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Gender Self-Determination Troubles

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Gender Self-Determination Troubles 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. ii 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. iii 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. iv 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 v 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
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