregate bodies.”614 Trans men are barred from becoming fathers even if they are classified as male at the time of their child’s birth. Trans women are prohibited from declaring that they are mothers even if they are classified as female. These prohibitions arise especially, but not exclusively, in the context of genetic parenting. Exactly because trans people are allowed to claim “unnatural” sex classification in the name of innate gender identity, they are portrayed as unnatural when they naturally reproduce. 612 Transsexual law, supra note 605. 613 §7 of Argentinian Gender Identity Law, Supra note 23. 614 Stryker & Sullivan, supra note 50 at 61. 136 Confronted by trans fathers who give birth, or worse, by those assigned male at birth and who use their sperm to become mothers, governments are experiencing gender dysphoria, described by the American Psychiatric Association as “a significant distress and/or problems functioning arising from a conflict between the way one feels and thinks of themselves and their physical or assigned gender.”615 Indeed, this dysphoria can be read as an anxious response616 to unsettling the administrative Oedipus complex.617 In the previous chapter, I argued that the existence of the differentiated status M/F reflects the Oedipus complex of the state, its desire to overcome sexual indeterminacy through gender acquisition achieved in the repetitive act of birth assignment. Trans men asking for paternal designations and trans women declaring maternity challenge the reassuring fantasy that distribution of the legal Phallus, the M classification, would make one a father. Thus, trans parents challenge the paternity of the state itself, as the father who gives the Phallus. The Oedipus Trinity As already explored, the alleged immutable “biological” attributes of sex classifications are precisely what justify the differential treatment not only of gender nonconforming subjects, but also of women writ large. Perhaps one of strongest arguments supporting the differentiated legal status M/F is that female-bodied people are qualitatively different than male-bodied people in their experiences of gender because of the difference in reproduction-related experiences (pregnancy, menstruation, etc.).618 615 “What Is Gender Dysphoria?”, online: 137 The experiences of trans parents shows that these essential differences of experience are also citations of preexisting norms, reflecting the body’s ability “to be integrated as a biopolitical resource[…] into an apparatus such as the state.”619 In the previous chapters, I argued that birth assignments trap legal subjects into sexed bodies, tightening the binding of the corporal body and body politics. As reviewed, Foucault, Butler, and others who follow in their footsteps, have argued that the regulation of the sexed body is geared first and foremost toward securing the reproduction of the species, understood as the ‘natural’ heterosexual production of babies.620 Experiences of trans parents suggest that the sexed body cannot be simply reduced to the ability to procreate without the use of reproductive technology. The law’s challenge to recognize trans parents suggests that the reproduction of the “norms of gendered embodiment that form part of the routine function of the social body” 621 is, in fact, the foremost function of the sexed body. The goal of the signification, afforded by the sexed body to the legal subject, is the production of a universalized (gendered) private autonomous self who is independent from others rather than dependent on them, ‘like a baby.’ This reproduction occurs, through inscriptions of neutrality and naturality to differentiation of bodies, exactly at the moment that reveals life as interdependent, the moment of birth. As I discussed, in Bodies that Matter, Butler argued that the Lacanian Oedipus script is confined to a specific phallocentric symbolic order through which Lacan proclaims that the phallus is not the penis. Analyzing Lacan’s proclamation in light of his theory of the mirror stage, Butler situates Lacan himself as the paternal figure who has the power to name, which is to mark the sexual difference that he presumes. I argued that by naming the penis M and the vulva F, the administrative state, like Lacan, signifies the differentiation it presumes. Looking at demands for recognition of trans parents, a further triple Oedipus inscription is revealed of both child and parents. In The Force of Non Violence, Butler goes back to the mirror stage and suggests that the liberal theory of the social contract, centering the figure of a man in conflict with others over 619 Stryker & Sullivan, supra note 50 at 51. 620 Stryker, supra note 412 at 39. 621 Stryker & Sullivan, supra note 50 at 59. 138 resources and territory, is a mirror stage for the individual subject: the narrative of the presocial state of conflict demarcates the encounters of the subject as an adult, autonomous, private, and in competition. The ‘social contract’ metaphor names this subject, the individual, an act that is already gendered.622 Butler asks, “What support, what dependency, has to be disavowed for the fantasy of self- sufficiency to take hold, for the fantasy to start with a timeless adult masculinity?”623 To Butler, this specific imaginary, which is taken to be the symbolic order of society, identifies masculinity with self-sufficiency and femininity with the support the mother figure provides and is disavowed.624 That is, starting the story with the grown man already presumes and disavows a mother-child relation of dependency that both obscures the mother’s labour and the absence of a father.625 To escape this conundrum, which validates its own gendered terms, Butler suggests to ask about the moment before the beginning, to remind us that no one, child or adult, “can move or breathe or find foods […] without reliance on the social and material structures and on the environment.” The story prior to the a priori story of individuation is one of fundamental intersubjectivity.626 I want to add a few subsequent questions: What about the fantasy of the mother as adult female caring for the adult man as a baby? Was she not once a baby held in front of the mirror? Was her body not demarcated and named as a mother to be? And if so, are the baby and the mother interchangeable? The baby’s experience of their body does not only become, through the caretaker’s acts of differentiation and signification, an intelligible “I,” in the sense of who one is and can be. Rather this “I” of intelligibility already determines, through the inscription of the body, who one is in relation to others, and what relation of dependency one can form and experience: to become mother or a father. 622 Butler, supra note 397 at 42. 623 Ibid. 624 Ibid. 625 Ibid at 43. 626 Ibid at 41. 139 In naming the baby, the mother is also named, much like when Lacan names the symbolic order as the phallus, he himself is named as the father. In that sense, the relationship between the baby and the caretaker who holds him or her in front of the mirror is not just one of dependency but of interdependence. One is constituted through the other. In the context of the legal assignment at birth, the baby is assigned a mother and often a father,627 and is assigned as a future mother or a father; the mother and the father are also both assigned as parent and as F/M simultaneously. The F(emale) is the M(other) and the M(ale) is the F(ather). The assignment of parental designation is a trinity of reiterated citations, self-referential rituals without an origin. Parental designations, even taken on their own account, prove to be performative. The Performativity of Parental Designations The performativity of family law has been articulated through the idea that “registering a kinship formation under a particular label performatively brings this formation into existence by means of the exclusive bundle of rights and obligations that the law attaches to it.”628 The legal designation of status makes a specific kinship ‘real.’ Deploying the critical lens of performativity on the kinship formulation of trans-headed families, specifically those in which one or more adults has provided genetic material for the creation of a child, forecloses possibilities for claiming that what is ‘real’ has anything to do with material realities, a claim launched against the notion of performativity. In scenarios commonly understood as forming ‘natural parenting,’ 629 at the moment when sex and parental classifications are assigned, both an actual biological event (someone was born and someone gave birth) and a legal event (a person is now either F or M, and a person is now a Mother or a Father) have occurred. There is an almost automatic link between the biological and the legal event, in which the former is absorbed into the latter until they become indistinguishable. At this point, biological acts or functions forever leave the stage and only a 627 Susan Frelich Appleton, “Presuming women: revisiting the presumption of legitimacy in the same-sex couples era” (2006) 86 BUL Rev 227 at 232–233. 628 Swennen & Croce, “Family (Law) Assemblages”, supra note 610 at 538. 629 Parenting of two biological related opposite-sex parents who did not use reproductive technologies (see: Tim Bayne & Avery Kolers, “Toward a pluralist account of parenthood” (2003) 17:3 Bioethics 221–242 at 225. 140 legal status remains, although, as will be argued, this ‘biological link’ is a fiction (and often presumed in relation to heterosexuality). In the normal course of a life, once one has been designated F/M, they will not be asked to show their vulva to support their claim ever again, nor will one be asked to provide proof that they gave birth to their child, such as is in the form on notice of live birth, once they have been classified a mother.630 The status of the father is less secured exactly because fatherhood is accepted as a legal presumption, and rarely involves scientific testing in the process of assigning paternity. From a trans perspective, this inequality in parental presumptions reveals parental designations to be a reiterated citation without origin, another site of administrative performativity. In both the assignment of sex and parental designation, one specific biological act or function is chosen to signify a binary position, e.g., giving birth signifies maternity, external vulva signifies that one is female. However, the very conception of a child requires what Noa Ben Asher terms “the baby making triangle”631 of biological contributions: sperm, ova, and uterus, already opening the possibility of either two or three genetic contributors. Whereas the act of giving birth can be determined by anyone who witnessed it, conclusively determining the genetic relation between the newborn and their parents requires scientific testing. Birthing is legally given an a priori status not because it reflects biological truth, but because can easily be determined. When we see a child calling a masculine presenting person “dad,” we often assume them to be genetically related, and we assume that the father has been assigned M at birth. If the “dad” is legally recognized as the child’s father, then the law seems to validate their lived reality. When the person who give birth asks to be recognized as the Father according to his family’s lived reality, he is rejected because in his situation it is known that he did not provide sperm, and therefore his claim to paternity is not “real.” Yet, the person who gives birth and wishes to be 630 In the context of gender nonconforming people, as will be further explored, it is often ‘normal’ police procedure to verify people’s gender through strip searches (which indeed serve as gender policing for anyone subjected to strip searches) (see: Joey L Mogul, Andrea J Ritchie & Kay Whitlock, Queer (in)justice: the criminalization of LGBT people in the United States, Queer action/queer ideas (Boston: Beacon Press, 2011) c 5. 631 Rosenblum et al, “Pregnant Man”, supra note 595 at 217–218. 141 registered as a father is not more “real” or “fake” than the non-trans man who provided sperm. If one is a non-trans man, in most cases, the law would be willing to recognize his paternity based on an assumption derived either from his relationship with the person who gave birth or his own declaration of paternity, without usually requiring any actual proof. This is an imitation of truth; it is truth making. Common law operates with a paternity presumption, designating a person assigned M at birth as the Father at the moment of birth, if he is married to the person who gave birth, or if they cohabitated at the time of assumed conception.632 While the father can later relinquish his paternal rights, such as in the case of adoption, his own immediate status is in contrast with other ways of acquiring paternity.633 This automatic way of acquiring paternity has been limited in the heterosexual context in recent decades and can now be rebutted in various ways,634 and illegitimacy has been largely abolished.635 In some jurisdictions, the presumption has been extended to include recognition of same-sex parenthood, the recognition of the mother’s or father’s partner as a mother, father, or as a co-parent.636 Nevertheless, the presumption of male genetic ties based on a relationship with the mother is still the default role of assigning paternity.637 632 Appleton, “Presuming women”, supra note 627 at 228. 633 Ibid at 233. 634 Ibid at 233–237. 635 Brenda Cossman, “Contesting conservatisms, family feuds and the privatization of dependency” (2005) 13 Am UJ Gender Soc Pol’y & L 415 at 426. Notably because of the severe implication of Jewish law on illegitimacy on one’s ability to marry, Israel prohibits genetic testing to prove biological connection between fathers and their children (see: Yehezkel Margalit, “Towards Establishing Parenthood by Agreement in Jewish Law” (2017) 26 Am UJ Gender Soc Pol’y & L 647 at 654. 636 Appleton, “Presuming women”, supra note 627 at 242. 637 For instance, as Fiona Kelly notes, this presumption is still active in all Canadian provinces: “[Heterosexual couples] can rely on traditional presumptions of paternity to establish the legal parentage of the mother’s male partner, to the extent his parentage is even questioned. Presumptions of paternity are included in all provincial family law statutes. Family Relations Act, RSBC 1996, c 128, s 95; Children’s Law Reform Act, RSO, 1990, c 12, s 8; Child, Youth and Family Enhancement Act, RSA, 2000, c C-12, s 1(1)(a); Family Law Act, SA, 2003, c F-45, s 1(f), s 8(1); Family Maintenance Act, CCSM, c F20, s 23; Family Services Act, SNB, 1980, c F2.2, s 103; Children’s Law Act, RSNL, 1990, c C-13, ss 7 & 10; Children’s Law Act, SNWT, 1997, c14, s 8; Maintenance and Custody Act, RSNS 1989, c 160, s 2(j); Child and Family Services Act, RSNS, 1990 c 5, s 3(1)(r)(vii); Custody Jurisdiction and Enforcement Act, RSPEI 1988, c C-33, s 3(1); Child Status Act, RSPEI 1988, c C-6, s 9(1); Civil Code of Quebec, SQ 1991, c 64, art 525; Children’s Law Act, SS 2002, c C-8.1, s 45; Children’s Act, RSYT, 2002, 142 Where a person who is male did not have an established relationship with the mother at the time of conception, he can self-identify as the father, and, without requiring further proof, in most cases, demand a relationship with the child (and ostensibly the mother). The father can also be later identified by the mother or the child, yet only insofar as to obligate him to fulfill his masculine duty to provide financial support. Having a relationship with the child is still his prerogative. The presumption reflects a very particular gender dynamic where “the presumption makes a married man the legal father of his wife’s biological children, but does not make a married woman the legal mother of her husband’s biological children.”638 The presumption of legitimacy was never absolute for non-white men. In the US, at times when this presumption was considered irrefutable, it was evoked in cases where a mother legally considered to be white gave birth to a child who seemed ‘dark.’ Such recognition, as Mary Louise Fellow argues, would assign the child to the white race and jeopardize the legislative effort of the time to maintain racial boundaries.639 By denying the possibility that either or both parents had Black ancestry, the court upheld the myth of racial purity.640 Further, in chattel slavery in the US, natal alienation was the norm, so that parental status in general was denied to enslaved people.641 Dorothy Roberts has argued that this continues today in the racially targeted child welfare system of the US.642 Though this is a presumption of genetic ties, it is better understood as an entitlement of white men to property claims over children born to women they have had a relationship with. This entitlement follows a logic of truth, or truth probability. We suspect that the “dark” skinned child is genetically related to a non-white father (though there is no reason to think so based c 31, s 12.” (See: Fiona Kelly, “Equal Parents, Equal Children: Reforming Canada’s Parentage Laws to Recognize the Completeness of Women-led Families” (2013) 64 UNBLJ 253 at 225n.) 638 Appleton, “Presuming women”, supra note 627 at 237. 639 Mary Louise Fellows, “The law of legitimacy: an instrument of procreative power” (1992) 3 Colum J Gender & L 495 at 501–504. 640 Ibid at 502. 641 Dorothy E Roberts, “Child welfare and civil rights” (2003) U Ill L Rev 171 at 179. 642 Dorothy E Roberts, “The genetic tie” (1995) 62:1 The University of Chicago Law Review 209–273 at 225–227, 267–268. 143 solely on skin tone) and we assume that a woman who did not give birth is not the mother of children genetically related to her husband (though genetically she can be if she donated ova). The truth status of the hegemonic father is preserved. The repetitive act of designating paternity based on certain assumptions or declarations constitutes it as a stable legal category that reflects genetics, though genetics hardly have anything to do with it. The trans father who gave birth and the trans woman who provided sperm are almost certainly related to their children (whether or not the children are born with the use of reproductive technologies). Yet, the paternity of the person who gives birth is denied because, in this case, the fact that he gave birth provides the actual proof that he did not provide sperm. The maternity of the trans woman is denied on similar grounds: by the fact of providing sperm, we know that she neither provided ova nor gave birth. In this sense, the person who gives birth is a fake father, and the person who provides sperm is a fake mother, but they are only fake insofar as the imitation of truth is revealed in their case. By refusing to recognize them, the law upholds the myth of gender certainty. Much like sex classification, parental designations are more about who people are supposed to be than who people actually are; in conjunction with sex classification, they are also speciating devices, demarcating the abilities and the racial, gendered, and economic contours of maternity and paternity. This line of argument does not work as neatly when it begins with the default role of maternal designation, that is, the act of giving birth. Still, attaching the category ‘mother’ to people who give birth is performative in the sense that it makes specific kinship ‘real.’ The act of giving birth is a causal principal for the delegation of legal status, it does not denote any pre- legal truth about certain bodies’ characteristics and abilities as parents (it does reflect one’s ability in becoming a parent). Maternity is constituted not by giving birth, but by an act the state repeatedly imitates with every registration of birth. Clearly, parental designations are not only about the individual’s legal identity, but also about their affinity to their children and their responsibility for their children. The family law axiom that “a mother is a woman who gives birth” protects the child’s and societal interest in placing parental responsibility at the moment of birth (and even before it). To achieve this goal it 144 isn’t it sufficient to say that “a person who gives birth has parental responsibilities”? allowing for said person to be defined as a mother or a father or a parent. How would recognizing a person who provided sperm as a father, mother, or parent limit parental responsibility at birth? Why do legal identities formed in relation to biological functions outweigh legal identities constructed through relationships?643 Trans experiences suggest that parental designations are more about the reproduction of gender embodiment norms than about justifiable policy concerns regarding allocation of parental responsibilities. Sovereignty Negotiations As discussed in previous chapters, the current legal trend toward a right to a gender identity, a right to self-identification, has redistributed some of the state sovereignty over sex classification to trans people. Sovereignty negotiations between trans people and the administrative state create anxiety for the latter which, in return, tries to secure some level of sex immutability. I theorized the move towards self-identification of gender identity, through Talia Mae Bettcher’s work, as replacing one ‘wrong body’ narrative with another. As explained in the first chapter, in the weak version of the narrative, one’s pathologized gender identity is cured through medical interventions to the sexed body, making one a man or a woman. According to the second, strong version of the narrative, gender identity determines a person’s real sex. In the latter version of the narrative, medical (and other juridical) interventions affirm that one has always been a man or a woman.644 What is amplified in the move from the first to the second version of the wrong body narrative is the level of sovereignty trans people are given over their bodies and, subsequently, 643 For biological essentialism in family kinship, see, Robert A Wilson, “Kinship Past, Kinship Present: Bio- Essentialism in the Study of Kinship” (2016) 118:3 American Anthropologist 570–584 at 570.(considering the “bio‐essentialism in the study of kinship, centering on David Schneider's influential critique that concluded that kinship was “a non‐subject" (footnote omitted) (quoting David M Schneider, “What is kinship all about” (1972) 21:3 Kinship studies in the Morgan centennial year 32–63.); Marc Ereshefsky, “What’s wrong with the new biological essentialism” (2010) 77:5 Philosophy of Science 674–685. (presenting several forms of biological essentialism and arguing that there is no reason to adopt the perspective of biological essentialism). For discussion of how biological essentialism shapes the legal discussion in Israel around parental judicial orders granted to same- sex couples undergoing ARTs, see: “Projecting a Queer Sensibility of Temporality into Legal Parentage Identification” Noy Naaman, at 42–47 (on file with author).. 644 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 383. 145 over their identities and reproductive capabilities. This redistribution is always already circumscribed by the state’s power to assign sex at birth. Thus, trans sovereignty over sex classification can only be expressed within the constitutional structures of the legal subject as defined at birth, through the naming of their genitals as M/F. That is, the formally gender self- determined legal subject is an individuated subject whose constitutive relationality and interdependency are made invisible by the public act of “self-identification,” which ratifies the natural status of all other gendered legal subjects who do not demand sex reclassification. Trans parents’ appeals for recognition of their parental role, which become possible through the sovereignty they have been given (precluding their sterilization), are constrained by the presumption of “naturalness” that enabled that sovereignty. To put it differently, trans people are granted access to self-identified reclassification that does not require bodily modification only under the auspice that ‘real sex’ is determined by innate gender identity. The innate gender identity that would justify reclassification is one that is incongruent with the body. Thus, reclassification encodes a desire for a different body (realized or not through social or medical technologies). In claiming parenthood produced from this ‘wrong body,’ trans parents are revealed as imposters because they may not really feel their body is wrong.645 Noa Ben Asher argued, in the context of reproductive technologies, that people are allowed to buy only two out of the three components needed to produce a baby (sperm, ova, and gestational surrogacy) because infertility has been the historical condition for legal recognition of such arrangements. While access to reproductive technologies is no longer solely determined on curing infertility, the ‘cure’ logics continue to “operate sub rosa”:646 As long as one of the three prongs is provided by the intended parent or parents, the agreement is potentially enforceable; thus, the one (or more) components provided by the intended parent allows lawmakers, consciously or not, and rationally or not, to view the intended parent or 645 Currah, “Expecting bodies”, supra note 580 at 333. 646 Rosenblum et al, “Pregnant Man”, supra note 595 at 219. 146 parents as somehow “cured” by the legal transaction. As long as you provide something biological or genetic, you are “cured.”647 This logic is also evident in the legal reaction to trans parents who use their body or bodily material to reproduce. By providing something biological or genetic, they are either retroactively ‘cured’ from their ‘wrong bodies,’ or they were never really ‘wrong.’ The former scenario suggests that their gender identity claims, to be mothers or fathers, male or female, are simply a pretence, and the latter scenario positions them as deceivers. Thus, the sovereignty afforded by self-attestation of gender identity returns to suggest that trans parents are either not really trans or not really the parents they say they are. Following Brenda Cossman, it seems that the self- determined trans subject “who fails to self discipline, like those who fail to privatize, risks being marked as unbecoming.”648 In their attempt to determine sex and its relation to gendered parenthood, courts faced with appeals by trans parents seem to be guarding the stability, coherence, and accuracy of the legal system. In their quest for coherence, their decisions insist on sustaining incongruent parenthood, assigning men who are classified as male as mothers and women who are classified as female as fathers. At their core, these cases ask what legally defines a mother or a father, what distinguishes them, and what justifies their legal differentiation. The following section will review how these questions have been answered by the court. The review will open by mapping discourses of biology and nature in decisions regarding trans parents’ designations from across the globe. Showing how these discourses are used in the name of the children, I will explore the deployment of the concept of the ‘child’s best interest.’ I will critically examine the apparent alignment between the child’s interest, as the court sees it, and the state’s interest in regulating gender through parental designations. Finally, the review will consider the positionality of non-binary trans parents. 647 Ibid. 648 Brenda Cossman, Sexual citizens: The legal and cultural regulation of sex and belonging (Stanford University Press, 2007) at 15. 147 Nature, Nurture and the Voice of Biology 2004 saw the case of MJ,649 a trans man from Quebec who had reclassified his sex and asked that his parental designation on his children’s birth certificates also be reclassified, from mother to father. The Superior Court of Quebec refused MJ, finding that “the mother will always remain the mother regardless of medical modification to the body.” 650 The court explained its decision by arguing that the act of giving birth is a biological situation that cannot be changed by sex reclassification.651 Medically and legally speaking, the Court said, MJ made a decision that cannot affect his children.652 The Court asserted that while the “mother has changed sex” it does not mean that “biologically speaking she is not the father.” [misgendering in sic]653 What does the Superior Court mean by the term “biological situation,” and who is speaking in the name of biology? What kind of interpretive-regulatory assumptions does the court employ to reach its conclusion that once a mother is always a mother? Though the biological ‘truth’ is allegedly beyond the symbolic — beyond what an administrative act of sex reclassification can do — the court still needs to define what can or cannot be biologically spoken. Without the court “biologically speaking,” the “biological situation” does not exist. That is, in plain biological terms, there is no doubt that the applicant is related to his children and he never disputed the fact that he gave birth to them, whereas the questions regarding what one calls this relation or how to legally categorize people who give birth are separate. The question the Superior Court does not address is this: what prevents defining a legal male who gave birth from being designated a father? By not addressing this question, the court unifies the bodily act of giving birth with the legal meaning of being a mother and renders this unification invisible by ascribing it to the extrajudicial power of biology. This formulation of 649 M. (J.), Re, 2004 CanLII 76357 (Can.) [hereinafter MJ v Quebec]. Note that unlike almost all other cases reviewed in this chapter (except for two other, related, Canadian cases) this case is not recent. Yet, as it constructed the border of the legal debate on the issue in Quebec, which this chapter analyzes, I found it productive to review the case. 650 Id. at §34. (““une mère restera toujours une mère indépendamment des modifications médicales apportées sur quelqu'un physiquement” (I thank the Eden Segev for this and all other French Translations). 651 Id. at §20“la situation biologique”- 652 Id. at §32. 653 Id. §24 ““pas dire que biologiquement parlant, elle est leur père” 148 biology becomes intelligible only through juridical discourse. The numerous features that enable certain bodies to give birth gain specific socio-legal meaning through their articulation within the designations of parenthood, which in turn further legitimize the category of sex.654 The policy of refusing to reclassify parental designation has recently been repealed during the deliberations in the Quebec Center for Gender Advocacy lawsuit.655 In that case, one of the plaintiffs, Jenna Jacobs, exposed the absurdity of the policy adopted following the MJ case. Jacobs and her partner Elizabeth Heller had two children; 656 Heller carried both children conceived with Jacobs’ sperm.657 Jacobs’ application for sex reclassification had not yet been approved at the time the first child was born in 2013,658 so she was forced to register as the father of her child.659 The couple had a second child in 2015, and since Jacobs had reclassified her sex by then, she was designated the mother of her second child. In the eyes of Quebec law, Jacobs was “biologically speaking” legally both a father and a mother. In February 2019, four years after the lawsuit was launched and shortly before the public hearing on the case, the Attorney General of Quebec announced that the registrar of civil status (de l’état civil or DEC) would implement an ‘operational change’ in their interpretation of the Civil Code.660 In May 2019, the DEC published on its website that “the change of designation as ‘Father’ or ‘Mother’ and of given name(s) is also automatically made to the act of birth of the person’s minor children.”661 This automatic reclassification brings with it a host of questions to be further discussed. This turn in policy reflects a move from a weak version of the ‘wrong body’ narrative in which one becomes a man or woman through medical interventions (and thus a prior act of the body such as reproduction should not be affected), to a strong version of the same narrative in which 654 Butler, supra note 150 at 130. 655 Plaintiff Argument Plan in Centre for Gender Advocacy c. Québec (Attorney General), 2015 QCCS 6026 (CanLII)[Canada] [hereinafter Centre for Gender Advocacy] 656 Id. at §216 . 657 Id. 658 Id. at§217. 659 Id at §219. 660 Id at §229 661 l’informatique, supra note 177. 149 one has always been the man or woman they claim to be (and thus legal recognition should amend sites of misrecognition), to return us to Blettcher’s definitions.662 The tension between the weak version and strong version of the wrong body narrative animates all legal decisions and legislation to be reviewed in this chapter. As in the new Quebec policy, legal avenues for recognition of trans parents shift away from the “biological situation,” not by accepting that it is not prior to any symbolic order, but by suggesting that gender identity is innate, and is therefore still part of the natural world. The Natural World Perhaps one of the most elaborate examples of the legal hoops trans parents are required to jump through in order to be recognized is currently found within Israeli Law. In 2016, Yonatan Maraton-Marom, a trans man in a martial relationship with a non-trans man, gave birth to his child, conceived with the genetic material of both parents, in an Israeli public hospital.663 The public registrar officials refused to register the child as a citizen because the child did not have a mother. 664 After more than six months, the registrar officials, without informing Maraton- Marom, re-reclassified his sex to female and registered him as the sole parent.665 The family appealed to the Israeli Supreme Court sitting as the High Court of Justice.666 During the court proceedings, the state again reclassified Maraton-Marom, this time back to M, and registered both parents.667 As part of the deliberation, the state also presented a new protocol for recognition of trans parents. According to this protocol, before the act of giving birth or soon after, the trans parent (or parent to be) would appeal to a state-appointed medical committee that would examine whether “due to the pregnancy, a gender change has 662 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 384. Under an HCJ Order: A Transgender Man and His] בהוראת בג"ץ: טרנסג’נדר ובן זוגו הוכרו כאבות של בנם“ ,Ilan Lior 663 Partner Were Recognized As Parents]”, Haaretz (4 April 2017), online: 150 occurred.”668 Without approval that change did not occur, the parent’s sex reclassification would be rebutted as a result of the birth of the child. Trans women mothers would be again classified as M and trans men fathers as F. That is, the State of Israel established a committee entrusted with certifying that expecting fathers are masculine and expecting mothers are feminine.669 In 2019, a follow up petition was filed addressing the new protocol.670 The new petition requested that the term ‘mother,’ within the relevant regulations, be interpreted to mean also ‘father’ in the case where a person who is legally male gives birth, and vice versa in the case where a person who is legally female contributes sperm.671 The court position has yet to be determined as the petition is still standing. However, notions of ‘biology’ have already been deployed by both the court and the parties during the most recent hearing of the appeal. The state’s main argument justifying the protocol relied on an unrelated mention of the term “natural mother” within the context of births occurring outside institutional settings (such as home births). Proclaiming “the assumption that [birth certificates] only reflect biology,”672 the state attorney concluded that a person who gives birth is naturally a mother and a woman. The state attorney further argued that a trans person’s legal recognition as M/F must be reconsidered when one is expecting children because “the fact that one retains his menstrual cycle and bears children cannot be disregarded.” 673 According to the state, retaining menstruation, and reproductive capabilities more broadly, are changes in circumstance that necessitate re- examination of the decision to reclassify a person’s sex. The state reasoned that this is not a sanction placed on trans parents for using their reproductive capabilities, as the petitioner’s 668 HCJ Parents Petition, supra note 663, at §30. 669 De facto the state did not set up a new committee but entrusted the already existing state-appointed medical committee for approving access to gender affirmative surgeries with the authority to provide said certificates. 670 HCJ Parents Petition, supra note 659. 671 Id at. 1. 672 Transcript of Oral Argument at 11, HCJ 3148/18 Anonymous v. The Minister of Justice et.al (May 6th, 2019)(Isr.)(On file with author) [hereinafter HCJ Parents Transcript] 673 Id. at 2. 151 lawyers suggested, but rather an extrajudicial ‘natural’ difference that must be taken into account.674 Adopting this position, Chief Justice Hayut understood the legal challenge in the case “as a problem of identity, when a man sees himself as male but realizes the birthing potential.”675 Chief Justice Hayut finds it hard to justify that a person who feels and expresses himself as male could become pregnant, “which in the known natural world is in the female territory,” while remaining legally male.676 Judge Vilner added that when a trans man becomes pregnant there is a hormonal change that can be considered as a change in circumstances, which can justify reconsidering his sex reclassification.677 The petitioner’s attorney did not question chief Justice Hayut’s deployment of the “natural world” to define what is known as a “feminine territory.” Judge Vilner’s assumption that all gender transitions necessitate hormonal treatment or that one’s gender identity or legal sex is ever determined by hormonal level also went unquestioned. Instead, the petitioner’s attorney got involved in this “biological” discussion and argued that the registrar official does not have the authority to determine whether or not someone is menstruating.678 In response, Chief Justice Hayut pointed out that pregnancy does not happen by itself.679 The presumptions that sex classifications reflect some extrajudicial truth about characteristics and abilities, or that giving birth justifies differentiated parental status, or that prenatal designation ever reflects “biology only” rather than biological beliefs, remain outside the scope of the discussion. But the discussion was never really about biology. Biology is how the state and court (and to some extent the petitioner’s attorney) express their concerns that trans fathers (and potentially trans mothers) are not actually the gender identity they claim to be. 674 Id. at 7. 675 Id. at 3. 676 Id. at 7. 677 Id. 678 Id. 679 Id at 7. 152 In effect, the state and the court seem to agree that giving birth justifies revoking Yonatan’s (or other trans parents’) sex reclassification, as it undermines the stability of his gender identity. Thus, Justice Hayut offered that the petitioner should subject themselves to the authority of the medical committee that can determine that the “sex change” was indeed authentic, and will provide the applicant with “an insurance policy” prior to giving birth.680 The court is affirming the state’s feelings of betrayal: Yonatan and others like him say they are men and then they go and get pregnant!681 The Israeli Supreme Court is not unique in resorting to biological discourse to portray trans parents’ claims as inauthentic. In different jurisdictions and legal systems, trans parents’ appeals reveal the law’s invisibilizing practices, which presuppose a prelegal sexed body onto which legal meaning is projected. These practices are often enshrined into legislation, particularly in jurisdictions where the term “mother” is first and foremost defined as the person who gives birth, as in the German and UK contexts, which I will soon turn to. Not a Mother or a Father The beliefs in biological truth reflected by differentiated parental designation becomes apparent by reading together two cases decided by the same panel of judges in the German Federal Court of Justice in the span of five months. In July 2017, the court denied the request of OG, a trans man, to be recognized as the father and sole parent of his child born after he reclassified his sex.682 In November 2017, the same court rejected the appeal of Mutter,683 a trans woman who declared herself the mother of the child she conceived with her non-trans partner who also registered as a mother after giving birth. 680 Id at 7. 681 In a previous case, Yuval Topper Erez, another trans dad whose sex had been reclassified five times after giving birth to two children, the public registrar officials actually said that they do not believe him to be a man (see: Omri ,”[For the First Time the State Recognizes Two Biological Fathers] המדינה הכירה לראשונה בשני אבות ביולוגיים“ ,Efraim (18:37 , 15.09.13), online: ynet 153 The court found that, “like the vast majority of legal systems worldwide,” the German civil code, the Bürgerliches Gesetzbuch (BGB), connects reproductive capacities to the parent’s designation.684 The mother is a woman who gives birth and the father is the person who provided sperm.685 In this way, the law achieves a unification of physical and legal parenting. There is no legal obligation to address paternity and maternity as purely social in meaning.686 After all, the court argues, “the link between reproductive function and legal sex is undeniably biologically founded.”687 The court insists that the legal status as mother or father is “biologically determined at birth” by the fact of birthing or providing (male) gamete, and cannot be changed.688 Children should be legally assigned to their “biological parents” in ways that would prevent the designations of two legal mothers or fathers “contrary to their biological conception.” 689 Thus, it is justified to designate parental roles to trans people as either mother or father based on “reproductive function” rather than legal sex. 690 These legal findings were deployed in the opposite cases of OG and Mutter. In the OG case, the court found that OG had indeed reclassified his sex to male. Still, in relation to his children, he should continue to be considered as a woman.691 OG cannot be designated a father because he provided ova rather than sperm; and because he gave birth, only the designation of maternity is available to him.692 Otherwise, the court asserted, it would be impossible to determine whether OG’s child was indeed related to him. Unlike paternity claims, the fact that he is genetically related to the child has no bearing given that he provided ova.693 The court found it justified that OG was treated differently than other men because of his ability to bear children. That is, OG is not a ‘real’ man, thus he cannot be a ‘real’ father. 684 OG decision, supra note 680, at §26 685 Id. 686 Id. 687 Id. 688 Id. at §19 689 Id. at §26 690 Id. at §31 691 Id. at §32. 692 Id. at §27 693 Id. 154 In the Mutter case, the court found that there cannot be a legal analogy between the law allowing declaration of paternity and Mutter’s request to be recognized as a mother. 694 Maternity, the court ruled, is linked to objective, ascertainable, and unchangeable characteristics of the person who gives birth.695 As Mutter provided sperm, she can only be designated the father of the child.696 But the court went even further, ruling that when Mutter declared herself a mother she also failed to declare that she is a father, and thus would not be recognized at all.697 The fact that she called herself a mother made her claim to parenthood undetermined, even though there seems to be no question that she did provide sperm. Mutter is punished for ‘pretending’ to be a mother. Because of ‘biological contributions,’ OG was barred from becoming a father and Mutter was barred from becoming a parent at all. OG is forced into the position of a mother (and a female) because he gave birth and does not have sperm, and Mutter is banned from any recognition because she does have sperm and did not give birth. Mutter’s ‘biological contribution’ in this sense is better understood as a forced speech act (to declare oneself a father, which she refuses to do). If OG would perform the same speech act (declare himself a father), he too could lose the legal relations between himself and his child.698 Yet, heterosexual men who use the legal route of declaration to receive parental recognition are not required to provide proof of their “reproductive contributions.” While the court asserts an undeniable biological link between legal sex and reproductive functions, this link is only assumed in most designations of paternity. Though the court grounds its finding in biology, it does not bring any kind of scientific evidence to back its “undeniable biological” findings, which prohibit “biologically unjustified” parental designations. Instead, the German court takes the voice of biology to define what kind of legal status can and cannot exist, making sure that OG and Mutter do not deceive the public or their children. 694 Mutter decision, supra note, 681 at. § 6. 695 Id. 696 Id. § 6-8 697 Id. § 13. 698 OG decision, supra note 680, at 27. 155 It is the law itself that defines maternity through the act of giving birth, not material facts. The court, rather than the very process of human reproduction, finds that a child cannot have two mothers or two fathers. While the German legal system believes its reasoning is rooted in prelegal truth, the priority it gives to certain bodily acts and functions constitutes only the appearance of determinacy, rather than any fact (biological or otherwise). The Ungendered Mother The biological discursive frameworks that differentiate between maternity and paternity became even more incoherent in the recent body of English law on recognition of trans parents. The English common law on parenthood finds that maternity is a fact “being proved demonstrably by parturition,”699 by the act of giving birth. The father is generally considered the husband of the mother.700 Mother and father are assumed to be “natural or biological” categories.701 Two recent cases of a trans mother and a trans father have brought to question these presumptions. While the court rejected both claims for recognition, the rejections shed light on another question – are the categories mother and father inherently gendered, or are they merely legal placeholders describing biological facts? In 2013, JK, a trans woman, asked to be designated as a ‘parent’ or ‘parent/father’ rather than ‘father’ of her children.702 JK had married a non-trans woman, and the couple “naturally conceived” two children.703 They had their first child in 2012, and JK was registered as the child’s father. Soon after, she began a process of medical transition and changed her forename to a feminine one.704 Before she started hormone therapy, JK and her wife had another child. With 699 R (TT) v Registrar General for England and Wales & Ors [2019] EWHC 2384 (Fam) (UK) [Hereinafter TT v Registrar] at §50. 700 R (on the application of JK) v Registrar General for England and Wales [2015] EWHC 990 (Admin) (UK) [hereinafter JK v the Registrar] §33 701 Id. at §50. 702 JK v The Registrar, supra note 698. 703 Id. at §2. 704 Id. at §4-5. 156 the birth of the second child, JK asked to be registered as a second parent of both her children rather than as the father, similar to other same-sex women couples.705 She was refused. The court asserts that the legislation on registration of births (dating back to the mid-20th century) did not define parents as male or female. Instead, it was assumed that acting as a mother or a father to a child reflects “biological motherhood and fatherhood.”706 Alas, since the 1950s, “social relationships become more complex,” and the more recent legislation on assisted reproduction now defines parenthood in gendered terms:707 a mother is a woman who gives birth. The father is the man who had been in a recognized relationship with the mother or agreed to father the baby at the time of assisted reproduction. A woman partner of the mother would be designated parent. The court finds that JK “accepts, as she must, that she is the biological father”708 of the children, and that she cannot be regarded as a “parent,”709 as those two categories are mutually exclusive. The court further finds that children have a right to know their “biological heritage,” which entails knowing the “identity of a person’s biological father.”710 Thus, if the court were to agree to designate JK as a parent, that would infringe on her children’s right to “biological heritage” as it would suggest that the children always had “two female parents.”711 JK and her partner ensured the court that they would share this information with their children at an appropriate age, and that their parents would do so were they unable, but the court still worried about the risk that the children would be denied this “important information.”712 The court finds that children born of assisted reproduction can request information identifying 705 The UK Human Fertilization and Embryology Act 2008, c.22 (Eng.) [hereinafter: HEFA] replaced the designation father with “father/parent” on the official forms of birth registration. The addition of parent was meant to accommodate instances where the partner of the “mother” is also a woman, such as in the case of a non-trans lesbian couple using reproductive technologies to have a baby. 706 JK v the Registrar, supra note 698. at §31 707 Id. at §40 708 Id. at §93 709 Id. 710 Id. at §93. 711 Id. at §113. 712 Id. at §113 157 their “biological parents,” yet if JK would be recognized as a parent, her children would not be able to receive this information. What is the nature of this important information? In the context of assisted reproduction, it would seem that the importance of this information, if any, lies with knowledge of genetic heritage, not information regarding the gender identity of donors. The fact that the court replaces genetic heritage with biological heritage is just another manifestation of its presumption that fathers and mothers are essentiality different. What I mean is not to suggest that sperm and ova are the same thing, or that giving birth is not a unique contribution to the process of human reproduction. What I mean is that the court synecdochally substitutes sperm for father and ova for female under the guise of biology. Why would JK and her partner hide from their children the fact that they are genetically related to both parents? Is the court worried that JK would deceive her children by telling them she is a ‘real’ mother? It seems this question would be far more relevant in opposite cases, in which one or more parent is not genetically related. The court seems to suggest that the category ‘parent,’ defined in the context of assisted reproduction as a woman, rather than a female, whose partner gave birth, only applies to people who have been designated at their own birth as female. In this context, JK is only pretending to be a woman, thus cannot be designated as parent, and must be designated as father. The biological presumptions connecting parental designation and the category ‘woman’ arose again in a more recent English decision. Rejecting the request of a trans man to be recognized as a father, the High Court of Justice Family Division adopted what it believes to be a gender neutral definition of maternity: “the term ‘mother’ is free-standing and separate from consideration of legal gender, thus in law there can be male mothers and female fathers.”713 The decision addresses TT, a trans man who gave birth. Unlike the JK case, TT had both already reclassified his sex and conceived his child through assisted reproduction. Thus, if we follow the JK case and the assisted reproduction law, TT was either supposed to be a woman and a mother or a man and a father. TT asked to be a father; the court answered that he is a mother. 713 TT v Registrar, supra note 697 at §251. 158 While TT had already reclassified his sex as male at the time of birth, and thus requested to be registered as the father or a parent, the court ruled he is a mother. The court finds that there is a strong case in favour of defining mother as the person who gives birth, irrespective of gender. The fact of the assisted reproduction legislation definition of man and woman in relation to maternity and paternity does not change the common law position on the roles taken in “a biological process.”714 Thus the court finds the following:715 [that] ‘mother’ or a ‘father’ with respect to the conception, pregnancy and birth of a child is not necessarily gender specific, although until recent decades it invariably was so. It is now possible, and recognised by the law, for a ‘mother’ to have an acquired gender of male, and for a ‘father’ to have an acquired gender of female […]716 The court is naively uncritical of its amalgamation of what it imagines as biological realities and legal categories in ways that erase social realities. Arguing that parenthood is not gendered is a daring move given the rich legal history of fighting for women’s rights in relation to reproductive justice, or the still common practices of patriarchal inheritance and property rights.717 The court is faced with a reality in which a major qualitative difference that has justified maldistribution of labour and capital, the ability to bear children, can no longer can be relegated to women only. Thus, the court reinforces the difference as a biological disposition, allowing it, much like in the JK case, to continue its role in upholding these differences as meaningful in distributive terms. Yet, this argument cannot stand within the court’s own reasoning, given that the assisted reproduction legislation, as the court noted, does designate as a parent the woman partner of the 714 Id. at §139. 715 Id. at § 146. 716 Id. at § 149. 717 See for instance: Elissa Braunstein & Nancy Folbre, “To honor and obey: Efficiency, inequality, and patriarchal property rights” (2001) 7:1 Feminist Economics 25–44. 159 mother, also defined as a woman.718 If the term mother is a biological description and not a social position, to the extent that the court is willing to set aside the definition of a person who gives birth as a woman, why can’t it give up the term mother? If paternity is not gendered, then why are the women partners of persons who give birth not simply designated as fathers? And if “mother” can be male and “father” can be female, why can’t “parent” be both? That is, if the TT ruling is applied to JK, then the argument that registering her as a parent would harm the children by “suggesting two female parents at birth” cannot stand. While the court in the case of JK did not justify its act of synecdochally replacing sperm with father, the TT court claimed that giving birth should designate one as a mother in order to prevent the hypothetical situation of a parentless child. The court does not explain why this parented child must have a parent named mother. The court further attempted to justify the disclosure of “biological contribution” with the argument that some genetic defects are related only to the ova.719 This is not only a weak argument to justify an entire exclusionary legal scheme, it further reflects the concern that trans people are potential deceivers who would prefer to withhold relevant information from their children than to share that they are trans. Why is the court so worried that JK or TT would hide from their children the fact that they are trans? What is “biologically unjustified” in designating OG as a father and Mutter as mother? Why does Yonatan’s pregnancy constitute a change in “biological circumstances” that necessitates reverting his sex reclassification back to F? Does the court believe that trans men are pretending to be fathers, but are not men? Do courts thinks that trans mothers and parents are not really women? Are courts worried that trans people would deceive their children into thinking they are ‘real’ mothers and fathers? Asserting the voice of biology positions trans experience in contradiction with ‘truth.’ This contradiction is a known form of transphobia: trans people who are not recognized as trans 718 §42 of HEFA (supra note 699) states: “if at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership or a marriage with another woman, then subject to section 45(2) to (4), the other party to the civil partnership or marriage is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be). 719 TT v Registrar, supra note 697, at§ 193. 160 are deceivers who can be exposed as “not really a man or a woman” and trans people recognized as trans are always already pretending to be man or woman, thus not truthful.720 This anxiety over trans people as pretenders and/or deceivers is primarily expressed in terms of protecting the child’s best interest. The Child’s Best Interests According to article 3(1) to the UN Convention on the Rights of the Child (UNCRC) the “best interest of the child” is the primary consideration in all actions concerning children, “whether undertaken by […] courts of law, administrative authorities or legislative bodies.” The convention does not define this interest, but instead sets the child’s best interest as an interpretive principle of the convention. Thus, one can learn what the child’s best interest is from the way it is implemented. In different jurisdictions and legal systems, this principle has been employed differently and at times against non-hegemonic types of families, including gay- and lesbian- headed families,721 as well as indigenous families.722 In almost all cases dealing with trans parental designation reviewed in this chapter, the parents argued that it is in the child’s best interest to have their lived realities recognized. Birth certificates that ‘out’ trans parents affect the children, as they expose them — by association — to anti-trans harassment, discrimination, and violence. 723 The child can be affected by the instability of the child-parent relationship, for instance when the parent’s connection to the child is called into question because the parent looks like a father but is assigned as a mother.724 Having their lived realities concur with legal recognition is also essential for the child’s mental 720 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 351. 721 Victoria Clarke, What about the children? Arguments against lesbian and gay parenting (Elsevier, 2001); Daniel Rivers, “‘ In the Best Interests of the Child’: Lesbian and Gay Parenting Custody Cases, 1967–1985” (2010) 43:4 Journal of Social History 917–943. 722 Chris Cunneen & Terry Libesman, “Postcolonial trauma: The contemporary removal of Indigenous children and young people from their families in Australia” (2000) 35:2 Australian Journal of Social Issues 99–115; Raven Sinclair, “The Indigenous child removal system in Canada: An examination of legal decision-making and racial bias” (2016) 11:2 First Peoples Child & Family Review 8–18. 723 Center for Gender Advocacy, supra note 75, at §264&247 724 Id. at §246 161 wellbeing, 725 as they internalize the state’s delegitimization of their parent and family. 726 Children of trans parents avoid activities that require their parents’ consent or presenting their birth certificate, ranging from school trips to enrolling in college.727 Courts rarely deploy these scenarios in understanding the best interest of children of trans parents, and instead focus on protecting the children from alleged deceptions of their parents. The Child’s Interest in Recognition of Their Lived Realities In its 2015 decision designating a trans man who gave birth as father, the Swedish Gutenberg Administrative Court resorted to the UNCRC. The court ruled that in order to protect the child’s interest, the standing law, defining the mother as the person who gave birth, should be applied in analogy. The analogous application of the law allowed the court to determine that designating the birth person as a father was justified because it entails a lesser risk of involuntarily disclosing the parent’s gender non-normativity. Following this decision in January 2019, Sweden became the first jurisdiction in the world to legislate trans parental reclassification.728 In the earliest Quebec case dealing with trans parental designation from 1988, the Superior Court also understood parental reclassification to be in the child’s interest.729 In that case, a trans man who gave birth before the reclassification of his sex asked to give up his parental rights as a mother and adopt his son as a father. The father resorted to adoption instead of demanding outright reclassification of parental designation, a demand which would most likely have failed in a system that, at the time, still sterilized trans people who asked for legal recognition. 725 MJ vs Quebec, supra note 69, at §15 see also with respect to child interest in having their parents recognize see: Tomer Shechner et al, “Relations between social support and psychological and parental distress for lesbian, single heterosexual by choice, and two-parent heterosexual mothers.” (2010) 80:3 American Journal of Orthopsychiatry 283; Margaret F Brinig & Steven L Nock, “How Much Does Legal Status Matter-Adoptions by Kin Caregivers” (2002) 36 Fam LQ 449. 726 Center for Gender Advocacy, supra note 694, at §222 727 Droit de la famille – 480, [1988] RJQ 1138, SOQUIJ AZ-88031110 (QCTJ) (Can.) [hereinafter Droit de la famille – 480]. at 5-6. 728 Regeringen och Regeringskansliet, “Modernare regler om assisterad befruktning och föräldraskap”, (20 March 2018), online: Regeringskansliet 162 As this decision dealt with approval of adoption, it centred the child’s best interests. The court was under the impression that the request for parental reclassification in the form of biological adoption was made in the interest of the child, and that the parent had always acted in the child’s interest, including during gender transition. According to the court, the parental request reflects the parent’s concern over the possibility that the child would be ‘othered’ because of his parent’s sex reclassification.730 Thus, the court ruled that it is in the child’s best interest that the child’s birth certificate reflect the family’s lived reality without the obligation of sharing his parent’s sex reclassification with anyone. This decision had limited availability to other trans parents, as it was only available to single parents731 and required the lengthy and risky process of adoption, in which one had to give up their child to regain parental rights.732 The decision became even less relevant after the aforementioned MJ decision, which de facto rejected this understating of the child’s best interest. While the Quebec decision was ahead of its time, the Swedish decision might be orienting future decisions.733 On October 10th 2018, the Parliamentary Assembly of the Council of Europe, an assembly of members from the national parliament of contracting countries to the ECtHR, published a resolution, whose aim was as follows: [To] provide for transgender parents’ gender identity to be correctly recorded on their children’s birth certificates, and ensure that persons who use legal gender markers other than male or female are able to have their partnerships and their relationships with their children recognized without discrimination.734 730 Id. at 6-7. 731 Joyal, René. "Transsexualisme et identité parentale" (1989) 20 Rev Droit U Sherbrooke 155 at 158. 732“Trans Rights are (not just) Human Rights: Trans Legal Advocacy Outside of Human Rights Law” Samuel Singer, at 10. 733Following the Swedish legislation, on October 10th 2018, the Parliamentary Assembly of the Council of Europe, which elects judges for the ECtHR, published resolution 2239(2018). Section 46 of the resolution aims to “provide for transgender parents’ gender identity to be correctly recorded on their children’s birth certificates, and ensure that persons who use legal gender markers other than male or female are able to have their partnerships and their relationships with their children recognized without discrimination.” 734 Council of Europe, resolution 2239 (2018) §46. 163 The decision of the European council might be reflected in an ECtHR ruling in the near future,735 as there are cases involving a trans parent currently being deliberated at the ECtHR. OG has appealed to the ECtHR,736 and there are indications that the English case of TT is headed in that direction as well. The Child’s Interest in Their Biological Heritage Still, at this time, courts have generally shown a high level of creativity in understanding the child’s interest when prohibiting trans parental designations. In stark contradiction to the Swedish ruling that the child’s best interest necessitates an analogous reading of assigning parental designations, in the German Mutter case, the court ruled that an analogous reading is prohibited in the name of the child’s best interest. According to the court, the best interest of the child is that their parent’s designation reflects the parent’s reproductive contribution.737 In the OG case, the German court elaborated on this interest in biological contributions, finding that not disclosing said biological contribution would harm the child’s right to privacy. If OG were to be allowed to register as a father and single parent, this would cause people to wonder who gave birth to the child and conclude that his father is a transsexual.738 Similar reasoning was presented in the English case of TT, where the court ruled that if the child’s birth certificate only names a father it would be clear that said father has birthed the baby, thus allowing people to assume that the father is trans.739 The reasoning in these two cases defies common logic. If a person who presents as a man and is named, say, Gregory, is designated a mother, there is far greater chance of that parent being exposed as trans. In fact, during the child’s life prior to adulthood, the period in which they are to be protected by the principle of the child’s best interest, their birth certificate is likely to be 735 This not strictly a recognition appeal, but an appeal of a Russian transgender woman who had been deprived contact with her children post transitioning on the account that she would expose them to “non-traditional sexual relations” (see: Statement of Facts in A.M and others vs. Russia App Nos 47220/19 (Communicated on Sep 4th 2019) (ECtHR). 736 Statement of Facts in O.H v Germany App. No. 53568/18 (Communicated on Feb 6 th 2019)(ECtHR). 737 Mutter decision, supra note 681 at §17. 738 OG decision, supra note 680, §21 OG 739 TT vs. the Registrar, supra note 697, §223 164 presented in the presence of their parent. Furthermore, the court assumes that the use of birth certificates would be limited and that the parent can ask for a blocking notice. The court again ignores the important fact that trans people and trans parents, precisely because of their gender nonnormativity, are more likely to be asked to provide identity documents for themselves and their children.740 The child’s interest arising from these arguments is to protect them from the possible disclosure of the deceptions of their parents, who claim to be fathers when they are not ‘real men.’ In the interest of the children of those ‘real men,’ the German court finds that given the possibility that the child’s sperm donor might want recognition as a father, it is in the child’s interest to prohibit the recognition of OG as a father.741 The fact that the sperm donor signed away his parental rights is irrelevant to the court.742 The court insists on saving space for the ‘real’ father. Similarly in the case of TT, the court finds that the right of the trans parent to be registered in congruence with their gender identity may conflict with the rights of other parents.743 The fact that, in the opposite cases, Mutter and JK had partners who consented to their declaration of maternity, was also ignored. The court thus protects the child’s interest from their parents pretending to be who they are not. The English court contends that designating JK as a parent can be contradictory to the children’s interest in knowing their “biological heritage.”744 In the TT case, they found that the right of a child to know the “biological identity” of their parents is of vital importance, explaining that this does not only mean who gave birth, but also who provided ova.745 Likewise, the German court found that children of trans people should not be affected by “biologically unjustified” parental designations that hide “genetic origins.” 746 740 I thank Prof. Peter Dunne for this valuable insight. 741 OG decision, supra note 680, at §30 742 Id at §30. 743 TT vs. the Registrar, supra note 697, at §238 744 Ibid. at §62 745 TT vs. the Registrar, supra note 697, at §256 746 OG decision, supra note 676 at §19 165 What the German and English courts do not consider is that children of heterosexual parents do not have a right to know their biological heritage or biological contribution of their parents. Maternity is designated in relation to the act of giving birth, which does not denote genetic relations. Paternity is assumed based either on the affinity between the parents or on a declaration, neither of which denotes genetic relations. Thus, in the heterosexual course of events, a child’s right to know their biological heritage is violated by the parental designations. The claim that it is trans parents that undermine this right is unsound, for what they undermine is the presumption that children of heterosexual parents have such a right to begin with. In trans parental jurisprudence the child’s “best interest” in “biological heritage” more often coincides with the administrative state’s interest than with their own lived realities. The court’s strict adherence to understanding the child-parent relationship through the ‘biological’ prism, read together with its specific implementation of the child’s best interest principle, further implies that these arguments reflect the administrative state’s interests. The biological deployment of the child’s best interest reveals the state’s anxiety over the loss of sovereign power over gender, conjoined with the belief that trans people are pretenders whose deceptions should be regulated. The administrative state’s desire to protect its interest is thus manifested in the inalienability of the public registrar. What exactly is this interest, and why are trans parents presumed to harm it? State Desires In the appeals of trans parents, the administrative state’s interest in stability and coherence is postulated as contradicting the interests of people who gave birth to be registered as fathers and of people who provided sperm to be registered as mothers. By surveying the use of state interest in decisions and legislation, the following section will try to understand what these interests are protecting, and suggest that what is at stake is the administrative state’s fantasy of inalienable, definable, and governable identities. Presenting trans parents as pretenders serves the broader interest in the truth claims of the public registrar. In the appeals of trans parents, the administrative state interest and the public interest seem to be interchangeable. The interest in coherence, stability, and accuracy of public registrars — much like other interests suggested by the state and courts — are at times presented as state 166 interest and at other times as public interest. In any case, these public interests are guarded by the administrative state; it is hard to tell, as the case review will show, where the state ends and the public begins. The A Priori Status of Maternity The most persuasive public interest argument brought forward in litigation of trans parents is the a priori status of designating maternity in relation to the act of giving birth. As mentioned, the court in the TT case finds that it is this “single element, namely recording the identity of the person who gives birth, which is at the centre of the coherent and certain scheme.”747 The UK birth registration scheme requires that the act of ‘birth,’ occurring “when a baby is born to a parent who carried him or her during pregnancy,” be documented.748 Similarly, the German court in the case of OG asserts that the coherence of the legal scheme requires that parental responsibilities would be first allocated to the person who gives birth, defined as the mother, and that further responsibilities, of the person defined as father, would be assigned in relation to the mother. 749 The aforementioned Israeli Supreme Court discussion also revolved around the question of whether a newborn can enter the public registrar without a ‘mother.’ This argument is persuasive not because of the reasons the courts state, that is, for the sake of coherence; rather, it is persuasive for temporal reasons. There is a public interest in allocating parental responsibilities at the moment of birth. 750 As newborns are completely dependent on others for their survival, there is an interest that they will be the responsibility of someone (preferably someone who wants them and has the capacity to care for them, that is, not the state). There are time and cost justifications to presume that the person who gave birth is responsible for the child at the moment of birth, as they are undoubtedly present in that moment, unlike other parties who might also be willing and able to care for the child. Insofar as it can be 747 TT vs. the Registrar, supra note 697 at §265. 748 Id. §266. 749 OG decision, supra note 680 at §27 750 For further readings see: Jessica Feinberg, “Whither the functional parent: revisiting equitable parenthood doctrines in light of same-sex parents’ increased access to obtaining formal legal parent status” (2017) 83 Brook L Rev 55; Pamela Laufer-Ukeles & Ayelet Blecher-Prigat, “Between Function and Form: Towards a Differentiated Model of Functional Parenthood” (2012) 20 Geo Mason L Rev 419 at 464. 167 rebutted, the presumption of the parental responsibilities of the person who gives birth is coherent. This coherence does not justify the allocation of differentiated status for parents who gave birth and are automatically designated as mother. The claim that only maternal designation is automated is contradictory to the legitimacy presumption, under which the father is also designated automatically at the moment of birth by virtue of his legally recognized relationship with the mother. The idea that maternity is delegated first is a fantasy, as paternity is delegated at the same moment by force of prior conditions. For the UK court in the TT case, “mother is a free-standing term,”751 merely denoting a person’s role in conception, pregnancy, and birth of a child.752 If the parental responsibilities of the person who gave birth are secured through their a priori registration, what is the interest in designating them as a specific kind of parent? The court fails to further justify the need for the category mother to denote gestational relations, suggesting only that the term ‘gestational parent’ would be against the best interest of the child because it would suggest their birthing parent is not a woman, ‘outing’ the parent as trans.753 The German court does not deny that mother is not ‘free standing term,’ but points to a difference in acquiring the status, that is the fact of giving birth (and thus also if there is no ‘mother’ one can assume the father gave birth and ‘out’ the parent). I have addressed the limits of these arguments previously and continue to wonder, if ‘mother’ is indeed ‘free-standing’ given its assumed naturality allegedly proven by birth, why is it even needed? If we are to register the parent who gave birth automatically as a parent, why do they need to be assigned a differentiated category? The English and German courts believe that coherence requires a differentiated designation of parental roles based on certain biological acts, yet the courts themselves cannot seem to stop believing that these acts denote differentiated legal characteristics and abilities. That is, the act of giving birth merely denotes the parent’s bodily ability to bear children, it does not suggest what kind of parent they will or should be. Suggesting 751 TT vs. the Registrar, supra note 697, at §269 752 Ibid at. §149 753 Ibid at §264 168 that recognition of trans parents’ gender identities would have devastating effects on the coherence of the legal system conceals another important fact: the anxiety over the motherless child arises in cases of genetically and biologically related parents. Trans parents are not trying to run away from parental responsibilities – they are trying to assert it. Together, the desire for coherence and the anxiety over the loss of the mother beg the question “what is the object of this administrative desire?” The Return of the Coherent Mother The JK decision locates the public interest within relevant legislation, the UK Gender Recognition Act.754 Section 12 states that reclassification would not affect the status of a person as the father or mother of a child. In both the JK and TT cases, the court found that the purpose of this provision is to ensure that the parent-child relationship does not dissolve with the parent’s sex reclassification, leaving the children legally parentless.755 It is unclear how this legitimate purpose would be harmed by the designation ‘parent’ or by any other form of recognition of a trans parent’s gender identity. In the case of JK, the Court recognizes the possibility of retaining the child-parent relations, yet it also finds that the provision protects the coherence of the public registrar by directly relating to the parent’s specific designation.756 That is, the state interest in coherence supercedes the fact that child- parent relations can be retained. The Gender Recognition Act was enacted before the relevant legislation on assisted reproduction, which added to the UK law the possibility to be registered also as parent and allocated the designation mother to women. The fact that Section 12 predates relevant legislative developments — though the court acknowledges this fact in JK’s case — further elaborates the preference of the state interest by both denying JK’s claim to be a parent and TT’s claim that he is not a mother insofar as he is not a woman. 754 §12 Gender Recognition Act 2004, c.7 (UK) 755 JK vs the Registrar, supra note 694 at §108 756 Id. at§123 169 Furthermore, Section 12 refers specifically to children born before reclassification; in JK’s case, the children were born during reclassification, and in the case of TT the child was born after reclassification. Thus, the courts apply a temporal reading of the provision. This temporal reading is justified by the public interest in “coherent and fair administrative practices,”757 which means in this context that a birth certificate “shows the position as at birth, and that cannot be retrospectively changed in the light of later events.”758 The German court in the case of OG similarly finds that not adhering to “biological reproductive functions” would severely harm the coherence of the German legal system. The court finds that maternity and paternity are not arbitrarily interchangeable because of the difference in the conditions of their assignments and their legal consequences.759 OG cannot be a father because he did not provide sperm. The only way to designate a child’s father, legally and factually, is if there existed a mother who gave birth.760 Thus, recognizing the self-attested gender identity, i.e., recognizing the paternity of a person who gives birth, would harm the coherence of the German legal order.761 Section 11 to the German Transsexual Law,762 states that sex reclassification would not retroactively affect the child-parent relationship, except if these are children adopted post- reclassification. For the court, the legal provisions of the civil code that define maternity and paternity, read together with the Transsexual Law, account for the public interest in the coherence of the legal order. For these reasons, much like in the English cases, the court interprets Section 11 as applying also to children born after reclassification. Who or what is the object of this coherence? In designating as a Mother a person whose presentation is taken to validate a claim to paternity (a person socially perceived as a father by dominant culture), i.e., he appears masculine and his child relates to him as ‘dad,’ or vice versa, 757 Id. at §62. 758 Id. at §104. 759 OG decision, supra note 680 at §27 760 Id. at §27 761 Id. at §45 762 Transsexual law, supra note 605. 170 the state creates incoherence in the public register. The claim that the trans dad or mom creates incoherence is a claim about what is documented by the public registrar. TT, JK, OG, and Mutter each ask that their gender identity determine their “real sex”763 as parents. For them, sex reclassification is meant to legally affirm what they have always been and thus reflect their status as parents. The state is willing to recognize their gender identity as their ‘real sex’ insofar as it reflects a feeling of incongruence with their sexed body and its expectations. The state is willing to recognize the ‘wrong body’ of trans people through their claims about their gender identity, but, for the administrative state, that only reaffirms that the public registrar documents the congruence of sexed bodies and gender identities. However, when they use that body or bodily material to become parents, they ‘break’ this deal: they show that they can use their body, which can be ‘right’ and can perform in accordance with its expectation, making their claim of gender identity suspect. Thus, affirming identities of trans parents harms the coherent order in which people with penises (producing sperm) are men and fathers and people with vulvas (out of which babies can be birthed) are women and mothers. Recognizing trans parents would allow them to pretend that they have penises and vulvas in order to deceive the public into believing that they are indeed mothers and fathers. State Desire for Inalienability The conflicting narratives on what is recorded on the public registrar and how these records protect the state and public interest in regulating the gender identities of trans parents become clearer by turning to legal decisions prohibiting medical interventions as precondition for sex reclassification. The state interest in the coherence and stability of the public registrar, better understood as a question of who can make truth claims and on what basis, self- identification or a “particular sort of genitally based anatomy,”764 is further illuminated through the state interest inalienability. 763 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 383. 764 Ibid at 401. 171 As noted, the European Court of Human Rights (ECtHR) is likely to rule on the matter of trans parental designations in the near future. The issue has already been raised in the court in the context of the surgical prerequisite for sex reclassification. In its 2017 judgment on the joint matter of A.P., Garçon and Nicot v. France, 765 the ECtHR found that requiring medical intervention that can undermine fundamental aspects of intimate identity, including parenting, cannot stand.766 The issue of parenthood was discussed only indirectly in the ECtHR judgment, but it has troubled the presiding judges in all levels of litigation. Most obviously, the court found that sterilization is a grave breach of the right to family life,767 and that prohibiting sterilization requirements contributes to trans people’s right “to found a family.”768 The court was accurate in noting the difference between forcing these preconditions upon applicants for reclassification769 and the fact that some people wish to undergo procedures that can (currently) cause infertility as part of affirmative gender care.770 France, the court found, failed to respect trans people’s right to private life. The court did accept France’s interest in securing the “principles of inalienability of civil status,” which allegedly ensures “the reliability and consistency of the civil-status records” and more broadly provides legal certainty. 771 The French legal system’s deployment of the concept of the inalienability of civil status — the idea that a person does not have a right to give away the assignment conferred upon them at birth772 — echoes the question of trans parental designation. ECtHR did find that France had only a narrow margin of discretion in balancing its interest in the 765 Nicot v France, supra note 144. 766 Dunne, “Legal gender recognition in Europe”, supra note 34. 767 Nicot v France, supra note 144 at §128 768 Id. §37 citing The Council of Europe paper entitled “Human rights and gender identity” 769 Id. supra note 182 §132 770 Id. at §126 771 Id. §132 772 Or at the moment in which they become a citizen and France issues them a birth certificate. 172 inalienability of civil status with the right to respect private life, which also includes a right to gender identity (for individuals and parents).773 The unwritten principle of inalienability is considered an essential part of French law.774 “L’indisponibilité de l’état” can also be translated as the ‘unavailability of personal status,’ a translation that might better reflect the idea that the state has almost complete sovereignty over one’s ‘status,’ including their sex assignments and parental designation, and that the individual does not have the autonomy to change it. According to this principle, one’s status should only be changed as an effect of law, since something in the legal situation has changed. France’s main concern pertaining to sex reclassification was the possibility that excluding sex from this principle would undermine the system as a whole. Much like in trans parental jurisprudence, how this undermining would come about remains open to interpretation. When it comes to parenting, there is a dual challenge to civil status, both vis-à-vis the sex of the parent as well as their status as a parent. The dual force of inalienability was apparent in the application of Stéphanie Nicot, one of the three applicants in A.P. vs. France. Nicot’s application directly linked trans parental designations to questions of reclassification. Nicot, who was 64 years old at the time of the judgment, shared with the court that she had been aware of “belonging to the female gender” from an early age.775 At age 20, she had a daughter with another woman and hid her trans identity, first out of fear of suffering violence, and later because she was afraid of losing custody of her daughter. Only once her daughter grew up did she start living as a woman.776 The court, at first, rejected Stéphanie Nicot’s application for reclassification because she had not provided proof that she had “surgery to remove external characteristics” of her “original 773 Interestingly, though the term gender identity is assumed to not belong within the French language, the ECtHR does use this term in French throughout the judgment. This use of the term gender identity and not sex is another manifestation of the move toward recognition of trans rights vis-à-vis the legal concept of gender identity as separated from the category of sex. 774 See: Gobert, supra note 55. 775 Nicot v France, supra note 144. at §42-43 776 Id. at §42-43 173 sex.”777 Hence, she was not a “genuine transgender person” who had “genuinely altered their sexual anatomy to make it conform as closely as possible to their preferred gender.”778 When Nicot stood firm in her refusal to provide any medical documentation to the court, it went on to offer the following judgment: Granting S. Nicot’s request would effectively amount to the creation by the courts of a ‘third gender,’ namely persons of female appearance who nevertheless continue to have external male sexual anatomy but can marry a man. In the opposite case, a person who is male in appearance would continue to have female genitalia and could thus give birth to a child!!! As the case-law currently stands, such a situation is wholly prohibited.779 Besides the fact that this is the only time I have encountered three exclamation marks in a legal judgment, it is notable that the inalienability of civil status empowers the judge not only to prohibit reclassification, but also to justify sterilization and prohibition of trans parental designations. In its reply to the ECtHR, the French government continues this line of thinking: It was because the reliability and consistency of French civil-status records were at stake, and in the interests of the necessary structural role of sexual identity within the country’s social and legal arrangements, that a change of gender in civil-status documents could be permitted only when the irreversible nature of the gender reassignment process had been objectively established.780 While the principle of inalienability of the civil status is foreign to many other jurisdictions,781 this explanation of French state interest suggests that the inalienability logic 777 Id. at §45 778 Id. 779 Nicot v France, supra note 144 at §48 780 Id. at §104 781 Previously the ECtHR granted common law broader discretion over sex reclassification, noting that the English registrar merely documented historical facts while the French system defines the present identity of an individual. 174 prevails with regards to trans parental designations across jurisdictions. The German and English courts — with their adherence to state’s interest in coherence, stability, and accuracy — are as worried as France is about the structural role of ‘sexual identity’ and administrative state’s ability to control personal legal status. The Israeli Supreme Court has also demonstrated its concern over these issues when justifying the subjection of expecting trans parents to an examination by a medical committee to ensure that their original “sex change” was indeed authentic.782 The very assignment of sex and other status-related categories, such as parental designations, reflects public interest in legal regulation through distributions of differentiated legal capacities, much like the logics that animate the principal of the inalienability of the civil status as a whole. Under this principle, public records are not a reflection of subjective identities (and the sovereign autonomous will of the individual), but rather of objective facts that can only be changed by a legal decision (reflecting the sovereign capacity of determination). In the context of sex reclassification, then, the question is whether the sex classification should be aligned to one’s presumably born gender identity, or if the body one was born with needs to align to desired sex classification. This tension in sovereignty is at the heart of trans parental designation jurisprudence and is also revealing of the limitation of sovereignty. The Limitations on Inalienability By allowing for sex reclassification, the principle of inalienability of the civil and public registrar is limited, and allowing reclassification based on self-identification only further restricts the principle. Where proof of bodily modification is a precondition for recognition, medical intervention serves as external proof that justifies the deviation from the principle. When recognition is based on innate gender identity, an exception to the principle of inalienability is formed. The current trans parent appeals reviewed here reflect the latter scenario. (§52 B v France, Merits, App No 13343/87, A/232-C, [1992] ECHR 40, IHRL 64 (ECHR 1992), 25th March 1992, European Court of Human Rights (ECHR)). The court later found that even if these are historic records they do not justify the violation of private life, noting that in case of adoption new birth certificates are issued.( Christine Goodwin v. the United Kingdom (application no. 28957/95), July 11, 2002 at §87 782 HCJ Parents transcripts, supra note 670 at 7. 175 This exception always already defines the borders of the rule. The main administrative apparatus that constructs the inalienability of sex classifications, the assignment of differentiated legal status at birth, remains unchallenged. The very system of legal sex categories remains unquestioned, and so do the distribution of wrong and right male and female bodies. Reclassification is justified as an act that negates a wrong body. Trans people are affirmed by the law as men and women through the recognition that, unlike other people, their gender identity, understood to be determinative of their innate nature, is incongruent with their body. The reemergence of the negated body in jurisprudence concerning the gender identity of trans parents brings back sex reclassification to the boundaries of the inalienability principles. Once reclassification expands the borders of the individual self to one’s familial relationships, it is again limited by supposed facts of the body. Yet, the body was there all along. A trans parent’s legal sex is recognized, even without bodily modifications, only insofar as their body is deployed in ways that reflect their declared self-identity. Trans men are not required to be sterilized, but they cannot give birth and claim paternal privileges (while remaining trans) or are perceived as deceivers. Trans women are not required to have genital or other surgery, but if they make maternity claims they are perceived as pretending (to be trans). By asking for recognition of their parental role, trans mothers and fathers are considered to be less genuinely trans and are relegated back to their ‘original gender.’ The German court designated trans fathers as female and mother. The English court claims mothers can be male, yet fathers cannot be female. The Israeli court ratifies a policy that revokes sex reclassification of trans parents because of an assumed ‘hormonal’ change of circumstances,783 and Thomas Beatie 783 For the past 10 years I was unable to make up my mind whether or not I should reclassify my own sex. Anxiously watching the policies of the Israeli public registrar incoherently shift, I kept accumulating the required documentation without ever submitting it. The last document I acquired, in August 2019, was a certificate from the state-appointed medical committee for gender affirmative care. I did nothing with the certificate, as I was troubled that if I reclassified from F to M I would lose access to reproductive health care. I always thought I would do it after I become a parent. At the time, I was trying to receive state funded embryo cryopreservation with my partners. As part of this process, my partner who provided sperm and I had to sign a standardized joint parenthood agreement stating that: “ I ______hereinafter ‘the man’ and I _ hereinafter ‘the woman’ […] have in joint agreement, out of free choice, and without any financial reward promise from any third party, have approached the IVF clinic at Ichilov hospital for the purpose of having an IVF process with the sperm of the man and the ova of the woman. The man hereby declares that he is interested and agrees that the woman would be fertilized with his sperm and that he is aware that his obligations toward the child do not depend on this agreement and they would apply in any case as a biological father.” In article 5, both parties declared they are not married to other people (which is 176 becomes a lesbian. Trans parents are looked upon as gender deceivers trying to pass as genuinely trans in order to pass as men and women who can become mothers and fathers.784 In the face of the lived reality challenges to the principle of inalienability, the administrative state tries to retain its sovereignty over the power to differentiate bodies through the assignment of sex, parenthood, and other status-based categories. The administrative state desires to keep the symbolic inalienable and feels threatened by individual acts that differ from the meaning conferred upon bodies at birth. When trans parents do just that, in the most factual way, by producing babies in defiance of the dominant symbolic order, they reveal this order itself to be just one possible imaginary. But their claims to parental gender identity are nonetheless also embedded within the individuating logics of legal categories. It is a battle, as will be further explored, over the different versions of the wrong body narrative. Is it possible to step out of this narrative altogether and remain within the boundaries of the law? significant in Jewish law which governs the section of family law for Jews). In article 6, both parties agreed to assume parental obligation arising from ‘biological parenthood.’ As both my partner and I are trans, I advised us to not sign a statutory declaration that our genetic material makes me a man and her a woman. I made us a gender neutral version of the document which we signed. Both of us were approved for state funded “fertility preservation” for being trans. The Jewish state would not recognize us as parents but would still pay to make sure we have babies to preserve the state’s Jewish majority, which Israel considered a crucial element in its power of self-determination. We had planned for our other partner to carry the child, which would mean that, legally, I would not be registered as a parent at all (as there are no multiple parents allowed). To create some sort of intentional legal link between my future child and myself, I wanted the child to have the same surname as me, and the three of us decided to change our surname. In August 2019, during our first embryo cryopreservation cycle, I went to the public registrar to change my surname. The clerk asked me if I had changed my “personal status” to which I answered a definitive no (fearing I might be questioned whether I am married). The clerk looked at me and at the computer and then went out and talked to someone. Finally the clerk came back and asked me whether I might have changed my sex. This is how I found out that, unbeknownst to me, the state-appointed medical committee for gender affirmative care had sent the registrar a copy of the document I procured from them (a step not mentioned in any official protocol). The clerk said “so we should reclassify your sex.” I answered that I had come in just to change my surname. The clerk insisted, saying “you’re approved for reclassification, there is no reason not to do it while you’re here.” And so she reclassified my sex. Just before going to the public registrar, that very morning, I was at the IVF clinic having blood work and an ultrasound to see if it was time to harvest my the eggs. I received the results of the blood test that afternoon. I therefore know for a fact that on the day my sex was reclassified from F to M my estrogen level was 28 times the average level for females during ovulation, and 270 times the average level for males. 784 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 403. 177 Non-Binary Parental Designation The different attitudes toward binary and non-binary trans parental designation brought forward in the Quebec Centre for Gender Advocacy further reflect the state’s interest in symbolic inalienability and the limits of state-based recognition. The different treatment binary and non- binary claims receive suggests that it will be far easier to recognize all those assigned F as mothers and all those assigned M as fathers (as I expect to happen, sooner or later), than to challenge the administrative power of differentiation and signification. For over fifteen years, ever since the MJ decision in 2004, the Quebec Directeur de L’état Civil (DEC) very strictly held to the position that a parental designation at the time of the birth of a child can never be changed. The DEC refused to deviate from the Quebec Superior Court’s interpretation of the law, even when this position caused administratively illogical situations, in which some people were registered as both the father and mother of their children, as in the case of Jenna Jacobs.785 As described, in February 2019, in response to Jenna Jacobs’ demands in the Centre for Gender Advocacy lawsuit, DEC made a U-turn in its policy on trans parental designation. Currently, reclassification of parental designations is not an option but rather the automatic consequence of sex reclassification. 786 This automatic change might not reflect the lived experience of some trans-headed families, for instance in families in which the children continue to relate to their parent as they always did (for example, recognizing one’s parent as a man but continuing to call him “Mom”). Reading this policy shift together with the DEC refusal to adequately address the needs of non-binary parents, reaffirms the assignment of parental designations in relation to assigned sex at birth. By making parental designation reclassification automatic and seemingly mandatory, DEC adopts the logics that these changes are not a matter of willful decision by the applicant, but are rather a legal consequence of sex reclassification. In doing so, DEC affirms the principle of inalienability. First, by suggesting that parental designation reclassification is not a matter of 785 Centre for Gender Advocacy, supra note 649, at 44-45. 786 Id. at 45. 178 self-determination or identification but a result of a previous legal decision. Second, by adopting a strong version of the wrong body narrative, in which gender identity determines ‘true sex,’ DEC reaffirms the idea that all those marked as F are to be Mothers, and all those marked as M are to be Fathers. The reform makes the principle coherent within current modes of sex reclassification. Reclassification of parental designations becomes mandatory, not because the categories of motherhood or fatherhood have become intangible, but because parental realignment is required in the service of coherence. That is, by making reclassification of parental designation mandatory, the civil status affirms its automatic allocation of paternity and maternity in accordance sex classification. For Jacobs and other trans women who had access to sex reclassification, sperm might not equal paternity, but only insofar as their bodies are considered wrong. Automatic reclassification of trans parents as mothers and fathers presents an exception to the rule that reaffirms the practice. The symbolic order protecting the stability and coherence of the civil registrar and its power of inalienability remains powerful. This order assumes that the usual allocation of parental designations based on birth assignment of the parents is justified. That is, DEC continues to hold that one’s visible genitals at birth are the a priori determinants for the legal relations between them, their children, and the state. The constitutive normalizing practice of symbolic inalienability through the allocation of sex and parental designation remain invisible, as it continues to be understood as the documentation of extrajudicial facts. The claim made by non-binary parents within the same lawsuit best exposes this normalizing logic. The case of Samuel Singer, a non-binary parent claiming second parental designation included in the Center for Gender Advocacy lawsuit, is case in point. In 2014, Samuel and his partner Sarah Blumel had a baby through an IVF process to which Samuel contributed ova and Sarah the pregnancy.787 Samuel initially asked to be registered as the father of the child and Sarah as the mother. 788 They filed for a birth certificate, which arrived a few 787 Id. at 51. 788 Id. 179 weeks later and designated both parents as mothers.789 DEC informed Samuel that since his assigned sex is female, he can only be registered as a mother. Samuel was told that even if he reclassified his sex at a later date, he would not be allowed to reclassify his parental role.790 Samuel requested to be designated as neither mother nor father, but rather as a parent.791 In February 2019, shortly before the public hearing in the case, DEC announced that parents could be reclassified or registered as “filiation” rather than “mother” or “father.”792 Filiation is a strictly legal term recognizing the relationship between a parent and a child.793 Singer, who is also a legal expert on trans rights in Canada, testified that this term is unknown outside of the legal profession.794 He argued that using such an unfamiliar term would further out him and his child as others, and that this designation does not address his request to be registered as a parent.795 The court has yet to reach a decision on the issue. Why was DEC able to respond to Jenna Jacobs in ways that exceeded her demands, yet reluctant to offer Samuel Singer a viable solution to his challenges? Might it be related to the symbolic inalienability of civil status or the fact that, while Jacobs’ demands could be translated into a binary logic of birth assignments, Singer challenged the very fundamentals undergirding this logic? By demanding to be designated as ‘parent,’ the accepted gender-neutral word for both mothers and fathers, Singer is asking to undo, in his case, the link between the sex-assigned body and the designated parental role. Singer can be seen as challenging the structural justifications for the civil status practices for allocation of status. Samuel Singer chose to champion a non-gendered designation, questioning the justification for differentiated parental designations. Singer demand to be recognized in relation to the dominant scheme. That is, his demand to be recognized beyond the binary presumes the 789 Id. at 52. 790 Id. 791 Id. at 51. 792 Id. at 53. 793 “Filiation in its primary sense, the legal relationship concerning a child and her mother or father. It is also the bond of kinship linking a person to his or her ascendants.” See: Robert Leckey, “Filiation and the Translation of Legal Concepts” (2010) 2 Legal Engineering and Comparative Law 123–141 at 124. 794 Centre for Gender Advocacy, supra note 649, at 54. 795 Id. 180 status of the binary dominant order. 796 In response, DEC insisted to relegate Singer to the barely legible outskirts of parental binary order. It is as if Singer asked to be addressed by the pronoun “they,” and in response was addressed as “it.” There is no wrong or right body onto which Singer’s demand can be projected, and thus it is relegated into the realm of the unrecognized. Samuel Singer’s demand does not suggest there are no subjective binary gender identities, or that parents cannot identify as mothers or fathers. Instead, Singer’s demand forces the law to take a deeper look at the arbitrary and changing boundaries between what is assumed to be a willful act of the individual and what is assumed to be the effect of the law. To continue to hold this gap and protect the already limited inalienability of civil status with respect to sex and parental designations, it seems natural for DEC to insist on using the strictly legal term of filiation,797 since the term reflects a legal decision rather than a willful change — a state rather than individual interest. It is probable that Singer’s demand will ultimately be accepted. Other jurisdictions have forgone the categories mother and father in order not to classify same-sex parents as such.798 The Israeli Court suggested to the parties in Maraton-Marom’s case to agree on the designation parent for all trans parents, yet both parties rejected the offer.799 The plaintiff attorney was worried that only LGBT parents would be designated as such and thus be othered.800 The state believed such changes should be subjected to legislation.801 Whatever resistance currently exists, the forces of inclusion will most probably soon cover non-binary identities as well, insofar as non-binary will be understood as another individuating position. For indeed, non-binary gender identity can also be assimilated into an expansive wrong body narrative, which the state will, in turn, wish to correct. 796 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 341. 797 Interestingly, the designation parent is available in other Canadian jurisdictions to people who, like Sam Singer at the time of his child’s birth, are designated female. 798 Kelly, “Equal Parents, Equal Children”, supra note 637 at 253n1. 799 HCJ Transcript, supra note, 670 at 1. 800 Id. at 8. 801 Id. at 2-3. 181 The Sexuality of Sex Classification In all of the different formulations of state and public interest appearing in the cases reviewed, what is never fully accounted for is how exactly trans parental designations cause the harms of which they are accused. There seems to exist an ongoing legal presumption that the integrity, stability, coherence, and/or accuracy of the civil and public registrar would be endangered by allowing trans parental designations, but they are not. As seen in Quebec and in Ontario,802 through the forces of normalizing inclusivity, legal systems can easily recognize trans parental gender identities. Moreover, based on my experience representing trans people and my own family formation desires, I would venture to say that people do not wait for the state to tell them if they can be fathers or mothers or parents, nor do they adhere to what the state has to say about their plans and practices. I am thus not advocating any specific solution, but rather I am arguing that the issue at hand is less of practical nature and more a question of Foucauldian governmentality, addressing “the conduct of conduct and the technologies of the self.”803 Diverging Forms of Privatization The refusal to accurately designate trans parents in accordance with their gender identities stands in opposition to the general transition in family law from status to contract, with a growing emphasis on individualism.804 While status rules were unalterable by the individuals involved, contract-based family law recognizes that individuals can structure their family relations as they see fit.805 What differentiates a contract from status is that the former reflects an emphasis on individual will, and the latter reflects state-imposed rights and obligations, reflecting the institutional will.806 802 All Families are Equal Act, supra note 599. 803 Cossman, supra note 616 at 895. 804 Cossman, supra note 635 at 427. 805 Jill Elaine Hasday, “The Canon of Family Law” (2004) 57:3 Stanford Law Review 825–900 at 834. 806 Through framework offered by Duncan Kennedy’s work in The Rise and Fall of Classical Legal Thought. Like Taylor, Kennedy provides an illuminating historical account of the separation of contract law and family law: “[…]distinguish the emerging law of contract (which was only consolidated into an abstract form modelled on 182 This shift is neither complete nor unidirectional. Regulating through status is not a thing of the past, but is rather an ongoing structure of family law.807 Family law continues to regulate also through inalienable status, specifically in relation to how and if people can contract out,808 which can partly explain the resistance to demands of trans parents (being seen as contracting out of their parental roles). Parents’ fundamental property rights to their children are mostly how status regulations continue to inform the issue of termination of parental rights, which occurs only in situations showing clear and conclusive evidence of unfitness.809 As demands of trans parents are about asserting certain parental rights rather than terminating them, both from a contractual position and from a status position, it seems that family law would support trans parental designations. Excluding trans parents from these rationales of family law suggests that the desire of trans parents for recognition is still seen as commercial relations and an ideological commitment to the market-based realization of individual wills in the second half of the nineteenth century) from household-based relations that were seen as not ‘properly’ contractual because of superadded elements that individuals could not ‘will’ their way out of using contract.” See: Taylor Luke Taylor, “Marriage, work, and the invention of family law in English legal thought” (2020) 70:2 University of Toronto Law Journal 137–176 at 143. As Kennedy writes more broadly on the emergence of status, “the categories the analytical jurist purged from legal core had to do with the relationship once by [paternal] despotic power […] The specific provision concerning parental obligations of support or the master’s liability for the torts of servants were state limitations on arbitress. ‘Such conditions are as immediate or remote result of agreement’ came to be constructed, through the undiscriminating use of the word status, with relation with which the state imposed a particularly demanding rather than a particularly lax moral standards of conduct” (see: Duncan Kennedy, The Rise & Fall of Classical Legal Thought (Beard Books, 2006) at 199. 807 Though Cossman and Hasday describe trends with American family law, I employ their overarching theoretical findings as indications of broader trends in the field and the tensions within it, which I take to play out differently in different legal contexts. For instance, while Israeli family law on marriage and divorce is still controlled by religious law, parenting and property are mostly determined in family courts. Thus, in Israel the status-contract tension plays out differently but nevertheless exists (Margalit, supra note 635.). Further, all legal systems addressed in this chapter include a possibility for recognition of children born through assisted reproduction which includes contractual agreements, alongside ‘traditional’ status-based parental assumptions (see: Leckey, supra note 793 at 137.). 808 Cossman, supra note 635 at 427. Cossman specifically notes, in relation to neo-liberal trends in family law, the growing emphasis on establishing paternity in the context of receiving welfare benefits, as well as the emphasis on responsible fatherhood in the more conservative discourses. (Id at 425§454-458). In both scenarios (that as Cossman notes align at times and contract at times), the tug-of-war between status and contract with family law is much less focused on the question of who can assume responsibility over the child than who is not allowed to abandon such responsibility. 809 Hasday, supra note 805 at 850. 183 evidence of unfitness.810 Why does the demand for recognition of lived realities of trans people who have children give rise to concern over parental capabilities? As discussed in previous chapters, the privatization of gender afforded by the growing legal recognition of a right to gender identity has allowed for reclassification of sex while sustaining reproductive capabilities. This privatization has also absurdly reaffirmed the status of the sexed body. It is on the backdrop of this tension that family law’s suspicion over trans parents’ parental capabilities should be understood. Brenda Cossman has described three visions of privatization within family law, two of which are clearly evident in the legal discussion reviewed: privatization as private choice, and privatization as the restoration of traditional family values.811 Privatization as private choice entails an increasing emphasis on decision making over public norms and reflects a growing prominence of privacy and autonomy.812 This is the kind of privatization sought after by a person who gives birth and asks to be designated as a father, or a by a person who declares maternity. Privatization as the restoration of traditional family values envisions a return the family as a private (and highly gendered) sphere, “as the natural site for a range of care giving responsibilities.”813 In similar terms to those employed by courts dealing with trans parents, the conservative discourses within family law have been articulated “in terms of children’s need for a two [opposite-sex] parent family, and the problem of ‘fatherless’ children.”814 Only here the fatherless child is joined by a motherless one, further accounting for the resistance to trans parents’ gender identities. Cossman shows that when neo-liberal and neo-conservative visions of privatization converge, family law’s power extends, and when they diverge, conservative discourses prevail.815 Thinking about the various doubts cast upon trans parents in relation to their gender identities as parents, and as sexed subjects who are parents, the dynamics of convergence and 810 Ibid. 811 Cossman, supra note 635 at 421. 812 Ibid at 426. 813 Ibid at 429. 814 Id. at 429. 815 Cossman, supra note 635 at 421. 184 divergence are apparent. Trans people are understood as self-determining subjects through manifestation of a neo-liberal right for identity, but once this right returns to destabilize conservative understandings of the family, it is blocked. These dynamics also support my hypothesis, that, much like same-sex marriage, trans parents’ right for private identity as reflecting individual choice816 could be easily turned into an affirmation of the family as a self- governing private unit.817 Conversely, along the very same lines, we might see the institution of the family, like the institution of marriage, reclaimed in ways that spoil its right-wing celebration. Designating people who give birth as fathers or people who provide sperm as mothers does not risk child-parent relations, as the child would still have parents, regardless of how the law names them. There is no reason to think that a child would not be able to know the record of their ancestry or ‘biological heritage’ if their genetically-related parent is still registered. Are children more genetically related to their mothers than to their fathers and vice versa? And why are genetic relations so essential to begin with? Paternity, as the law agrees, can easily be asserted even in the absence of genetic relation. In cases of assisted reproduction, children can also be related to two mothers or two fathers (Spoiler alert: they can have even more). If it is not the child-parent relationship that is being guarded by refusing to recognize trans parents, then what is the child protected from? Anti-Trans Futurity In trans parental designation jurisprudence, the courts speak in the name of biology to protect the child’s best interest against the deceptions of their parents, an interest that surprisingly coincides with that of the public, guarded by the administrative state in symbolic inalienability — a desire for coherence. And yet, this clearly extrajudicial voice of biology is often heard precisely when trans and non-binary people commit the most ‘natural’ act, that is, use their bodies to reproduce. This ‘natural’ deployment of ‘unnatural bodies’ generates what I describe as administrative gender dysphoria. 816 Ibid at 437. 817 Cossman, supra note 616 at 895. 185 This dysphoria is expressed through the position that trans parents are less real than other parents. As stated, from a strictly genetic perspective, all parental designations are presumed rather than proven, and yet this administrative dysphoria is aimed foremost at trans people who are genetically related to their children. What would have happened if OG, Yonatan Maraton- Maraton, or TT had not given birth or even used their ova, but had instead hired a surrogate? What would have happened if JK, or Mutter, or Jenna Jacobs and their partner had used a sperm donation? If they were not genetically related parents, but rather were deemed parents as a result of the legally regulated use of reproductive technologies, they might have had other legal avenues for recognition. The resistance to trans parental designations is not about what is “natural,” but about the narrative of nature animating administrative regulations, onto which the state projects its technologically mediated citizen. The Oedipal trinity of parental designation was supposed to resolve the sexual indeterminacy of the administrative state by providing clearly defined criteria for the classification of sex-based legal kinship. The anxieties related to the state’s primary attachment to the mother (positioned by the act of giving birth at the core of delegating parental status) were supposed to be resolved by giving the mother to the father (whose paternity is automatically presumed by the virtue of having the legal phallus – the status “male” – granting him the right to a relationship with children born to the woman, and thus with her). However, trans people show up and demand recognition of their incongruently conceived parenthood, giving rise to institutional gender dysphoria. This form of dysphoria reflects the state’s desire, in Foucauldian terms, to control the population at large and life itself through the administrative-regulatory power of allocating and policing categories of being and doing; in other words, the power to assign reproductive futurism.818 The future, as Lee Edelman argues, is kid’s stuff. The newborn is a signifier of the future, of the continuum of human generations, 819 “as the embodiment of futurity collapsing undecidedly into the past, the image of the Child as we know it: the Child who becomes[…] ‘the 818 Lee Edelman, No future: Queer theory and the death drive (Duke University Press, 2004) at 2. 819 Ibid at 3. 186 father’ of the Man.”820 That is why the assignment at birth is an assignment of reproductive futurism: the birth assignment of sex allocates the newborn body and the self a specific parental position within the reproductive order. The newborn is designated as signifier of the generation they are expected to create. The Child embodies “the telos of the social order and comes to be seen as the one for whom that order is held in perpetual trust.” 821 The Child is the future-facing citizen ideal, “entitled to claim full rights to its future share in the nation’s good, though always at the cost of limiting the rights ‘real’ citizens are allowed.”822 Refusing the “collective reproduction of the Child” threatens the social order, in which the queer is positioned in abject, by negation of futurity.823 As Edelman suggests, signification was not originally made for queers.824 Following Edelman, it can be argued that trans bodies were not supposed to signify the future,825 let alone produce it. The future is only the stuff of some kids,826 as Jose Muñoz and other queers of colour theorists argue.827 Opting out of the future is denouncing various principles of hope that are relational.828 Though relationality “is not pretty” in the sense that it reflects vulnerability,829 suggesting that relationality has never been available to queers is only possible “if one frames queerness as a singular abstraction that is subtracted and isolated from [the] larger social 820 Ibid at 10. 821 Ibid at 11. 822 Ibid. 823 Ibid. 824 Ibid at 3 & 5. 825 Though, as Susan Stryker notes, the mid-20th century rise of trans intelligibility that followed the media frenzy over the gender affirmative surgeries of Christine Jorgensen should be read in the context of the space age. According to Stryker, when humanity aimed its colonial power toward outer space, the possibility of scientifically altering one’s sex seemed as another frontier of scientific advantages, as a thing of the future (see: Susan Stryker Lecture - “Christine in the Cutting Room: Cinema, Surgery and Celebrity in the Career of Christine Jorgensen” (2013).). 826 José Esteban Muñoz, Cruising utopia: the then and there of queer futurity, Sexual cultures (New York: New York University Press, 2009) at 95. 827 For instance see: Georgis, supra note 338 at 160n2. 828 Muñoz, supra note 826 at 94. 829 Ibid at 93. 187 matrix.” 830 Muñoz argues that Edelman’s antirelational negation of futurity reproduces “a monolithic image of the child that is indeed always already white.”831 Just as the racialized and queer kids are not the “sovereign princes of futurity,”832 neither is the trans kid, who is expected to become a father rather than a princess. Hegemonic bodies and selves are far more expected to reproduce, while the parenting of those deemed ‘others’ is questioned.833 Futurity is more than a choice whether or not to reproduce, it is the present orientation toward the future. 834 The negation of the here and now, of futurity, opens the potential to bring different kinds of futures into existence,835 embracing the possibility for social transformation.836 Muñoz’s formulations provide a utopian vision in which trans bodies produce and reproduce transversal spaces for change. While Muñoz and Edelman disagree over whether to reject or reclaim the future, they agree that, as Foucault and Butler established, the driving force behind the category of sex and the regime of normative sexualities is the fantasy of control over reproduction that ensures the viability of the species. For Foucault and Butler, whose ideas on sex and gender I have employed throughout this dissertation, homosexuality is othered primarily because it does not lead to ‘natural’ reproduction. For Muñoz, the link between homosexuality and nonprocreative sexuality reflects “The Great Refusal” that is queerness.837 For Edelman, the homosexual is antisocial because he does not reproduce.838 But what about those deviant bodies that do naturally (and 830 Ibid at 94. 831 Ibid at 95. 832 Ibid. 833 For a brief history of LGBT parenting, see: Rachel Epstein, “‘ Married, Single, or Gay?’ Queerying and Trans- forming the Practices of Assisted Human Reproduction Services” (2014) at 4–9. In the context of black and indigenous parents, “research carried out across Canada suggests that Black and Indigenous families are reported to Child Welfare Agencies at a higher rate than any other group despite the fact that there is no evidence to suggest that Black and Indigenous parents abuse or neglect their children at higher rates than other racial parents.” See: Paul Banahene Adjei & Eric Minka, “Black parents ask for a second look: Parenting under ‘White’Child Protection rules in Canada” (2018) 94 Children and Youth Services Review 511–524 at 511. 834 Zohar Weiman-Kelman, Queer expectations: a genealogy of Jewish women’s poetry, Suny series in contemporary Jewish literature and culture (Albany: State University of New York Press, 2018) at xiii. 835 Ibid at 134. 836 Georgis, supra note 338 at 160n2. 837 Edelman, supra note 818 at 134. 838 Ibid at 39. 188 often homosexually) reproduce? The indisputable heterosexual nature of reproduction is actually highly disputable. The limitation on trans parental designation reveals futurity’s power to survive reclassification, bringing to light the structural similarities between reclassification based on medical intervention and reclassification based on subjective gender identity. That is, reclassification based on subjective gender identity fails to liberate gender non-normative bodies from the reproductive expectation placed upon them. One is no longer required to be sterilized, but one is still expected to have given up the desire to become a parent. The past remains stable, but the present is allowed to modify in the service of a future in which the reclassified assigned sex and the gender expectation associated with it are once again congruent. The distribution of gendered and sexual life chances continues. The assignment of futurity goes on. The Failure of White Motherhood A black trans critique of the inalienability of futurity reveals the legal concepts of sex and gender as inscribing the dominant logic of identities in the process of limiting movements that have “no clear origin and no point of arrival” and controlling “conditions of possibility.”839 That is, the inalienable future assigned at birth through sex is not only pivotal for the individuation of the legal self, but is integral to all other systems allocating life chances along the lines of sameness and difference, such as race, colonialism, class, and ability. When one is assigned female at birth, they are expected to become a mother, a position in the socio-legal order that is always already circumscribed by the dominant logics of citizenship and its differentiated conditions of possibilities. If the racialized mother is always a failure of motherhood in one way or another (for not being white), then the racialized trans mother is already a failure of both racialized fatherhood and white motherhood. The black trans woman can never escape the double reproductive expectations of her failures, and her past is enlisted to prevent her access to a future she was never supposed to have. 839 Snorton, supra note 85 at 2. 189 In 2000, Rosalyn Forrester, a queer woman of colour and a mother of two,840 was at the centre of a family court dispute in Ontario when her former spouse filed for full custody of their children because Ms. Forrester had transitioned.841 Attempting to block contact between the child and Ms. Forrester, the former spouse issued a restraining order “prohibiting Ms. Forrester from attending fifty meters from her former spouse’s residence and from molesting, harassing or annoying her former spouse or child.”842 At the same time that her lawsuit was heard by the family court, she was suspected of breaching the restraining order, which resulted in three incidents of arrest and a forced strip search. Though Ms. Forrester repeatedly asked to be searched by a female officer, she was subjected to the degrading and humiliating843 process of “split search” in which a male officer searched her genitalia and female officer searched her upper body.844 The allegations were later withdrawn. 845 Following these events, Ms. Forrester’s mental health deteriorated, and, particularly, her social anxieties were made worse by fear of the police.846 Ms. Forrester later had suicidal thoughts and described the police as the “private army” of her former spouse.847 She filed a human rights complaint against the Peel police and won, forcing the police to change their policies. At the family court, Ms. Forrester’s former spouse asked for sole custody of their child, claiming Ms. Forrester’s mental health severely limited her capacity to make decisions in the child’s best interest. According to the former spouse, this acute mental health crisis was a result 840 “Our Research Team”, online: Trans PULSE Canada 190 of Ms. Forrester’s gender dysphoria. 848 Initially, the court granted the former spouse sole custody and the above-mentioned restraining order. Ms. Forrester was first arrested three days after the restraining order had been served. She only regained unsupervised visitation rights after the charges were withdrawn and on the condition that she would not take the child to a neighbourhood known “to be frequented by transsexuals.”849 Ms. Forrester demanded to have equal custody. The court found that Ms. Forrester’s “transsexual status” should not deprive her contact with her children. The court credited the former spouse for managing to maintain a relationship with Ms. Forrester for the benefit of the child, despite the fact that Ms. Forrester’s “disclosure” of her trans status had a devastating effect on her former spouse’s “sense of identity, fostering a sense of betrayal.”850 The court found it legitimate to presume that depression in relation to gender dysphoria can harm a child’s relation with their parent. The fact that Ms. Forrester experienced sexual assault851 by the police for her trans status as a result of the restraining order issued by the same court remains mostly unaccounted for.852 The court found that in this specific case, thanks to the former spouse, the child was not harmed by the “transgendering process.”853 Therefore, the court found that since Ms. Forrester was no longer experiencing gender dysphoria, she could be allowed to resume the “parenting role that she enjoyed prior to starting on her course of transgendering,”854 that is, of a father. Though the court recognized Ms. Forrester as trans and used female pronouns when referring to her, the court insisted on addressing her solely as the father, concluding the following: “It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to 848 Forrester v. Saliba, supra note 839, at §8. 849 Id. at §9-11 850 Id at §20 851 Forrester vs. Peel Police, supra note 840, at§39. 852 The former spouse deployed the argument that Ms. Forrester was dangerous because she was arrested. The court found that given that the charges were dropped, and that Ms. Forrester did follow the court order, she was not dangerous. In this context, the court mentioned that Ms. Forrester was very stressed, not because of her unjustified arrest, but solely because she was withheld from her child. (See: Id. at 29). 853 Id at §30 854 Forrester v. Peel, supra note, 840 at §27 191 enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being.”855 If the court is untypically willing,856 under problematic terms and suspicious omission of relevant facts, to accept that neither being trans or black857 is reason enough to deny one custody, why cannot the court accept Rosalyn Forrester as a mother? Why was she not regraded as woman as she self-identified?858 Looking closely at the conditions under which trans people are allowed to reclassify their sex versus the conditions that render their gender identities as parents illegible, might further contextualize and conceptualize Rosalyn Forrester’s experiences of the law. The Battle of Wrong Bodies The insistence that trans parents’ lived experiences are not natural exposes the resistance to their demands for recognition as a battle of ‘wrong bodies.’ Legislation and legal decisions preventing accurate identification of trans parents imagine that trans people are born with a psychic incongruence which is “fixed” through processes of gender affirmation. As a result of these processes, trans people become men and women. Within law, this means that trans people become male or female through the act of sex reclassification. Yet, insofar as gender affirmation can never create ‘true sex,’ and that requiring medical intervention is no longer legitimate, the law reluctantly accepts that gender identity alone can (self) determine sex classification, adopting a ‘strong’ wrong body narrative.859 Still, within this strategic retreat of state sovereignty, sex classification retains its logics first and foremost as a reflection (and concealment) of external genitals at birth, and trans people are accepted into the 855 Id. at §30 856 For the discrimination of trans parents in custody cases, see: Dierckx et al, “Families in transition”, supra note 597 at 37. For the discrimination of Black parents in relation to child welfare interventions, see: Adjei & Minka, “Black parents ask for a second look”, supra note 833 at 511. 857 Ms. Forrester was identified as Black in her human right complaint (see: Forrester v. Peel, supra note, 840 at §28). 858 “Ms. Forrester testified that she “came out” in 1998. She testified that her attraction to women rather than men actually furthered her feelings of confusion, since she was puzzled about why she felt she was a woman yet was attracted to women. It was during counselling that she accepted that she is a transsexual lesbian and has more recently identified herself as a ‘femme,’ as opposed to what she described as ‘butch’ or ‘andro’. She stated during cross-examination: I am a woman.” (See: Forrester v. Peel, supra note 840, at §30) 859 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 401. 192 categories of male and female only marginally, “owing to a decision to take [their] self-identity seriously. Besides that, [they’re] actually very close to the border between male and female.”860 What the process of sex reclassification suggests is that the external genitals of newborns are indeed reliable indictors of innate truth (gender identity) that cannot transition. Recognition of incongruent gender identity is dependent on relations of negation toward birth assignment. Yet, this assignment is still presumed to be descriptive, thus reclassification is allowed insofar as it includes a desire for a different body. In other words, what makes a body ‘right’ is its alignment with an expected gender identity, and what makes it ‘wrong’ and deserving of ‘self- identification’ is its incongruence. When trans people use their own bodies to reproduce, they are “exposed” as deceivers, as not really men and women, insofar as these categories reflect a dominant alignment of bodies and psyches, i.e., reflect the ‘right bodies.’ In both versions of the ‘wrong body’ narrative, “gender terms are largely interpreted via the mainstream practice of representing genital status through gender presentation.”861 Trans parents’ attempts to claim paternity and maternity position them as pretenders, constructing their public gender presentation and private genitalia as misleading.862Admitting to giving birth certainly does not represent one as having a penis, and declaring to produce sperm surely negates the representation of a vulva. Although one could give birth and then get a penis, or freeze sperm and then get a vulva, “the surgically constructed genitalia […] can be transphobically viewed as at odds with the genitalia that nature intended.”863 Only ‘real’ men can be fathers and ‘real’ women mothers. Thomas Beatie having to adopt his own children is case in point. In the context of adoption, the ‘natural’ parenthood, parenthood by blood, is considered the original or ‘true’ kinship between a child and parent. Through adoption, children can acquire a substitute parental 860 Ibid at 386. 861 Ibid at 401. 862 Ibid at 392.` 863 Ibid at 393. 193 relation that imitates kinship by blood, but its effect is fictitious. 864 As Beatie describes, “Thomas the man adopted a baby from Thomas the woman.”865 “Thomas the woman,” the mother, was the ‘true’ parent and “Thomas the man,” the father, is a fictitious one. Trans parents are subjected to what Talia Mae Bettcher calls reality enforcement, systematically subjecting trans people to allegations of deception and pretence: [Reality enforcement] has four essential ones: identity invalidation, the appearance-reality contrast, the deceiver-pretender double bind, and genital verification. Identity invalidation is the erasure of a trans person’s gender identity through an opposing categorization (e.g., a trans person sees herself as a woman, but she is categorized as a man). This invalidation is framed in terms of the appearance-reality contrast (e.g., a trans woman may be represented as ‘really a man disguised as a woman’). And this contrast is manifested in one of two ways that constitute a double-bind for trans people—namely, passing as nontrans (and hence running the risk of exposure as a deceiver) or else being openly trans (and consequently being relegated to a mere pretender). Genital verification can be a literal exposure (as with Brandon Teena, Gwen Araujo, and Angie Zapata) or else a discursive reveal through euphemistic comments like ‘was discovered to be anatomically male.’866 Thomas Beatie, JM, Jenna Jacobs, Yonatan, OG, Mutter, JK, TT, Sam Singer, and Rosalyn Forrester have all seen themselves as one kind of parent but were categorized otherwise. The invalidation of their kinship realities was communicated by courts as a rejection of their claims that they are the mothers, fathers, and parents they claim to be, and was further enforced 864 Leckey, supra note 793 at 138. 865 See email correspondence, supra note 11. 866 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 392. 194 by the court ordering them to opposite parental designations,867 by attempts to revoke their sex reclassification,868 or by relegating them to unrecognizable territories.869 For being open about their trans status, by virtue of their appeals for recognition, they all were treated as pretenders. And finally, they were all forced into a legal kind of “genital verification” through detailed examinations of their birth anatomy and their specific genetic and bodily contribution to the conception of their children. Given that the basis for reality enforcement is an understanding of gender as omnipresent and intersectional achievement, “race and class and other oppressions (as situated and interactional accomplishments) inhere in the same practices.”870 It is therefore clear why, of all the cases reviewed in this chapter, Rosalyn Forrester was subjected to the most severe reality enforcement, culminating in brutal “genital verification” by both the police and the family court. Her genitals were literally exposed for the officer to make comments such as: “what are you?”871 and “you still have a dick so we can still search you.”872 The Family court was overly sympathetic to the former spouse’s feelings of betrayal upon the “disclosure” of Ms. Forrester’s trans status. 873 Consequently, the court respects Ms. Forrester’s gender identity only to the extent that she retains her parental, paternal, role prior to her “Transgendering,”874 that is, insofar as she does not further harm the “real” mother’s “sense of identity.”875 This form of reality enforcement toward lived realities means that the trans woman, in her own life, can be considered a mother by her child, can be treated as the mother of child within the family’s social milieu, and can even carry the burden of care and judgment 867 JM was told that he will “always remain the mother”; OG was told that though he is legally male he would continue to be considered a woman; Mutter was found to give a false declaration that she is a mother; JK was told she cannot be a parent cause that would suggest her children had two female parents at birth; TT was recognized as male but still must be a mother. 868 Thomas Beatie was accused of same sex marriage because he gave birth; Yonatan had his sex reclassification revoked. 869 Jenna Jacobs was forced to such levels of misrecognition that she was both a mother and a father; Sam Singer was relegated to the unrecognizable territory of filiation. 870 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 394. 871 Forrester v. Peel, supra note 260, at §38 872 Id at. §40 873 Id at. §20 874 Id at. §27 875 Id at. §20 195 placed upon mothers, all while being considered a man living as a woman by the broader dominant culture.876 The act of giving birth, much like the convergence of sperm and ovum into an embryo, does not care what it is called or what the body performing birth calls itself. Bodily acts and functions are not symbolic, but the legal terms attached to them are. Through the visible process of meaning-making, the administrative state marks the borders of protected inter-generational and temporal subjectivity, the counters of the symbolic. Trans parents are denied the privileges of futurity, not only because of their non-hegemonic bodies, but also because they offer new forms of social relationality.877 And they do that whether you let them or not. Through their bonds of kinship, trans parents are orienting their children toward a future which holds a potential, as Dina Georgis writes, for subverting authority, not by offering a new law, “but simply because [they are] no longer beholden to the law or sustained by it.”878 Trans parents open the space to claim the tragedies of the “postcolonial”879 legal framework of the right to gender identity, asserting kinship though indeterminate bodies. Talia Mae Bettcher incites us to reclaim the wrong body narrative by “recognizing the existence of multiple worlds of sense, worlds in which terms such as ‘woman’ have different, resistant meanings; worlds in which there exist different, resistant gender practices.” 880 876 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 389. 877 Stryker & Sullivan, supra note 50 at 61. 878 Georgis, supra note 338 at 146. 879 Ibid at 147. 880 Bettcher, “Trapped in the Wrong Theory”, supra note 49 at 403. Conclusion What is left of gender self-determination at the end of this dissertation? What is left of the power of recognition if we consider legal identities to be a speciating apparatus constructing trans and non-trans subjects as ‘biologically’ different through the deployment of ‘wrong’ and ‘right’ bodies? What is left of gender if we find that a privatized right of gender identity is incapable of addressing systemic harm? What is left of the self if we are critical of the very idea of an extrajuridical autonomous subject? And what is left of determination if we recognize that the ability to determine is circumscribed from the start? Like the self-determination of peoples, which subalternizes ‘freedom,’881 a right to gender identity fails to deliver the freedom it promises.882 A right for gender identity does not hold the law accountable for the becoming of gender, as it orients legal reform away from the category of sex itself, where the administration of gender “grips bodies to produce individuals who are at once constrained and enabled by norms.”883 A right to gender identity consents to the power relations that leave trans bodies and selves no less subjected “to the interwoven forces [such as race, class, gender, sexuality, nation, age and religion] that merge and dissipate time, space, and body against linearity, coherency, and permanency.”884 Still, which voices come into being through an enunciation of a formality by a person laying claim to a particular identity?885 Can the self-identified gendered subaltern speak? Here, I echo Gayatri Spivak’s question, Can the Subaltern Speak, by way of Dina Georgis. In a Critique of Postcolonial Reason886 Spivak tells the story Bhubaneswari, a young Hindu 881 Tully, supra note 276 at 159. 882 Ratna Kapur upends this argument to show how the human rights framework is inadequate in addressing the needs of marginalized subjects: “[The] concepts of freedom and subject formation are contingent upon dominant gender, sexual, cultural and religious norms becoming normalized, naturalized and universalized within the liberal/neoliberal framings of the rights project. In this guise, human rights appear incapable of delivering on their promise of freedom.” See: Kapur, supra note 341 at 9. 883 Morland, supra note 15 at 112. 884 Jasbir K Puar, Terrorist assemblages: Homonationalism in queer times (Duke University Press, 2007) at 212. 885 Here, I am returning to Jessica Clarke’s definition of formal legal identities “as one that comes into being through the execution of a formality by the parties laying claim to a particular identity.” See: Clarke, supra note 25 at 770. 886 Gayatri Chakravorty Spivak, A Critique of Postcolonial Reason: Toward a History of the Vanishing Present (Harvard University Press, 1999). 196 197 woman who killed herself because she did not want to take part in an assassination planned by an armed group involved in the struggle for Indian independence. Bhubaneswari anticipated that her suicide would be perceived as a response to an illicit love affair, and therefore she waited until she was menstruating to kill herself. 887 Nevertheless, her suicide was perceived by her community as a response to illicit love rather than a failure to conform to the task of assassination.888 For Spivak, this is a prime example that, stuck between the nationalist and heteronormative paradigms, the subaltern subject’s voice is lost. Georgis offers another reading of the story, focusing on what Bhubaneswari said in her silence. For Georgis, Bhubaneswari’s suicide can also be seen as a “queer form of resistance,”889 as a rejection of understood meanings of resistance. Her suicide was a refusal of certain tactics of resistance and of the political dogmatism championed by the anticolonial group with which she was affiliated.890 Georgis incites us to consider Bhubaneswari’s suicide within her unconscious resistance to the social conditions and gender representations in which she lived, seeing it as a better story “that allowed her to represent her life with dignity even if suicide is not what we would dream for her.”891 For Georgis, Bhubaneswari’s voice is a metaphor “of the wounded that can no longer survive the postcolonial better story.”892 Her desire is beyond what she knows and interferes with her ability to abide the collective demand. In other words, Georgis argues that the subaltern speaks; we are the ones who need to learn how to listen. This brings me back to May Peleg, the ex-orthodox trans leader whose story opened this dissertation. Had to Be Free Unlike Bhubaneswari, May shared many words with the world. As I said in the introduction, I followed May’s mental and physical decline throughout her final years with many others via Facebook, where she expressed a persistent desire for suicide. Upon her final, successful attempt, she left a public note which read as follows: 887 Ibid at 307. 888 Ibid at 308. 889 Georgis, supra note 338 at 58. 890 Ibid. 891 Ibid. 892 Ibid. 198 These lines are written in female form 893 but they are aimed to all genders: as you read these lines, I have already peacefully gone to sleep into the abyss. I did not suffer but slept, slept and stopped the pain and suffering I experienced throughout most of my life. Despite the loneliness that haunted me all my life, there were many at my side. I am deeply thankful for all who reached out. I die knowing that I am loved and inscribed into the hearts of many. The fault for my death should fall only on the institutional agents who do not create spaces for adequate care, the ministries of social services, of health and of justice[…] Most of all I beg the forgiveness of my children, for not succeeding in my war to return them to me and provide them with all they deserved. I lived by the values of diversity, tolerance, open mindedness, truth, justice. I want you to remember these values. I beg you to stay away from hate and strife. Stay away from anger, stand by what is true and right, keep your thought free and think critically. Follow your truth and pursue your dreams. Accept all living souls as they are. Stop fear and loathing of the Other. 894 In her final conversation with her partner, May told her that she wanted to take with her everyone’s pain and suffering, she said: “I want to die for you all.”895 While this redemptive narrative sounds Christian, May’s life was shaped by very Israeli narratives of Judaism. May was born to a Mizrahi896 ultra-orthodox family, the youngest of her father’s four children and her mother’s only child, a mother who abused her from early age.897 From age 4, May was conscious of feeling that her body was wrong.898 Nonetheless, she was sent to a segregated (both in terms of gender and intra-Jewish ethnicity) Sephardic religious day school, to a Talmud Torah. 893 In Hebrew, like Arabic, both verbs and nouns are gendered. 894 Zerrik, supra note 4. 895 Nahcmias, supra note 16. 896 A term used to denote Jews who have immigrated from the Arab and Muslim world. 897 note 9. (post dated November 30th 2014) 898 Glazer, supra note 2. 199 At the onset of puberty, May was horrified with the masculinizing of her body and remembers “sitting on the toilet with a fleishig knife899 contemplating whether to cut [her penis].”900 As a Yeshiva boy, she would often run away in search of information to validate her experience. In internet cafes she found the transgender community, but all the stories she read were of rejection, failed surgeries, and sex work.901 She decided to do whatever she could to avoid transition, a decision that took a heavy toll on her mental well-being.902 May soon found herself out of the yeshiva, living on the streets of Jerusalem, where she became addicted to heroin, for which she had to pay with her body. In her account, she was raped dozens of times in those years.903 At age 18, to rescue herself from the streets, May joined the Israeli Defense Forces, aspiring “to become a man.”904 This move not only saved her from the streets, it also served as a break from the ultra-orthodox community, whose members are exempt from the otherwise mandatory draft. Replacing her ultra-orthodox black kippa905 with the settler movement knitted kippa, as a 20-year-old soldier, May got married and moved to what she believed to be a liberal kind of West Bank settlement. May hoped that within love she could live as a man.906 The couple had two children in two years. At the time of her second child’s birth, May began suffering bouts of extreme pain. She was diagnosed with fibromyalgia and was bedridden for almost a year. She lost her job and struggled to receive social benefits, as the state did not initially recognize her condition as a disability.907 At the end of that year, she attempted suicide. May realized then that if she wanted to continue living for her children, she must first live for 899 Designated by Jewish law for eating meat products. 900 Glazer, supra note 2. .May’s Story הסיפור של מאי 901 902 Glazer, supra note 2. 903 note 9. 904 Glazer, supra note 2. 905 A yarmulke, or a skullcap. Different types of kippa mark different religious belonging. 906 note 900. 907 Glazer, supra note 2. 200 herself, and she decided to transition. 908 May went through a series of gender affirmative surgeries in Thailand. At the beginning, the transition seemed to solve all of May’s problems; her mental and physical health improved drastically, and her children were supportive of her, referring to her as Imma May.909 But she also knew, as she said, that the surgery could make her depression worse: “I did look much better but that doesn’t mean that the scars I accumulated all my life are healed. I was a dead person for 27 years and I still carry him with me.”910 May was also worried that the pressure on her mental health might intensify due to societal attitudes toward her as a trans woman. May left the illegal settlement and moved back to West Jerusalem to join a queer feminist co-op. At this point, the settlement institutions that embraced her as a young Mizrahi soldier- father turned against her.911 Before departing to Thailand, one of May’s former neighbours called her and tried to convince her not to go through with the surgery. May explained that it was a matter of life and death for her, to which the neighbour replied: “you should pick death.”912 As soon as she transitioned, she was subjected to a “systematic campaign”913 by the social services in the settlement to undermine her parental capabilities, culminating in a court order, issued in May’s absentia, depriving her of any contact with her children.914 May’s final realization that she did not want to live resulted from the denial of her right to parent.915 As mentioned in the introduction to this dissertation, while she never regained custody, at her death, the Israeli Supreme Court recognized her right to be buried under her chosen gender identity. Posthumously, she won her final legal battle against the wishes of her mother, who invoked both Jewish law and the interest of May’s children to demand she be 908 note 900. 909 Hebrew vernacular for mother Ibid. 910 Glazer, supra note 2. 911 Ibid. 912 note 900. 913 Glazer, supra note 2. 914 Ibid. 915 Ibid. 201 buried as a man.916 The court affirmed that May had her children’s best interest in mind when writing her last testimony and expressing her wish to be buried as a woman.917 Ironically, this same court would have affirmed a decision to revoke May’s sex reclassification if she had claimed to be a mother, as she, unlike Bhubaneswari, did not menstruate.918 Thus, post-mortem, the Israeli Supreme Court granted May a right for self-identification and the recognition of her parental status denied during her life. There is much more to this story, as May left a rich and documented history of her campaign to regain custody of her children, to receive disability benefits, and to have access to adequate mental and physical health care. 919 She also left a long trail of legal documents, anticipating her mother’s fight against her last wishes. How do all the words that make up this tragic story reflect Israel’s narrative of Jewish identity? Why do I suggest that she, like Bhubaneswari, is a subaltern subject whose suicide “is the voice of the wounded that can no longer survive using the postcolonial better story”? May’s escape from ultra-orthodox Judaism through the Israeli army and into the settlement movement can be contextualized, along the lines of Georgis’ reading of Freud’s Moses and Monotheism,920 as a turn toward “collective identity and religious traditions” that “offer an illusionary defence against trauma and loss.”921 Under these terms, Georgis argues that “Zionism is the narrative solution to the affective legacies of a traumatic past. It is therefore not simply a political movement in Israel but also an emotional one.”922 Zionism is a negation of the 916 CA 7918/15 Anonymous v. Freidman (November 25th 2020)(Israel). In fact, one of the documents submitted to the court by the mother was a letter from the chief Sephardi Rabbi of Israel supporting the mother’s request to bury May in an orthodox Jewish manner. In the letter, May is not named but referred to as “he who was mentally ill” (see: Letter to Adv.Dahan November 24th)(on file with author). 917 HCJ Parents Transcripts, supra note 670 at 3 918 In the previous chapter I explored the case of Marton-Maron (see: chapter 4, supra note 663, describing a hearing that focused on the question of whether the fact that a trans man can menstruate is a “change of circumstance” that justifies revoking his sex reclassification. 919 See: note 9. 920 Freud’s essay in which he hypothesizes that Moses, the political leader, was an Egyptian murdered by the Jews and replaced with another Moses, a spiritual figure who is born of Jewish mother. According to Freud, Jewish people collectively repress this history to deal with the trauma of the murder, showing how actual historical events are discarded from known memory. (See: Georgis, supra note 338 at 33–34.) 921 Ibid at 30. 922Ibid at 39. 202 history of racial injury from Europe, a “psychic war strategy that denies the connection between Arabs and Jews,” carried on the back of Israel’s external and internal Other, the Palestinians and Mizrahi Jews, respectively.923 Israeli Jewish identity is underwritten by the trauma of modern Jewish exodus, the European Jewish attempt to assimilate in Europe, to become its intellectual leaders, as Freud did, a story ending with the tragedy of the Holocaust, on the cusp of which Freud writes Moses and Monotheism. It is this tragedy that gave rise to Israel and its narrative of itself as a military shield against further trauma and loss, over and against Palestine and its inhabitants. Israel’s imagination of itself and of Israel as a European nation-state represses and resists its ongoing affective relations to its Others and to the fact that only a small minority of people, Jews and non-Jews, living under the Israeli regime have roots in Europe. Within this regime, the Mizrahi Jews, albeit a majority, were forcibly assimilated to the position of an internal Other. The Mizrahi were promised equal citizenship through military conscription, yet they were delegated to the most devalued tasks, including the daily operation of the military occupation, and denied the social capital of military advancement. The Mizrahis were skipped over in the distribution of Palestinian lands and properties in the ’50s and ’60s, pushing them out from 1948 lands and into the illegal settlements from the 1970s onward.924 May recounts how she unconsciously chose her name after that of her father, Meir, whom she loved dearly.925 In 1963, Meir, a young Jewish immigrant from Iraq,926 was chosen to serve as one of Adolf Eichmann’s bodyguards as he stood trial in Israel.927 It was a show trial, according to Hannah Arendt, that solidified the identity of Israel as the protector of all Jews from further genocides and consolidated the homogeneous Jewish identity. In Eichmann in Jerusalem, Arendt provides an account of the courtroom in which she notoriously complains that “the police” “looks Arabic. Some downright brutal types among them. They would obey any 923 Ibid at 136. 924Lihi Yona, Legal Obstacles to Mizrahi-Palestinian Solidarity (Yale Law School, 2019). 925 note 900. 926 note 9. (post-dated November 30th 2014) 927 May recognized her father in the pictures from the courtroom. 203 order.”928 Among the guards Arendt reviles, suggesting that they, like Eichmann, would follow any order, was none other than May’s father. Perhaps under these conditions we can better understand why May hopelessly attempted to “become a man” by turning to the Israeli army. In the army she might have hoped to find relief from the pain and suffering of her transness. We might further understand why she believed that, in love with the settler movement, she could be a man. From the army to the settlement, the Israeli collective identity promises to protect the Jewish man from the ever-present racial trauma and loss in exchange for a Mizrahi assimilation that constitutes one as a “failed subject” worthy of disgust. May is a postcolonial subject subjected to becoming a colonizer in the name of a regime that affectively repudiated her own histories in the name of a collective identity which displaced its own historical suffering “on Palestinians, and paradoxically on the Jews.”929 As the nationalist collective failed to provide any protection from pain and suffering, May resisted this narrative upon narrative through her maternal love for her children. By risking insecurities and vulnerability,930 she adopted the name of a father repudiated for his Arabness, returning to West Jerusalem out of the desire for a queer community “beyond the perilous dreams of safety, beyond the separation walls, and beyond consoling fictions of group bonding.”931 In West Jerusalem, May oscillated between her childhood experience of a wrong body and her adulthood knowledge that no surgeries can fix a lifetime of suffering. Though she helped shape the trans resistance movement as an activist and leader, the movement demand for self-determination did not address the assemblages of power that implicated her as trans, disabled, poor, anti-Zionist, and mentally ill, and did not resolve the profound loneliness she experienced even as she lived her life surrounded by love. May could not abide the collective demand to be free.932 In rejecting the role of the father by taking her own father’s name and subsequently taking her own life because she was 928 Amos Elon, “The Excommunication of Hannah Arendt” (2006) 23:4 World Policy Journal 93–102 at 99. 929 Georgis, supra note 338 at 45. 930 Ibid at 47. 931 Ibid. 932 Ibid at 100. 204 prohibited from giving maternal love, May, like Bhubaneswari, could no longer survive the postcolonial better story of the in-between positions of Mizrahi and trans. Like the failure of postcolonial resistance to respond to colonial violence and neo-colonial realities with anything but a demand for sovereignty, May’s story tells us that sovereignty is just not good enough in a world where one does not choose their nation, family of origin, or collective histories.933 May is perhaps orienting us to a different kind of freedom and a different kind of resistance, as Georgis learns from listening to Bhubaneswari: an alternative resistance in which “refusal to abide by the father, that is, [by] the fixed meanings and ideals placed upon us,”934 leads to rebirthing one’s self through the name of the father. May’s desire to “cut” her body with a kosher knife and her decision to die in her sleep were acts of war against the binaries of the body, of Jewish law, and sovereignty. In her absence, May demands that we rethink the binaries constructing the vision of gender self-determination, to lovingly attend to the traumas of differentiation, to our interdependencies, and to our stable stories. Dream About Things In his 2011 book Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law, Dean Spade refers us to a statement announcing the first Trans Day of Action for Social and Economic Justice organized by TransJustice, an initiative of the Audre Lorde Project, a people of colour queer/trans group. 935 TransJustice’s work has been explicitly about police violence and trans homelessness. The announcement declares that state-sanctioned gender policing “denies our basic rights to gender self-determination, and considers our bodies to be property of the state.”936 In the 2015 afterword of the reissued Normal Life, Spade states that “collective self-determination over our lives and resources”937 is a demand of the resistance to state violence that emerges from grassroots trans activism. In both contexts, Spade uses the term “self-determination” from an abolitionist anarchist perspective. Between 2011 and 2015, laws 933 Ibid at 105. 934 Ibid at 109. 935 Spade, supra note 26 at 117. 936 INCITE! Women of Color Against Violence, Color of violence: the incite! Anthology (Duke University Press, 2016) at 228. 937 Spade, supra note 26 at 160. 205 and policies known as gender self-determination, i.e., self-attestation of gender identity, emerged as a legislative norm for formal recognition,938 starting with the 2012 Argentinian law of gender identity. To what extent are the radical articulations of TransJustice and Spade part of a legislative conception of self-determination as self-identification of gender identity? What might they share despite their opposing stances? TransJustice’s articulation of self-determination calls for a redistribution of power over the self and the body from the state to its subjects as a way of resisting state sanctions. Articulations of self-determination as resistance to state violence can be tracked back to the right of peoples for self-determination in international law. The demand for collective self- determination over lives and resources is clearly echoed in the 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples (The Decolonization Declaration) which states that: “The subjection of people to alien subjection, domination and exploitation constitutes a denial of fundamental human rights.”939 Self-attestation of gender identity empowers the autonomous individual to make choices regarding their sex classification regardless, and in spite of, previous juridical assignments. As I have argued, laws and policies known as gender self-determination fail to address systemic harms because they are formulated as right for privacy regarding one’s gender identity. Self- identification does redistribute sovereignty by empowering the individual to claim a legal identity. But perhaps legal empowerment and more individuation are not actually what is needed. That is, as my critical reading of international law showed, sovereignty is not a neutral terra nullius, an empty land, it has a colour and currency. The duality of gender self-determination, acting both as reflection of decolonial ambitions and as a formal constitutional arrangement, is evident in Eric Stanley’s articulation of gender self-determination,940 which is included in the collection of key concepts in trans studies 938 In applying the term “formal self-determination,” I refer to Jessica Clarke’s definition of formal legal identities “as one that comes into being through the execution of a formality by the parties laying claim to a particular identity” (see: Clarke, supra note 25 at 770.). 939 Assembly, supra note 297. 940 Stanley, supra note 31. 206 commissioned for the inaugural issue of Transgender Studies Quarterly.941 Stanley, like Spade, roots their definition of self-determination in abolitionists and anarchist frameworks: [A] collective praxis against the brutal pragmatism of the present, the liquidation of the past, and the austerity of the future. That is to say, it indexes a horizon of possibility already here, which struggles to make freedom flourish through a radical trans politics.942 For Stanley, gender self-determination is a rejection of the “fetishistic attachment to the law” and the drive for inclusion. Stanley rejects the Yogyakarta principles, or the legislation of gender identity, as practices of constriction and of invisibilizing universality.943 Stanley makes clear that in their formulation, the self they refers to is a collective self as “an ontological position always in relation to others and dialectically forged in otherness.”944 The collective formation of gender self-determination draws upon the praxis of self-determination in “various and ongoing anticolonial, Black Power, and anti-prison movements”.945 Stanley clearly positions their formulation of gender self-determination as part of the struggle against state violence and its inscriptions of embodiments.946 Like TransJustie and Spade, Stanley position should not be read as rejecting any efforts to reduce barriers to sex reclassification or other forms of legal recognition. As noted, this formulation of self- determination promotes access to proper identification documents as an abolitionist praxis aimed at dismantling regimes of surveillance and confinement bit by bit in the goal of helping people survive now and to move toward a new society without coercive legal systems backed up by 941 Susan Stryker & Paisley Currah, “Postposttranssexual: Key Concepts for a Twenty-First Century Transgender Studies” (2014) 1:1–2 Transgender Studies Quarterly 1. 942 Stanley, supra note 31 at 89. 943 Ibid. 944 Ibid at 90. 945 Ibid. 946 Ibid at 91. 207 police and militaries.947 Still, TransJustice, Stanley and Spade do not believe that liberation or self-determination can be found in law. A closer look at the sources of Stanley’s concept of self-determination reveals a more complicated relationship with legal reform. Stanley supports the declaration that “national liberation and the overthrow of colonial and carceral rule must grow together with gender self- determination”948 by a reference to a news piece describing a protest held on July 2012 by the transgender community in Sukkur, Pakistan, against US drone strikes.949 This protest joined other protests held by political and religious groups and, in that sense, can be read as a conjoining trans and national liberation struggles. The relation between the trans struggle and the postcolonial struggle is a complex one in Pakistan’s history, as the Indian trans leader Laxmi Narayan Tripathi argued in a 2013 interview to the most widely read English newspaper in Pakistan,950 The Dawn: The [transgender] community has been marginalized by the British; we’ve had 250 years of complete non-existence. After colonisation, things changed [for the worse], after independence things didn’t change [for the better]; Before the Britishers came, we were at least treated with dignity and respect in society. We were discriminated against under the Tribals Act. Section 377 also discriminated against us.951 That is, independence did not solve the Pakistani trans community’s predicament (though by this account the predicament was caused by colonization). 947 I thank Dean Spade for this illumination of the abolitionist perspective on sex reclassification. 948 Stanley, supra note 31 at 90. 949 Dan Littauer, “Pakistan trans activists protest against US drone strikes”, Gay Star News (2 August 2012), online: 208 Looking at more recent history, there new trends (and tensions) in the relationship between trans communities in Pakistan and the decolonization project. From 2010 onwards, the Pakistani trans community, funded by the UN and international NGOs,952 has been working to normalizing local trans embodiments in the eyes of the Pakistani public.953 These efforts include the reclaiming of religious status by Khawajasira954 and strategic races in local and national elections.955 Sanam Fakir, the very same local community leader quoted in the piece appearing in Stanley’s essay (and in the Express Tribute initial report it cites), 956 has addressed the community efforts to mainstream trans people and to normalize their religious practices. Fakir herself ran in the local elections in Sukkur in 2013, and aspires to have trans people inducted into the local police.957 Thus, Fakir positions herself, and the Pakistani trans movement in general, within the frameworks Stanley repudiates. The Pakistani trans community has been highly successful in securing legal rights. In 2018, Pakistan legislated one of the most elaborate laws recognizing a right to gender identity.958 The law was designed in collaboration with local trans advocates959 and its frameworks are 952 Claire Pamment, “Performing Piety in Pakistan’s Transgender Rights Movement” (2019) 6:3 TSQ 297–314 at 300. 953 Faris A Khan, “Khwaja Sira activism: The politics of gender ambiguity in Pakistan” (2016) 3:1–2 Transgender Studies Quarterly 158–164 at 158. 954 “the term ‘khwaja sira’ has been appropriated and promoted by non-normatively gendered Pakistanis as a respectable alternative to the general public’s pejorative use of the term ‘hijra.’” (see: Faris A Khan, “Translucent Citizenship: Khwaja Sira Activism and Alternatives to Dissent in Pakistan” (2019) 20 South Asia Multidisciplinary Academic Journal, online: 209 derived from the Yogyakarta principles.960 The law creates a right for recognition of self-attested gender identity,961 defined as the innermost individual sense of self.962 In February 2020, Aisha Mughal, a transgender woman who works for the Pakistani Government as an expert on the implementation of the 2018 legislation,963 became the first trans person to be an official delegate of any country to the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). 964 In that same week, Pakistan introduced free health care for trans people.965 Adhering to a strict binary of gender self-determination as either “fetishistic attachment to the law”966 or “collectivizing struggle against interpersonal and state violence”967 is therefore clearly problematic in the Pakistani context. Within this binary, the Pakistani movement and Samman Fakir herself would be understood as those who work “to translate and in turn confine the excesses of gendered life into managed categories at the very moment of radical possibility.”968 There are valid critiques to be made regarding the Pakistani law969 and the class and language biases in the NGO economy of Pakistan.970 Still, securing legal status in the fifth most populated country on earth, under a conservative religious government, while working in conditions of extreme poverty,971 overwhelming illiteracy,972 and a legal structure that denied 960 Ali, supra note 261 at 32. 961 Transgender Persons (Protection of Rights) Act, 2018 [Pakistan] §3. 962 Id. at §2(f). 963 Naya Din, “Transgender woman Aisha Mughal represents Pakistan at UN | SAMAA”, Samaa TV, online: 210 trans people access to identification cards altogether,973 warrants a more nuanced understanding of legal reforms. The Khawaja sira struggle for recognition reveals the complex relations between formal constitutional legal arrangements and resistance to subjection and domination within gender self- determination. Gender self-determination as praxis of non-Western trans movements unearths the dialectics of collectivizing struggles and individuating aspirations, decolonial ambitions, and imperial legacies encoded within sovereignty. These productive tensions are not the sole property of gender self-determination, rather, as I explored in previous chapters, they can be mapped onto the right to self-determination of peoples in international law.974 Thinking of the self-determination of peoples as pivotal in the shift from formal to informal imperialism, by means of pacifying decolonial collective desires, also questions the ability of radical gender self-determination visions, as a collective praxis, to forge avenues for independence from juridical power. The invisibilization of power relations sustained through an international regime of individuated sovereignty warrants pessimism about radical avenues of gender self-determination. Both Stanley and Spade attempt to overcome the individualistic limits of self-determination by replacing the concept of individual self-determination with a collective one. Yet, the legacies of collective struggles in international law, as well as in the stories of Bhubaneswari and May, suggest that collective self-determination is also limited by analogous practices of constriction, universality, and individuation. 972 Rashid Ali Khuhro & Muhammad Ahtisham Shoukat, “Social Media Usage Patterns among Transgender People of Hyderabad, Sindh, Pakistan” (2020) 5:1 International Journal of Media and Information Literacy at 44. 973 Ali Hazrat Bacha, “Transgenders in KP can’t cast vote”, DAWNCOM (9 May 2013), online: 211 One could argue that formal decolonization is better than formal imperialism, and that self-identification is better than other paths for sex reclassification, for autonomous legal recognition can be articulated as a speech act for “becoming liberated.”975 Self-determination of people is a shift from the legality to illegality of colonialism, a break in a long history of European subjection of the world, and a process that was enabled by formerly colonized peoples. 976 There is also no denying that self-identification allows for greater access to proper identification documents, as well as other legal protections and public resources. It is also plausible that it provides the conditions for expression of multiple embodiments.977 The presumption of an individuated people or rights bearer “at liberty” to self-determine is key in the production of stable units of “us” or “I” that can be sorted into subgroups designated for life or death.978 This speciating production of universalizing categories—the nation-state, the autonomous rights bearer—is deployed through the distribution and redistribution of individuating sovereignty. Individuation obstructs an account of dependency on the “social and economic forms of support for life itself.”979 The anxiety over the gender identities of trans parents (an urge to protect the child from “deceptions” of those upon whom the child is dependent) is case in point. Theorizing the self-determination of gender through histories and practices of international law, and through its articulation within family law, suggests that all its elements, the individual self and its assumed ability for autonomous determination, and the formulation of gender identity as a self-evident right, require different imaginaries. By now, multiple critiques have voiced concern regarding the individualistic framework of laws and policies known as gender self- 975 Stanley, supra note 31 at 91. 976 Burke, p.37 977 Susan Stryker and Nikki Sullivan argued that early trans resistance was motivated in part by the emergence of guidelines for providing gender affirmative care, that is by the rise of trans pathology which also ushered in the “prospect of a newly available transsexual mode of embodiments” (see: Stryker & Sullivan, supra note 50 at 59. It is believable that new legal avenues for recognition might also provide the conditions to support further organizing for resistance to social oppression. 978 Spade & Rohlfs, “Legal equality, gay numbers”, supra note 141. 979 Butler, supra note 397 at 50. 212 determination, and the humanistic framework of trans demands more broadly.980 It is more difficult to locate concrete ‘solutions’ to the tension between the need for legal recognition, often voiced by those who are most susceptible to trans exclusion, and the imperative to resist systemic harm entailed in legal recognition, most effecting those same communities. Following Brenda Cossman in accepting the non-dualism of freedom, and paraphrasing Spivak in admitting the things that “we cannot not want,”981 the next section offers some conclusions, addressing the problem of the desire to be an individual and the problem of individuation, both inscribed in the idea of sovereignty. Anywhere “I” Can Run In The Force of Non-Violence, Judith Butler argues that letting go of the individuated body and of the sovereign nation state as a “unit” is required “in order to understand one’s [and the nation’s] boundaries as relational and social predicaments.”982 Countering the thesis of the “state of nature,”983 Butler argues that “no body can sustain itself on its own.”984 Butler suggests that we replace the deployment of dependency, that confirms colonialism and racism and situates the colonizer as the adult in the scene, with an acceptance of interdependence as a condition of equality.985 Within the actual histories of the redistribution of sovereignty through self-determination, independence itself is revealed as a limited framework for breaking the ties of dependency. In the practical implementation of a right for gender identity, the individuated (independent) self- determined subject is always already dependent on the state, the law, and on others to affirm them. The answer, Butler suggests, is not to re-inscribe paternalistic justifications, but rather to 980 For a review of these critiques see: Randi Gressgaard, “When trans translates into tolerance-or was it monstrous? Transsexual and transgender identity in liberal humanist discourse” (2010) 13:5 Sexualities 539–561. 981 Brenda Cossman, “Reflections of a Queer Fish” (2019) 122:1 Feminist Review 172–176 at 122. 982 Butler, supra note 397 at 45. 983 That is the predicament of the social contract (between individuals and peoples): “From Hobbes to Locke, Rousseau to Rawls, political sovereignty is generated by the prepolitical sovereignty of the subject in the state of nature and legitimated by the postcontractual sovereignty of the subject in society. The sovereign state brings into being and secures the sovereign social subject, even as it appropriates that subject’s political sovereignty for the making of its own.” (see: Wendy Brown, Walled states, waning sovereignty (New York: Zone Books, 2010) at 108.) 984 Butler, supra note 397 at 49. 985 Ibid at 47. 213 depathologize dependency and recognize “that we inhabit the world together in relations of interdependency. Our fates are, as it were, given over to one another.”986 What would a non- individualist or non-sovereign account of gender self-determination entail? As I have shown, the concept of sovereignty in self-determination demarcates the territory of the legal subject in line with pre-existing geographies of power. The presumption of universal autonomous units, of nation-states and of individuals, sustains the apparatus of differentiation and signification, of biopower. Looking at this function of sovereignty, I argued that the binary between sovereignty and biopower does not accurately reflect the dialectics of self-determination. Susan Stryker and Nikki Sullivan further complicate this binary and suggest a relational account of sovereignty and biopower in the context of trans rights. Stryker and Sullivan explore the historical role of the ‘wrong body narrative’ in asserting sovereignty over the body as one’s property, and enabling demands toward the sovereign power of medico- juridical institutions.987 In mobilizing the deviant identity category of transsexuality, trans subjects struck a “deal with sovereignty” to “make live” bodies that the sovereign power formerly had “let die.”988 Through these negotiations, the former street queen of the radical Compton riots989 medically transitioned to be a woman entitled to the legal classification F.990 Trans demands have not taken a recent neo-liberal turn from an otherwise radical history. Rather, trans demands were already caught up in individuating strategies of Eurocentric modernity “in which the deployment of 986 Ibid at 51. 987 “[I]n a socio political context in which the body is commonly understood as an object owned by the subject who inhibit it, such an improper state [i.e., a body that is not recognized as proper to the subject] is both undesirable and something the subject has a right to overcome” Stryker & Sullivan, supra note 50 at 57. 988 Ibid at 60. 989 1966 riots in San Francisco led by transwomen of colour sex workers. The riots are considered to be one of the first incidents of queer public resistance the US and a pivotal moment in trans political organization (see: Susan Stryker & Victor Silverman, “Screaming Queens: The Riot at Compton’s Cafeteria (film)” (2005) San Francisco: Frameline Distributors.). 990 Stryker & Sullivan, supra note 50 at 59. 214 identity itself as a liberatory political category” becomes a technology for obstruction, reproduction, and legitimization of the structural working of power.991 The critical analysis of sovereignty demands expanding the notion of biopower. 992 Within the liberal imaginary, sovereignty is understood as an unconditioned, unitary, final, and decisive power, expressed directly through the law. 993 In contrast to this coherent power, Foucault positions biopower as a decentralized form of power in which laws are understood to be tactics for governmentality, “rather than as determinative.” 994 In the context of self- determination of peoples and its relation to self-determined gender identity, thinking of laws as tactics suggests that attributing the power to self-determine to the individual is a legitimating fiction of power, 995 a disciplinary tactic deployed on a population-wide scale. The body’s integrity, or better said, the integration of the body as unified coherent stable object, which is both presumed as precondition for becoming an autonomous subject and protected as a right to autonomy, is a “quintessentially performative speech act,”996 an act of social power. Birth assignment is performative in that it produces bodily integrity, transitioning the newborn’s body into an object that can be classified as a coherent and stable sexed body through inscription of their genitals. In the name of the individual right to bodily integrity, a right to gender identity continues this logic by conceiving “the body as an improper object of the subject.”997 The claim of the wrong body configures trans subjects as those having alienable rights in the private property of their body and “a right to act upon that property according to its 991 Ibid at 60. 992 For an elaborate argument suggesting that sovereignty is not only “a ruse that masks the mechanisms through which power actually operates” but also “map[s] power’s legitimating fictious, fictions specific to the emergent nation-state of Europocentric modernity,” see: Stryker & Sullivan, supra note 50. 993 Brown, supra note 982 at 51. 994 Spade & Rohlfs, “Legal equality, gay numbers”, supra note 141. 995 Stryker & Sullivan, supra note 50 at 22. 996 Ibid at 51. 997 Ibid at 55. 215 own sovereign will,”998 i.e., to self-determine. And so a self-identified gender is also a means to “make live” trans bodies, but it happens simultaneously with their recuperation by biopower.999 According to Stryker and Sullivan, trans people’s claim for life “should not take the form of a right to […] self-determination,” because it expresses a specific legitimating fiction in which sovereign will is imagined as a form of capital. This fiction imagines “an autonomous, transcendent, universal body, that, in its infinite malleability is ultimately unattainable.”1000 Instead of relying on a binary between a radical past and liberal present, Stryker and Sullivan recognize a need to “resist concrete threats of imminent death” while aiming “life along a line of flight that seeks to escape from the coercions of sovereign violence.”1001 According to Hilary Malatino, lines of flight, in the work of Deluze and Guattari are as follows: [M]odes of escape, moments of transformation, ways of becoming other- than-normative, and ways of acting in excess of, or insubordinately in relationship to, repressive forces. Lines of flight have the capacity to deterritorialize, to undo, to free up, to break out of a system or situation of control, fixity, or repression.1002 Opening up the body’s ability to be deterritorialized, instead of thinking of bodily integrity, i.e., the cornerstone of the right for bodily autonomy, Stryker and Sullivan think of the body’s ability to be integrated “as a biopolitical resource into a lager sociotechnical field, or into an apparatus such as the state.”1003 This ability to integrate situates the individual corporal body in relation to the collective body. Within these relations, “the lives of bodies become enmeshed in the lives of nations, states and capital forms.”1004 998 Ibid at 57. 999 Ibid at 60. 1000 Ibid at 61. 1001 Ibid at 60. 1002 Hilary Malatino, “Nomad science” (2014) 1:1–2 Transgender Studies Quarterly 138–141 at 138. 1003 Stryker & Sullivan, supra note 50 at 51. 1004 Ibid at 52. 216 Thus, demands for recognition of deviation from assigned territories of bodies are demands for new forms of social relationality that refigure the relationship between the corporal body and the body politic.1005 That is, Stryker and Sullivan wish to replace the autonomous subject with a relational one by negating the integrity of the body in favour of its ability to integrate. Returning to my own legal inquiry, I ask what might be the normative implication of this line of flight? You Know What Paradise Is? It’s a Lie The history and current practice of trans “negotiations over life and death between sovereignty and its subjects”1006 are generative. Trans embodiments exceed the institutional discourse about them, e.g., the wrong body was always a story people used in order to get access to medical care. As Viviane Namaste reminds us, people chose to live in excess of gender expectation, with or without bodily modifications, well before the law recognized them.1007 Trans people become mothers and fathers through parental praxis, regardless of legal recognition. Trans legal engagements expose a long tradition of practicing alternative embodiments alongside official ones. Learning from what trans people already do, we might imagine an order of multiple orders. In this order of multiple orders, sex would neither be a stable status determined at birth nor later self-identified; it would not entail specific rights and duties. On the contrary, legal structures would support the abilities, competences, character, and conduct required to sustain interdependent relationships within and between individuals and collectives. For instance, a parent-child relationship should be constituted not through providing specific genetic material or contractual obligation, but as a reflection of the lived reality of a given family in support of the parent’s ability to care for their child.1008 1005 Ibid at 61. 1006 Ibid at 58. 1007 Viviane Namaste & Dalia Tourki, Keynote Presentation: Trans Justice and the Law: From Then to Now, From There to Here (McGill University Faculty of Law, 2019). 1008 Nevertheless, the question arises about what happens when a person refuses to care for a child, yet this question also arises in current formulations of parental designations. Though currently the law can oblige the parent to assume responsibility, in effect this only means financial support. In the alternative imaginary I am suggesting here, communal relationships of interdependency would be more effective than state sanctions. As a transitional model 217 Perhaps self-determination of gender should be better understood in terms of indeterminacy, as a tool for mitigating the structural harms caused by historical and current hegemonic imaginaries of gender enforced through state apparatus. As a ‘right’ for indeterminacy is a prohibition on differentiation and signification of sex attributes, this ‘right’ is better understood as an institutional obligation for reparations for discrimination, exclusion, and violence in relation to incongruence with hegemonic gender expectations. Admittedly, the above normative formulations cannot escape the limits of the law and its reliance on fixed categories of sameness and otherness. A biopolitical account of trans demands must admit that opening up new routes of identification and expression inevitably facilitates the conditions for further consumption within logics of accumulation. 1009 The above normative suggestions are, at most, incitements for moments of transformation, invitations to think of ways of becoming, modes of escaping from the “coercion of sovereign power.”1010 Like any other liberatory fantasy, I fail in escaping the political desire for a unified narrative that leaves space for incoherence, for a multiplicity of possibilities of being and doing, for unexpected indeterminacy.1011 The law is a doctrine of determinations, of differentiation and significations, of making decisions on who and what is ‘just,’ inevitably orienting the options of critique to appeals toward justice. To this end, Sullivan and Stryker provide a responsa (that, like proper Jewish and Islamic responsa, relies on the precedents of earlier authority): What gambit with sovereign power might win life for themselves, what appeal to justice might be viable? While speculation would be reckless, we can follow Derrida in suggesting that ‘justice is not a present entity or acting as a parent at birth, that is, assuming responsibility, would assign a parental status that would entail responsibilities and privileges designed to support relationships within the family and with its broader communities. 1009 Dan Irving et al, “Trans* Political Economy Deconstructed A Roundtable Discussion” (2017) 4:1 TSQ 16–27. 1010 Stryker & Sullivan, supra note 50 at 60. 1011 Robyn Wiegman, Object lessons (Duke University Press, 2012) at 306. 218 order, not an existing reality or regime; nor is it an ideal’1012towards which we can chart a path. Claims of justice solicit us from a future we cannot know; they are a becoming, an opening to alterity, to differences, or to différance. Our experience should prepare us to ‘welcome the monstrous arrivant.’1013 To return to Pakistani law, does it provide an opening for différance? The law is an elaborate piece of self-identification legislation. Its stated goal is: “to provide for protection, relief and rehabilitation of rights of the transgender persons and their welfare and for matters connected therewith and incidental thereto.”1014 Beyond a right for self-attested gender identity, the law addresses education, employment, healthcare, housing, access and enjoyment of public goods and services to hold public or private office, voting rights, assembly rights, and Muslim inheritance rights. The law obligates the government to build protection centres and safe houses, to train public servants, including law enforcement and medical agencies, to provide incentives and loans to start small businesses, and to develop special vocational programs. The law provides conditions not just for recognition but for the redistribution of life chances. As noted, the law has been very partially implemented 1015 and has problematic provisions, including criminal offences in relation to begging and an Islamic-centred approach detrimental to other religious groups. 1016 The law also defines transgender persons under predetermined categories, albeit addressing culturally specific terms and mixing them with Western terminology. That is, the law delineates the contours of the trans body politic in Pakistan. The law has been ineffective in addressing the extreme poverty that Khawaja sira communities are confronted with during the COVID-19 crisis, as their ability to make a 1012 Jacques Derrida, Points..: Interviews, 1974-1994 (Stanford University Press, 1995) at 307. 1013 Stryker & Sullivan, supra note 50 at 60. 1014 “(n) “Transgender Person” is a person who is:- (i) Intersex (Khunsa) with mixture of male and female genital features or congenital ambiguities; or (ii) Eunuch assigned male at birth, but undergoes genital excision or castration; or (iii) a Transgender Man, Transgender Woman, KhawajaSira or any person whose gender identity and/or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth.” 1015 For a review of the limitation in implantation see: Pakistan: Transgender Persons (Protection of Rights) Act, 2018 - A Briefing Paper (Geneva, Switzerland: International Commission of Jurists, 2020). 1016 Redding, supra note 968 at 7–10. 219 livelihood by begging (already limited by this law), or to perform at weddings and other events, has almost completely disappeared.1017 Some have not been able secure access to minimal state relief even though they now have national identity cards.1018 What most interests me about the Pakistani law, regardless of its limitations, is the fact that it is the product of emerging collectives of Khawaja sira and trans activists (backed by international organizations)1019 reflecting non-hegemonic forms of social relationality. These collectives work to challenge social production and state-sanctioned regulations through an innovative concept of “gender sovereignty.”1020 This law must be read on the backdrop of the colonial legacies and postcolonial dynamics structuring the social conditions and legal regulations that the law seeks to challenge. The British colonial rule enforced standards of Western masculinity inter alia by criminalizing gender nonconforming communities. The colonial practices of criminalization, exclusion, and marginalization, like other characteristics of Western constitutional orders, were folded into the Pakistani state structure. 1021 In short, Pakistani trans communities are “caught between [a] proverbial rock and hard place,” between colonialist legacies, postcolonial nationalist conservatives, and neo-colonial human rights discourse.1022 Within these complex histories and present conditions, the negotiations of the Khawaja sira and trans activists with the postcolonial sovereign refuse a monolithic account. Instead, they 1017 “Covid-19: Virus pushes Pakistan’s transgender dancers out of their homes - Times of India”, online: The Times of India 220 reveal that the sovereignty transactions between the local and global, the colonial and postcolonial, individuals and collectives, are the property of both the law and the resistance to it. Any push toward a praxis of revolt, as an index for the horizons of possibilities already here,1023 must be able to reclaim these dysphoric tensions, to replace the endless drive for negation and/or resolution, embracing the enigmas of (legal) embodiments. Within the relation of corporal body and body politic, gender is just one way in which power traps subjects into bodies to produce “individuals who are at once constrained and enabled by norms.”1024 Still, gender identity, as a subjective experience that marginalizes the biopolitics of its very production, is a normative orientation of oneself in relation and toward others, “seeking recognition for behaviors, attributes, and sensations that one regards as important.”1025 Can we hold onto people’s desire for a gender identity and hold the law accountable for the becoming of gender? I’ve Been to Paradise, Never Been to Me Stryker and Sullivan suggest that the line of flight away from the coercive paradox of sovereignty “should not take the form of a right to morphological self-determination,”1026 but instead should be considered acts of mayhem. Stryker and Sullivan recount a history in which medical ‘sex change’ was understood foremost as orchidectomies and penectomies (surgical removal of testes and penis), while genital reconstruction was considered an optional ‘cosmetic’ procedure.1027 These surgeries were openly talked about as a desire for amputation, as this procedure redefined the relationship with the state.1028 Initially, surgeons in the US refused to 1023 Stanley, supra note 31 at 89. 1024 Morland, supra note 15 at 112. 1025 Ibid. 1026 Stryker & Sullivan, supra note 50 at 60. 1027 Ibid at 55. 1028 Ibid. Notably, the first case of sex reclassification I found, that of Karl M.Bear, also included a surgery; it is unclear what kind of surgery, but it was definitely neither orchidectomies nor penectomy, as he was assigned female at birth (see: supra note 96). 221 perform such surgeries claiming they contravened mayhem status “by destroying the possibility of orgasm and depriving their recipients of reproductive capacity.”1029 Mayhem laws were historically a prohibition placed on men of fighting age to cut off fingers of their sword hands. Mayhem emerged not as a prohibition against any kind of dismembering of body part, but “bodily transformation that compromised a particular body’s ability to be integrated into a particular social field as a resource for the exercise of sovereign power.”1030 It was a crime committed by the individual against the sovereign,1031 a crime against the “collective body politic, one that simultaneously dismembered the pacts and covenants binding together bodies of flesh, bodies of knowledge, and social bodies.”1032 Reading these medico-juridical histories side by side, Stryker and Sullivan conceptualize the desire for amputation as “an act of negation that opens a space for possibility, a space in which the desire for new forms of social connectivity, as well as new forms of embodied subjectivity, can begin to be articulated.” 1033 Amputation skews the relations between the individual corporality and body politic, precipitating “confusion, disorder, disability, and the disintegration of leviathan,” that is of the collective body of the nation-state.1034 Cutting off that body part, that is in the trans context the reproductive capable genitalia, is to wage war against sovereignty. In that sense, birth assignment of sex and sex classification are a form of anti-mayhem law. The wrong body narrative justifies an act of amputation, of negation of the sexed body through surgery, in a process in which the dismembered unreproductive body becomes re-membered as a body that “reproduces the visual norms of gendered embodiment that form part of the routine functioning of the social body.”1035 In other words, the wrong body narrative is an instrument for sovereignty negotiations in which one is allowed to access medical technologies and public life 1029 Ibid at 54. 1030 Ibid at 57. 1031 Ibid. 1032 Ibid at 58. 1033Ibid at 53. 1034 Ibid at 58. 1035 Ibid at 59. 222 in exchange for reaffirming some version of gender normativity. At the same time, amputation as an act of mayhem does open up the time and space for a “desire which at first cannot, because the enabling historical conditions have not yet taken shape, name and express itself in more positive term[s],”1036 a desire expressing what is yet to become. A right for gender identity articulated through a wrong body narrative has enabled reclassification of sex through a negation of reproductive corporality, but insofar as it is also protected by the same bodily right for integrity, this negation no longer requires cutting of reproductive capable genitals. Nevertheless, it creates a cut between corporality, identity, and the collective body of the nation-state, that is, between “bodies of flesh, bodies of knowledge and the social bodies.”1037 As Georgis argues, “the traces of queerness always emerge from within the gaps and fissures of the symbolic, never outside it.” 1038 Innate gender identity creates a rift from within the symbolic, not outside of it. This rift allows for a negation of the negation. Thinking of trans parenthood as mayhem, the fissure becomes a rupture. A trans parent’s gender identity is a double amputation of the social body. Firstly, in the negation of the sexed body which provides them with a recognition of their gender identity as individuals, and secondly, in the negation of the negation by reclaiming the reproductive capable genitalia, suggesting a line of flight that does include a “right for self-determined morphology.”1039 Perhaps that is what makes their acts of mayhem, acts of interdependency and love, so dangerous. Through the concept of mayhem, we can better understand why the gender identities of trans parents awaken the state’s desire for coherence and stability. In their dismembering of normative bodily configurations they create confusion and disorder in the heart of the nation- state, the public registrar, undermining the specific ways in which bodies are integrated as biopolitical resources for reproduction. Stryker and Sullivan contend that the body is always integrated into a larger apparatus that produces us as individuals and links us to others: 1036 Ibid at 55. 1037 Ibid at 50. 1038 Georgis, supra note 338 at 130. 1039 Stryker & Sullivan, supra note 50 at 60. 223 The integrity of the body – that is, the ability of the body to be integrated – is thus, paradoxically, dependent on its enfleshment as always already torn, rent, incomplete, and unwhole. It is this aspect of bodily being that the liberal discourse of property rights in oneself does not, and cannot, account for; it is this aspect of bodily being 1040that we seek to highlight when suggesting that individual demands for bodily alteration are also, necessarily, demands for new forms of social relationality – new somatechnological assemblages that ethically refigure the relationship between individual corporealities and aggregate bodies.1041 I feel that trans parenthood and the resistance to it suggest that the negation of bodily integrity does not necessitate unwholeness and incompleteness. Instead, it is possible that a reintegration of the body can produce a unified subject. A subject that is not coherent and not stable, whose wholeness does not preclude interdependency and relationality, but is imminently spreading outwards from the experience of identity. Looking at the state’s gender dysphoria, its anxiety “arising from a conflict between the way one feels and thinks of themselves and their physical or assigned gender,”1042 in the context of its sovereignty negotiations with trans people and the ongoing failure of trans subjects not to exceed biological classification, I wonder whether the state and trans people share one dysphoric experience. If we are not individuals and we are never outside the symbolic, then there is no personal experience of pain, suffering, anxiety, and dysphoria. Perhaps the state is dealing with its own difficulties to hold onto the conflicting nature of gender by forcing it on trans subjects and perhaps trans people attempting to ‘cure’ their dysphoria by turning to state recognition. I am not saying that gender dysphoria cannot describe one’s personal experience or denying that dysphoria can be extremely challenging. But maybe gender dysphoria, like gender identity, has different (though interconnected) meanings as a subjective experience and as a normative framework. Accounting for the ways in which a right for gender identity makes 1040 Ibid at 61. 1041 1042 note 615. 224 invisible how sex classification polices individuals and collectives, as I argued throughout this dissertation, indicates that the imperative negation of the dysphoric body hides the possibility for bodily becomings “extending beyond the limits of dominant corporeal and conceptual logics.”1043 Beyond an autonomous conception of the body and the self, trans bodies can give birth and/or have hot gay sex, they can orgasm and produce pleasure and/or sperm, or not have sex at all, they can use medical technologies for gender affirmation and they can de-transition, they can do or not do all sorts of things that have yet to become, but are definitely not assigned at birth. Doing and being all of these things creates more mayhem and not less. Reclaiming of the body that was prohibited from existing, first in the name of protecting reproductive capacity and later deemed for sterilization, is an act of mayhem. It does not make those bodies less ‘trans’ in the sense of skewing the relationship between individual corporeality and the aggregated bodies, and it does not mean that one has to consider themselves binary or non-binary, right or wrong—they just need to be. Instead of striving for bodily disintegration, we might think of reintegration as a form of rebeginning1044 that unsurprisingly also emerges with new life, in which one can reclaim their moment of birth through a new integration of their body and self within a relationship of interdependency, where parent and the child are interchangeable in love. As Dina Georgis writes: In love, where Eros has an object (an other), we avoid pain because Eros is the drive that tends toward tension reduction; paradoxically, however, in love we are also more attuned to our dependencies, to the traumas of differentiation, our stable stories in revolt, and thus we return to pain.1045 In returning to pain and mourning and to May, and all the other trans women and mothers whose stories and lives get lost in the trans global push toward a recognition of a right to gender identity, I offer a very limited normative vision (excluding the call to immediately end birth 1043 T Garner, “Becoming” (2014) 1:1–2 Transgender Studies Quarterly 30–32 at 30. 1044 Georgis, supra note 338 at 108. 1045 Ibid at 109. 225 assignments) by formulating a reparative reading of gender dysphoria. Instead of terms of distress, I want to think of dysphoria as the ability to hold onto transitivity,1046 and to move across categories of embodied specificity. 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(J.), Re, 2004 CanLII 76357 (Can.) Centre for Gender Advocacy c. Québec (Attorney General), 2015 QCCS 6026 (CanLII)(Can.) Droit de la famille – 480, [1988] RJQ 1138, SOQUIJ AZ-88031110 (QCTJ) (Can.) Christine Goodwin v. the United Kingdom (application no. 28957/95) (ECHR 1992) B v France, Merits, App No 13343/87, A/232-C, [1992] ECHR 40, IHRL 64 (ECHR 1992) O.H v Germany App. No. 53568/18 (Communicated on Feb 6 th 2019)(ECtHR) AP, Garçon & Nicot v France App Nos 78995/12, 52471/13 and 52596/13 (ECHR, 6 April 2017) Gender Identity and Equality and Non-Discrimination of Same-Sex Couples, Inter-American Court of Human Rights, Advisory Opinion No. OC-24/17 (IACHR 2017) R (TT) v Registrar General for England and Wales & Ors [2019] EWHC 2384 (Fam) (UK) R (on the application of JK) v Registrar General for England and Wales [2015] EWHC 990 (Admin) (UK) Nyla Foster et al., V. Jeff Anderson, et al. 2:18-CV-02552 (D. Kan. R ) (US) Stacie Ray Basil Argento, et al. V. Lance Himes, et al., 2:18-cv-00272-MHW-CMV (S.D. Ohi)(US) Beatie v. Beatie, 235 Ariz. 427, 430, 333 P.3d 754, 757 (Ct. App. 2014)(US) HCJ 3148/18 Anonymous v. The Minister of Justice et.al (Isr.) CA 7918/15 Anonymous v Friedman (November 11th 2015)(Isr.) XII ZB 660/14 (Germany) BGH XII ZB 459/16)( Germany) 247